July 17, 2023 – This past weekend Governor Bill Lee asserted it was “a disservice to parents and teachers” when Chief Drake in the Metropolitan Police Force in Nashville announced that Metro was not applying for $5.25 million in state funding for “School Resource Officers” (“SROs”). According to the news report, Metro Nashville made that decision “saying the agency does not have capacity to staff Metro Nashville’s 70 public elementary schools.”
After the Covenant School murders in March 2023, Governor Lee has been out front not only attacking the rights of citizens under the Second Amendment with his “Red Flag” demands, but he also ushered the state into allocating $230 million for school safety enhancements including placing armed officers in schools. Governor’s press release.
But Governor Lee’s administration is knowingly and intentionally placing children who attend and the families that use daycare facilities, the individuals that work at those facilities and the institutions that run those facilities at risk because his administration is enforcing an unconstitutional state regulation that prohibits the individuals and those facilities that provide child care from having any firearms on the property. See, Tenn. Comp. R. & Regs. 1240-04-01-.12(14)(d) That regulation provides:
(d) Firearms shall not be permitted on the premises of a child care agency, in any vehicle
used to transport children for the child care agency, or in the presence of a child.
1. In a private residence, deadly weapons and potentially hazardous items, such as
power tools, are permitted on the premises, but shall be kept locked, out of sight,
and inaccessible to children at all times. Firearms kept in a private residence
shall be locked and unloaded with ammunition locked up separately.2. The provisions of this subparagraph (d) are not applicable to law enforcement
See, Tenn. Comp. R. & Regs. 1240-04-01-.12(14)(d)
officers.
Child care facilities are not classified as “schools” in Tennessee. Rather than being under the Department of Education, they are instead licensed by the Department of Human Services. T.C.A. §§ 71-3-501 et seq. Many child care facilities are privately operated by churches, nonprofit organizations and in private homes.
The Lee Administration enforces the “anti-firearm” regulations against child care facilities including statements indicating that a facility might loose its license to operate if it, for example, hires a private armed security officer to protect the facility, families, workers and children while at the facility.
Long before the Covenant School murders, privately run child care facilities, including one just miles from Covenant School, were concerned about church and day care security. Through an attorney, they contacted Bill Lee’s Department of Human Services for clarification about whether churches could adopt policies to allow church officials, staff and day care workers to be armed (similar to the way state law has allowed private schools to make such choices since at least 2016). In response to a written inquiry dated July 15, 2022, from a church’s attorney, an attorney with the Department of Human Services responded in writing on July 19, 2022 that firearms are prohibited (except for on-duty law enforcement) on the grounds of any licensed daycare. (The email chain is included below in full).
In response to the statement by an attorney in the Lee Administration’s Department of Human Services that firearms are prohibited by the licensing regulations (not statutes – regulations) in Tennessee for day care facilities, the attorney for the church asked:
Our research indicates that, unlike schools, there is no state statute which addresses firearms on child care center properties. So, the questions we are looking at are as follows:
Email chain with DHS attorney
1) Are firearms prohibited on the religious institution’s property (assuming it is not posted under TCA 39-17-1359 and assuming it is not licensed as a school under the Department of Education) and if so pursuant to which statute(s) or validly enacted regulations. That is, does the fact that a child care center is operating under the ownership of the church and on church property render all possession of firearms on the church property a violation of the child care center’s license?
a) If there is a prohibition, does it only apply in that portion of the property where the child care center operates?
b) Do the regulations apply when the child care center is “closed”, that is, after hours or on weekends?
2) If the church operates and is licensed as a proprietary security organization under Title 62, are firearms prohibited relative to those individuals who have state issued armed guard certifications under or related to that proprietary license?
3) If the church has volunteer members who operate informally and without compensation as a volunteer security team (there is an AG opinion on this) would that violate the child care center’s license?
4) Has the Department of Human Services obtained an AG opinion as to whether its regulations are in violation of the state pre-emption statute TCA 39-17-1314 relative to the regulation of firearms in the state?
In response that that inquiry, the Lee Administration’s Department of Human Services attorney wrote back on August 11, 2022:
Good afternoon, John—CACL has reviewed your client’s questions, and can only refer back to the applicable child care licensing law/rules:
Email chain with DHS attorney
1.Tenn. Comp. R. & Regs. 1240-04-01-.12((14)(d) prohibits firearms on the premises of a child care agency. The part of or entirety of the premises that is licensed by DHS as a child care agency will be specific to each property (see, Tenn. Comp. R. & Regs. 1240-04-01-.16 Physical Facilities). Child care agencies may only operate within the scope of their license and must operate in compliance with all child care rules/laws (Tenn. Comp. R. & Regs. 1240-04-01.03(2)).
