One of the responsibilities of the Tennessee Attorney General is to answers legal questions posed to him about Tennessee law. These questions are usually posed by members of the Tennessee Legislature. While the AG’s opinions are respected by the courts, they are not binding. This means that judges in Tennessee do not have to agree with, or follow, the AG’s opinion on a given topic.
I’m always interested in what the Attorney General has to say about various legal topics, though I also occasionally disagree with the AG’s opinions.
Just a few of weeks ago the AG published Opinion Number 18-22, which answers two closely related questions about police officers carrying weapons in “gun-free zones,” and whether property owners can verbally prohibit police officers from carrying weapons onto private property. This opinion presents good examples of why I sometimes disagree with the AG. You can see a copy of Opinion No. 18-22 here.
In answering both of these questions the AG does not condition his statements about a private property owner’s right to prohibit police officers carrying weapons with a statement that his conclusions assume that the officer has a lawful right to be on the property in the first place. While it is clear that a property owner may not require an officer to disarm before entering a property, this is only true if the officer has a right to enter the property in the first place. If the officer does not have a right to enter the property, then the property owner has an absolute right to exclude the officer, or anyone else for that matter, from his property. After all, that is the very definition of property “ownership.” Without the right to exclude, there can be no ownership. Property owners do have the right to exclude officers, absent some legal justification for the officer to enter the property such as a warrant or exigent circumstances.
I find it alarming that this basic right to exclude officers has become so riddled with exceptions, and so ignored by officers and courts alike, that the AG doesn’t even think to make this point in an opinion in which this point is crucial to a correct response. This reflects a grave situation in this country. Citizens, courts, law enforcement officers, attorneys, and state officials have effectively forgotten that police officers do not have the right to simply go anywhere they like, anytime they like, and do whatever they like, for any reason or no reason at all.
This problem is reflected in another AG opinion, published in January of this year. Opinion 18-04 discusses four closely related questions about whether cities or counties have the authority to create “gun-free zones,” and when civilians with concealed carry permits can carry weapons in public parks. Again, none of the AG’s responses state, or even consider, the fact that the right to bear arms is the underlying norm and any suspension of that right must be justified according to the TN constitution. Again, the AG’s lack of acknowledgement of this point, as a starting presumption, is the result of years of abuse of this right leading to a general forgetfulness that it exists at all.
However, the most shocking part of either opinion 18-04 or 18-22, is that on page 3 of 18-04, the AG includes a very important word that simply is not in the actual Tennessee statute. Tennessee statute 39-17-1311 states that citizens with a concealed carry permit can legally carry a weapon, concealed or not, in parks and other specified recreational facilities and properties. However, while describing this statute the AG adds the word “outdoor” to the recreational facilities and properties. The statute does not say “outdoor.” By adding this word the AG has taken it upon himself to re-write Tennessee law and attempt to limit the constitutional rights of Tennessee citizens. This is a usurpation of the authority of the Legislature.
It is a very good thing that the opinions of the Tennessee Attorney General are not binding upon the Tennessee courts.