Does Ban on Carrying Weapons "Inside Any Building in Which Judicial Proceedings Are in Progress" …

apply to a judge's home when the judge is participating in judicial proceedings remotely?

Nope, says the Tennessee Attorney General in a Mar. 14 opinion (No. 22-04) that was just posted on Westlaw:

The prohibition in Tenn. Code Ann. § 39-17-1306 against carrying weapons in buildings in which judicial proceedings are in progress may be reasonably construed to apply only to those buildings in which a judge customarily conducts judicial proceedings, such as courthouses and criminal justice facilities. It does not appear that the General Assembly intended Tenn. Code Ann. § 39-17-1306 to apply to buildings from which a judge conducts a judicial proceeding remotely by conference call or videoconference, such as the judge's private residence or another similar building {[or] to other buildings such as private residences, business offices or other similar buildings from which non-judicial participants—e.g., attorneys or witnesses—might participate in judicial proceedings by conference call or videoconference.} …

First, "[t]he obvious intent of [Tenn. Code Ann. § 39-17-1306] is to ensure the safety of judges, lawyers, court personnel, litigants, witnesses, and observers present in the courtroom and to assure the proper decorum and deportment during judicial proceedings." In other words, the intent is to protect people in courthouses—i.e., in buildings where their participation in judicial proceedings requires them to come into contact with others who may pose a risk if they are armed. But a lawyer or judge or witness participating in a judicial proceeding remotely from his or her own home or office does not face the risks associated with physical presence in courthouses, so there is no reason to extend the meaning of "building" to include buildings from which people are participating remotely….

Second, the exemptions [to the statute] evince a legislative intent to include only such buildings as courthouses and criminal justice facilities in which judicial proceedings are traditionally and customarily conducted, because those exemptions apply to officials and other persons who would only be in courthouses—namely, law enforcement officers, bailiffs, marshals, and other court officers who have "responsibility for protecting persons or property or providing security."

Third, when Tenn. Code Ann. § 39-17-1306 was enacted in 1989, the commercial internet had not been developed, and remote participation in judicial proceedings was by no means commonplace. Thus, it is unlikely that the legislature intended "buildings" to include buildings from which people participate remotely in judicial proceedings. Had that been the intent, the General Assembly could have and would have implemented that intent by amending the statute as technology developed to allow remote participation. To the contrary, while the statute has been amended several times since 1989, none of the amendments evidence an intent to include buildings from which persons are remotely participating in judicial proceedings by conference call or video conference.

Fourth, the constitutional-doubt canon would make a court disinclined to interpret the prohibition in Tenn. Code Ann. § 39-17-1306 broadly to encompass private residences, since firearm possession there is protected by the Second Amendment. Construing Tenn. Code Ann. § 39-17-1306 as applying only to those buildings in which a judge customarily conducts judicial proceedings, such as courthouses and criminal justice facilities, avoids constitutional conflict and safeguards Second Amendment rights. See D.C. v. Heller (2008) ("[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms … in sensitive places such as schools and government buildings ….").

In sum, the prohibition in Tenn. Code Ann. § 39-17-1306 against carrying weapons in buildings in which judicial proceedings are in progress may be reasonably construed to apply only to those buildings in which a judge customarily conducts judicial proceedings, such as courthouses and criminal justice facilities. It does not appear that the General Assembly intended Tenn. Code Ann. § 39-17-1306 to apply to buildings from which a judge conducts a judicial proceeding remotely by conference call or videoconference, such as the judge's private residence or another similar building.

Comments

[Bubba Jones]

Only a lawyer would seriously ask this question.

[F.D. Wolf]

I recall at least two recent stories of students suspended because of a gun seen at their homes during virtual learning.

It is not difficult to imagine some left-wing, anti-gun district attorney bringing a prosecution under this statute because he spots a gun in the home of a witness testifying in a virtual proceeding.

[James Pollock]

Except that the question is how any building without a judge in it is a building where judicial processes are underway.

If you are in a judge’s home while he’s conducting judicial business with a firearm in your possession, Tennessee A.G. says you’re good to go. Apparently, we’re confident that the judges are strapped when they’re at home, so that a good guy with a gun can confront the bad guy with a gun should the situation arise.

[F.D. Wolf]

No judge is going to have in-person proceedings in his own home. You don’t want an angry litigant knowing where you live.

If the judge is in his own home, and the witness is in his own home across town, the argument could be made (though I would not make it) that both the judge and the witness are “inside any building in which judicial proceedings are in progress”

[James Pollock]

“No judge is going to have in-person proceedings in his own home.”
No shit, really? But he might have proceedings in which he sits in front of his laptop setup at home instead of sitting in front of a courtroom. this is true partly because everyone stayed at home during the pandemic, but also because of the increasing use of telepresence where the accused isn’t brought back and forth from the jail to the courthouse.

“If the judge is in his own home, and the witness is in his own home across town, the argument could be made (though I would not make it) that both the judge and the witness are “inside any building in which judicial proceedings are in progress””

As I said, you’re going to have a hard time making the case that a building with no judges in it is a building in which judicial proceedings are in progress.

[F.D. Wolf]

And now you will have an even harder time making that case, given this AG opinion.

