Can a Tennessee constable carry a firearm anywhere in the state?

Subject

Opinion No. 13-110, Constables Carrying Firearms, December 27, 2013

Plain-English summary

A district attorney general asked whether Tennessee constables could carry firearms anywhere in the state. The Attorney General identified two ways a constable could carry a handgun statewide under the law discussed in this 2013 opinion.

First, a constable could obtain a handgun-carry permit under Tenn. Code Ann. § 39-17-1351, provided the constable met the statute's requirements. The opinion treats the constable as an individual applicant, like other citizens. It also says constables do not qualify for the separate carry authority that § 39-17-1350 grants to its defined “law enforcement officers.”

Second, § 39-17-1315(a)(2) gave a narrow group of constables a route through a sheriff's written directive or permit. It applied to duly elected and sworn constables in counties within the statute's population band where constables retained the listed law enforcement powers. Each such constable had to complete the eight-hour annual firearm training program specified there. The opinion says a court would likely read “at all times” to allow these constables to carry a handgun outside their home county.

The opinion separately quotes Tenn. Code Ann. § 8-10-203: “[c]onstables must be range-qualified prior to being authorized to carry a firearm.” It does not analyze that sentence as an added condition for an individual carrying under an ordinary § 39-17-1351 permit.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What this means for you

For a constable assessing carry authority under this opinion, the route matters. The general permit route depends on the requirements of § 39-17-1351. The sheriff-directive route described here depends on the county and training conditions in § 39-17-1315(a)(2). Check the current statutes before relying on either route.

Common questions

Does a constable automatically qualify for the firearm rule for law enforcement officers?

No. The opinion concludes that a constable is outside the definition of “law enforcement officer” in Tenn. Code Ann. § 39-17-1350. It identifies separate ways a constable may carry a handgun.

Can a constable apply for the ordinary handgun-carry permit?

Yes. The opinion says a constable, like other citizens, may obtain a permit if the constable meets the requirements of § 39-17-1351, then carry a handgun within Tennessee under that permit.

Which constables could use the sheriff's written directive?

Under the statute quoted in the opinion, this route applied to duly elected and sworn constables in counties with a population of 11,100 to 11,200 under the 1970 or a subsequent federal census, where constables retained the listed law enforcement powers. It required a sheriff's directive or permit and the specified annual firearm training.

Did the opinion impose § 8-10-203 range qualification on ordinary permit holders?

It quotes § 8-10-203's range-qualification rule for constables and discusses it in connection with statutory firearm training. It does not separately say that a constable carrying as an individual under § 39-17-1351 must complete that qualification beyond the permit statute's own requirements.

Citations

Tenn. Code Ann. §§ 8-10-101 to -206 (constables); §§ 8-10-203, 39-17-1307, 39-17-1315(a)(2), 39-17-1350, 39-17-1351 (carry provisions discussed). Anderson v. State, 545 S.W.2d 951 (Tenn. Crim. App. 1976) (geographic scope discussed). Prior AG opinions cited include Op. 92-18 (Feb. 28, 1992), Op. 93-62 (Oct. 20, 1993), Op. 99-025 (Feb. 16, 1999), and Op. 99-038 (Feb. 24, 1999).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-110.pdf

Original opinion text

December 27, 2013

Opinion No. 13-110

Constables Carrying Firearms

QUESTION

May constables carry firearms anywhere in the State of Tennessee?

OPINION

Constables may only carry firearms as permitted by the law of Tennessee. Constables, like other citizens, may carry a handgun anywhere in the state upon obtaining a handgun-carry permit from the Tennessee Department of Safety pursuant to Tenn. Code Ann. § 39-17-1351. Additionally, constables from counties having the populations described in Tenn. Code Ann. § 39-17-1351(a)(2) may carry a handgun anywhere in the state upon written directive issued by the sheriff.

ANALYSIS

Tennessee law generally provides that a person commits a criminal offense who carries a firearm with the intent to go armed. Tenn. Code Ann. § 39-17-1307. There are numerous exceptions that constitute defenses to this criminal statute and authorize a person to carry a firearm. See, e.g., Tenn. Code Ann. §§ 39-17-1307, -1308, -1350 and -1351. A constable elected or appointed pursuant to Tenn. Code Ann. §§ 8-10-101 to -206 may lawfully carry a firearm anywhere in Tennessee as permitted by these statutes.

