Litigation challenge to Tennessee’s “parks” statute – update.

On February 16, 2023, a lawsuit was filed by Stephen L. Hughes, Duncan O’Mara, Elaine Kehel, Gun Owners of America, Inc., and Gun Owners Foundation against Bill Lee, in his official capacity as the governor of the state of Tennessee. See, Stephen L. Hughes, et al., v. Bill Lee, Chancery Court for the 28th Judicial District, Gibson County, No: 24475. The Plaintiffs’ attorney in the lawsuit is John Harris (also TFA’s executive director).

In the lawsuit, the plaintiffs seek a determination by a state court that Tennessee’s “parks statute” (Tennessee Code Annotated § 39-17-1311) and Tennessee’s state-wide “gun free zone statute” (Tennessee Code Annotated § 39-17-1307) are unconstitutional under the Tennessee Constitution. The lawsuit is also based on similar lawsuits that have been filed in other state and federal courts following the United States Supreme Court’s June 2022 ruling in New York State Rifle and Pistol Association v. Bruen. Thus, this lawsuit directly presents perhaps the first major challenge to Tennessee’s unconstitutional statutory schemes following the Bruen decision.

The Tennessee “parks” statute (Tenn. Code Ann. § 39-17-1311) makes it a crime to carry a firearm, any firearm, in a public recreational area including public parks, public greenways, campgrounds, etc. That criminal statutory scheme does provide that a citizen, who has a handgun permit, has an affirmative defense to the criminal charge if they are carrying a handgun in the statutory “gun free” zone but the burden in on the citizen to prove that they meet all the elements of the affirmative defense. Thus, a permit holder who is carrying a handgun in a public park, even concealed, is subject to being stopped, detained, questioned and even charged or arrested by law enforcement – any the citizen has the statutory “right” to demonstrate to a jury that the facts supporting the affirmative defense exist.

The second challenged statute is Tennessee’s state-wide “gun free zone statute” (Tennessee Code Annotated § 39-17-1307) which makes it a criminal offense for anyone to carry any firearm anywhere in the state with the “intent to go armed.” That statute applies even in an individual’s own home or while on their own property. Once again, the statutory scheme provides the individual with an affirmative defense (See Tennessee Code Annotated § 39-17-1308) but that does not protect the person from being stopped, detained, questioned, charged or even arrested by law enforcement.

As part of the lawsuit, Plaintiffs asked the court to grant a preliminary injunction that would declare the statutes likely unconstitutional and that would prohibit the enforcement of the statutes pending a final ruling.

On November 17, 2023, Governor Lee and Attorney General Skrmetti filed a response to the Plaintiffs’ motion for a preliminary injunction. In that response, the State defendants asserted that the trial court lacks the legal authority to grant any injunction that would prohibit Governor Lee and other state officials from enforcing an unconstitutional law. Of note, the State defendants do not address the more material question of whether Tennessee’s statutes are unconstitutional.

The court hearing on whether to grant the preliminary injunction is now scheduled for December 19, 2023.

As an aside, the lawsuit would have been unnecessary if the Governor and the Tennessee Legislature had taken affirmative steps pursuant to their constitutionally required oaths of office to repeal any laws in Tennessee which violate the rights of citizens as protected by the Second Amendment as shown by the Bruen decision. To date, these state officials have not taken that step and, consequently, the effort to restore and protect our constitutional rights is being waged in the courts by citizens. Significantly, that effort is being opposed by Governor Bill Lee and Attorney General Jonathan Skrmetti.

Tennesseans should be demanding that the Governor, the Attorney General and the members of the Tennessee Legislature immediately move forward to make sure that any and all laws, regulations, ordinances, and even policies of any government entity in the State which may remotely violate the rights protected by the Second Amendment are immediately nullified and repealed.