And yet we’ve still had school districts attempt to make the case that having a gun in your bedroom during a virtual class is the same as bringing one to school or to class, which perhaps might be supported by a hyper-literal interpretation of a school policy.

I was thinking specifically of one recent case of a 9-year-old student in Louisiana who was taking a virtual class from his bedroom. His brother entered the room, knocking over a BB gun that had previously not been visible on screen. At first, the school actually expelled him, but reduced that to a six-day suspension. In response the state passed a law requiring schools to write specific policies for online classes.

[James Pollock]

“And now you will have an even harder time making that case, given this AG opinion. ”

That’s one way of reading the opinion that the building with one judge working in it isn’t a building where judicial procedings are taking place, but it isn’t how I do.

[Rev. Arthur L. Kirkland]

I have presented a petition to a judge at the judge’s home more than once.

Some matters support approaching a judge beyond court hours. Little, in my experience, focuses the mind of a young associate as much as the prospect of knocking on the front door of a judge’s house at 9 p.m., holding an ostensibly emergency petition.

I once was treated to dessert and hot cocoa in a judge’s dining room while the judge reviewed the papers before providing a signed order

[James Pollock]

If your associate works in Tennessee, tell him he can take his weapon with him when he goes over to the judge’s house.

[Rev. Arthur L. Kirkland]

I was that young associate. I did not believe I needed a firearm to fend off the cookies (or perhaps, once, pie) the judge’s wife wielded as she approached me while the judge reviewed the documents I had provided. Believe it or not, my hunch was vindicated.

(Those treats were good, but they evoked stories college football coaches had told about visits to the homes of recruits: ‘Part of this job is you have to eat that pie mom hands to you, no matter what. And it’s usually something disgusting, like rhubarb or mincemeat or Aunt Cleta’s pumpkin buttermilk raisin. But whatever it is, your job is to clean that plate and you tell her it is the best pie you ever had.’ Later, as a sports writer, I had to eat some pie in the living room — offered not by the mother of a recruit but by the mother of a coach who later who later coached the Knicks, Pacers, SuperSonics, and Spurs. I got off easy, though — I think it was cherry or apple or something reasonable.)

[James Pollock]

I don’t think this interpretation is effective retroactively.

[Krayt]

These are the same people who brought you “marijuana residue on walls isn’t just evidence of past use, but is possession in and of itself!”

[Frank Drackman]

Wow, interpreting the Law as written, interesting concept.

[F.D. Wolf]

That is the opposite of what he is doing. A textualist might say “‘any building’ means ANY building”, but the AG here is looking first to legislative intent, saying that “any building” means a building where judicial proceedings are normally or usually conducted.

[Both Sides]

F.D. Wolf is correct. I’m generally sympathetic to textualism, but this sort of case — the words of the statute seem to dictate Result A, but it’s very likely that the drafters of the statute didn’t anticipate this fact situation and if they had, probably wouldn’t have covered it the way the text of the statute literally does, so Result B is more accurate — is a problem for textualism.

[Alpheus W Drinkwater]

I don’t know, F.D. The legislature could’ve said “a courtroom,” or “any building where judicial proceedings are normally conducted,” but they didn’t. They said “any building.” It seems pretty straightforward, and the AG opinion just seems wrong to me. Even in the era before Zoom, the legislature could’ve foreseen judicial proceedings occurring in unusual places for exigent reasons.

[James Pollock]

Various jurisdictions have been experimenting with telepresence for a long time, with the defendant not actually moving from the jailhouse to the courthouse.

[James Pollock]

What is the point of forbidding firearm possession in the courthouse?
I can see a couple of benefits:
1) to cut down on the violence inherent when judgment goes against a violent person. If they aren’t armed with an effective weapon, they won’t be able to harm very many people before the guards arrive to settle things down. Sure, you’ll still get the occasional guy who stabs his lawyer with a sharpened pencil when he loses the case, but eventually, that guy’s going to run out of lawyers willing to work with him actually in the courtroom.

2) to cut down on the odds of someone successfully threatening the judge as a ruling is about to come down.

Now, extending the ban to teleconferences where the judge stays home in front of a webcam isn’t going to do much for #1 above, because the kind of trial where nobody is in the same place isn’t the kind where spontaneous violence breaks out. But number 2 seems valid. You break into the judge’s house while he’s holding a hearing on whether to let your confederate out of jail, and show him that you are armed while he’s considering ruling on what evidence is admissible, and poof! you’re able to affect the outcome. when the judge presses the panic/”send help” button, the deputies are in the ground floor of the courthouse, and might take a while to show up at the judge’s house.

[KenveeB]

Breaking into someone’s house and threatening him is already against the law, whether that person is a judge or not. Banning a gun in the house wouldn’t do anything to prevent that.

[James Pollock]

Walking through an unlocked door isn’t “breaking in”, and telling somebody you are armed isn’t inherently threatening. Either way, the Tennessee A.G.’s office is on record as declaring it not a crime.

[captcrisis]

Now you can just walk in and aim your gun at the judge, in a place where there’s no metal detector and no security guard to protect him. He’ll probably rule in your favor.

[Absaroka]

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