A constable is not considered a law-enforcement officer authorized to carry a firearm under Tenn. Code Ann. § 39-17-1350. This statute permits, except as otherwise provided, "any law enforcement officer" to "carry firearms at all times and in all places within Tennessee, on-duty or off-duty, regardless of the officer's regular duty hours or assignments." Tenn. Code Ann. § 39-17-1350(a). For purposes of Tenn. Code Ann. § 39-17-1350, "law enforcement officer" means "a person who is a full-time employee of the state in a position authorized by the laws of this state to carry a firearm and to make arrests for violations of some or all of the laws of this state, or a full-time police officer who has been certified by the peace officer standards and training commission, or a commissioned reserve duty sheriff as authorized in writing by the chief of police." Tenn. Code Ann. § 39-17-1350(d)(1), or certain department of correction employees or correctional officers, Tenn. Code Ann. § 39-17-1350(d)(2). Because a constable is not a "full-time employee of the state," a "full-time police officer," a "commissioned reserve deputy sheriff," a "commissioned reserve or auxiliary police officer," or one of the specified department of correction employees or correctional officers under Tenn. Code Ann. § 39-17-1350(d)(2), a constable is not a "law enforcement officer" within the meaning of Tenn. Code Ann. § 39-17-1350.

Certain persons also are authorized to carry handguns pursuant to a written directive. Tenn. Code Ann. § 39-17-1315. A written directive to carry a handgun may be issued by a law-enforcement agency to which an officer is attached. Tenn. Code Ann. § 39-17-1315(a)(1). This Office has previously opined that, because constables are not part of a law-enforcement agency, this subsection does not apply to them. Tenn. Att'y Gen. Op. 92-18 at 6 (Feb. 28, 1992). Subsection (a)(2) however contains a narrow, constable-specific exception, stating:

Any duly elected and sworn constable in any county having a population of not less than eleven thousand one hundred (11,100) nor more than eleven thousand two hundred (11,200), according to the 1970 federal census or any subsequent federal census, and being a county in which constables retain law enforcement powers and duties under the provisions of §§ 8-10-108, 40-6-210, 55-8-152, 57-5-202 and 57-9-101, are authorized to and may carry handguns at all times and may equip their vehicles with blue and red lights and sirens. The sheriff of such county shall issue a written directive or permit authorizing the constables to carry a handgun; provided, that each constable has completed the same eight-hour annual firearm training program as is required by this subsection (a).

Tenn. Code Ann. § 39-17-1315(a)(2). Thus, constables from counties falling within the population band described in this subsection may carry a handgun "at all times" if they obtain a written directive from the sheriff and meet statutory firearm-training requirements. A court is likely to interpret the "at all times" phraseology to allow these constables to carry a handgun outside their territorial (county-wide) jurisdictions. See Anderson v. State, 545 S.W.2d 951, 952 (Tenn. Crim. App 1976) ("Nothing in the statute suggests that the protection afforded policemen [from liability for carrying dangerous weapons] is limited by geography. The statute must be construed in favor of the appellant.").

Regarding firearm training, "[c]onstables must be range-qualified prior to being authorized to carry a firearm." Tenn. Code Ann. § 8-10-203. This statute regarding firearm training does not modify any of the requirements of Tenn. Code Ann. § 39-17-1315 as they apply to constables, much of which have since been replaced by the handgun-permitting process of Tenn. Code Ann. § 39-17-1351¹, but rather restates the requirement that constables be qualified on the firing range and allows the Tennessee Constables Association or the local law-enforcement authority to sponsor the qualification. Tenn. Att'y Gen. Op. 93-62 (Oct. 20, 1993); cf. Tenn. Att'y Gen. Op. 03-092 at 3 (July 28, 2003) ("Constables with law enforcement authority are authorized, therefore, to carry a firearm provided they satisfy other statutory requirements.").

¹ See Tenn. Att'y Gen. Op. 99-025 (Feb. 16, 1999) ("The sheriff's written directive and permit required for constables to carry a gun under former Tenn. Code Ann. § 39-17-1315(b), referred to in prior opinion of this Office as applicable to constables, has been deleted from statute and replaced by the handgun permitting process of Tenn. Code Ann. § 39-17-1351. Constables must apply to the Department of Safety for a handgun-carry permit pursuant to Tenn. Code Ann. § 39-17-1351." (footnote omitted)).

Tennessee's general handgun-carry permit requirements are codified at Tenn. Code Ann. § 39-17-1351. A permit holder is entitled "to carry any handgun or handguns that the permit holder legally owns or possesses." Id. § 39-17-1351(n)(1). A constable, like other citizens, may obtain a permit (provided that he or she meets the requirements of the permitting statute) and lawfully carry a handgun within Tennessee. See Tenn. Att'y Gen. Op. 99-038 (Feb. 24, 1999) ("As an individual, a constable, like other citizens, may obtain a handgun carry permit from the Department of Safety under Tenn. Code Ann. § 39-17-1351.").

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:

The Honorable James B. Dunn
District Attorney General
Fourth Judicial District
Sevier County Courthouse
125 Court Avenue, Suite 301E
Sevierville, TN 37862