2.Tenn. Comp. R. & Regs. 1240-04-01-.12(14)(d)(2) provides that the firearms prohibition does not apply to law enforcement personnel. DHS child care law/rules do not address security organizations under Title 62.
3. See above rule citation. DHS law/rules do not address volunteer security teams.
4. DHS has not requested an AG opinion on the applicability of Tenn. Code Ann. § 39-17-1314.
I hope this information is helpful to you, please let me know if I can be of any further assistance.
When the attorney for the church asked if the DHS attorney if they would request an Attorney General Opinion on whether this licensing regulation violated the State’s firearms preemption statute ( Tenn. Code Ann. § 39-17-1314), the response from the Lee Administration was that it would not request guidance from the Attorney General.
On April 28, 2023, just weeks after the Covenant School murders, the Lee Administration’s Department of Human Services Child Care Services sent a communication to child care facilities in which it emphasized that the agency’s regulations prohibits any firearms on facility property and requires that if the facility is in a “private residence” that the firearms “shall be locked and unloaded with ammunition locked up separately.” The DHS email warns that a violation of this regulation is ground for a “critical violation” and a “major civil penalty”. (See full email below)
Not surprisingly, the positions taken by the Bill Lee Administration are hard to comprehend in terms of the pure disdain for private citizens, churches, and private facilities merely wanting to be prepared to defend themselves and those around them. For example, although the DHS attorney stated in the email chain from 2022 that the regulations impose a complete ban on firearms – excepting on “law enforcement” and presumably then only “on duty ” law enforcement, the DHS has recently reaffirmed that these private entities cannot even engage state licensed armed security officers to provide security inside the building! According to DHS, the licensed armed security officers can be outside the buildings. But, according to DHS if another Covenant incident were to occur at a private day care facility that armed private security officer would be required by the regulations to secure his or her firearm outside of the facility and could only enter the facility unarmed.
The following is the body of an email from Ebony Burke, who is identified as a “Licensing Consultant 2, in the Lee Administration’s Child & Adult Care Licensing division in Nashville:
I have spoken to my supervisor about your email and your concerns. We hear you and totally understand what you are going through in light of the events that occurred a few months ago; however, we must follow the rules as they are written. I wanted to let you know my supervisor and I are actively working to get you an answer that you can further understand and make sense of. My supervisor advised me that if it needs to go all the way up the chain of command on our end to get you an answer you can fully understand, she is willing to do that. For now, the armed security guards that you currently have must remain outside when armed per the rules. If stated in the contract between you and them, they need to secure the inside of the premises as well at any time when children are present, they must be unarmed per DHS rules.
Mr. Adams mentioned the laws for armed security guards in schools in his response to your email; our rules pertain to DHS licensed facilities not Metro Schools. Pertaining to the armed security guard being in the security office due to the weather or extreme temperatures, my supervisor stated if he has to walk through a licensed space to get to his office, he still cannot be armed inside the building.
If you still have any concerns about this email, you can reach out to me. My supervisor is also included on this email and you can reach out to her directly as well.
Burke Email to Facility
It is a concerning fact that Governor Bill Lee reprimands the Nashville Metropolitan Police Department for turning down grant money to provide School Resource Officers in public schools when Metro’s statement is that it does not have enough law enforcement officers to do so. Then, while Bill Lee is trying to make a public issue out of that local government decision, Lee’s own administration is telling licensed day care facilities that they cannot provide state licensed armed security officers at their own cost (there is no state grant money for the day care facilities), that the owners and operators of such private facilities are prohibited by his administration from being armed or having loaded firearms reasonably accessible and that armed security officers who are outside the buildings would have to disarm to go in the building due to issues like the weather, presumably to use the restroom or, in the event another shooter or shooters attempt to do harm in these types of facilities.
Those who own, operate and use day care facilities in Tennessee should be aware of the clear and present danger that policies such as these by the Lee Administration are creating in Tennessee. All Tennesseans should be asking why is it that Bill Lee, his administration and some of those in the state Legislature are so determined to make sure that the rights of self-defense and third party defense which are clearly covered by the Second Amendment are so regularly infringed by those who have taken sworn oaths to defend and uphold the rights protected by the Constitutions.
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