Can a Tennessee county head of department who is not in law enforcement give their employee a written OK to carry a handgun on the job?

Subject

Opinion No. 14-56, County Employees Carrying Handguns while on Duty, May 19, 2014

Plain-English summary

Representative Jimmy Eldridge asked two questions: whether an executive supervisor of a non-law-enforcement county agency could issue a written directive authorizing an employee with a handgun-carry permit to carry while on duty, and (if no such directive was issued) whether the county would have Governmental Tort Liability Act immunity for claims tied to an employee carrying on duty when the county had no written policy prohibiting firearms and no posted notices.

The AG answered no to the first question and yes to the second.

On question 1, the written-directive authority in Tenn. Code Ann. § 39-17-1315(a)(1)(A) is structured to flow from law-enforcement agencies. The statute lists state and local law-enforcement officers, Tennessee Emergency Management Agency employees, certain Department of Correction personnel, and "[a]ny other officer or person authorized to carry handguns by this, or any other law of this state." The retention requirement in § 39-17-1315(a)(1)(B) ("the particular law enforcement agency that shall issue the directive") makes the law-enforcement framing explicit. A non-law-enforcement county agency does not fit. Prior Op. 00-009 (Jan. 19, 2000) and Op. 92-18 (Feb. 28, 1992) had said the same.

The opinion acknowledged narrow special-purpose exceptions: county magistrates appear in the (a)(1)(A)(i) list (added in 2003), but the issuing authority for their directive is ambiguous and the statute's retention language points to the sheriff. § 13-20-419(b) lets officers of a public-housing security force receive written directives. § 49-6-815 lets a director of schools, with the principal, authorize firearm carry on school property by current or former law-enforcement officers. § 39-17-1306(c) and Op. 00-009 contemplate a judge authorizing court officers to carry as part of inherent judicial authority. None of those reach a regular county-agency supervisor.

A county employee who is not a law-enforcement officer may still apply for and hold a Tennessee handgun-carry permit under § 39-17-1351 and carry handguns the employee legally owns under § 39-17-1351(n)(1). But the additional authority of an § 1315(a)(1)(A) written directive (which allows law-enforcement officers to carry at all times regardless of duty hours or assignments) does not extend to them.

On question 2, the GTLA framework controls. Local governments are immune from suit (§ 29-20-201(a)) except where the General Assembly has removed immunity. § 29-20-205 removes immunity for negligence of employees within scope of employment, but § 29-20-205(1) keeps immunity for injuries arising from the "exercise or performance or the failure to exercise or perform a discretionary function." Tennessee uses the planning-vs-operational distinction (Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992)) to identify discretionary acts. A county's decision not to have a written personnel policy prohibiting firearm carry on duty is policymaking. A county's decision not to post no-firearms notices is also policymaking. Both fall within the discretionary-function exception, so the county is immune for injuries claimed to have arisen from those omissions.

The opinion expressly preserved a separate question: a county might still be liable under § 29-20-205 for the negligent discharge of a firearm by a county employee within scope of employment. That issue depends on the circumstances and was not within the scope of the request.

Currency note

This opinion was issued in 2014. 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.

Common questions

What is a § 39-17-1315(a) "written directive"?

It is a written authorization issued by the executive supervisor of an employing organization (typically a law-enforcement agency) that lets an officer carry a handgun at all times, regardless of regular duty hours or assignments. It is layered on top of the regular handgun-carry-permit system.

Why is it limited to law enforcement?

The statute's retention requirement at (a)(1)(B) says a copy of the written directive must be retained by "the particular law enforcement agency that shall issue the directive." That language presupposes a law-enforcement issuer. Prior AG opinions consistently read § 1315(a) as a law-enforcement provision.

Can a non-law-enforcement county employee carry a handgun on the job at all?

Yes, if the employee has a Tennessee handgun-carry permit under § 39-17-1351 and meets all other carry requirements. What the employee cannot get is the additional § 1315(a) written directive's all-times-regardless-of-assignment authority. And the carry must comply with all generally applicable carry-prohibition statutes (such as those covering schools, courthouses, federal property, etc.).

Can a county employer prohibit on-duty carry?

Yes. As a workplace policy matter, the county is generally free to prohibit firearms in its workplaces and on its premises. That is a separate question from whether the employee individually holds a permit. The opinion does not address how the county would enforce such a policy.

What does the GTLA's "discretionary function" exception cover?

Bowers v. City of Chattanooga divides government conduct into "planning or policymaking" decisions (discretionary, immune) and "operational" decisions (not immune). Adopting or not adopting a written firearms policy is a planning/policymaking decision. Carrying out specific employment actions can be operational and reachable under the GTLA.

Is the county liable if a county employee shoots someone on duty?

That depends on facts not before the AG. The opinion says only that the county is immune for the policy-level decision not to have a written firearms-prohibition policy or to post notices. Liability for an individual employee's negligent discharge in scope of employment is a separate, fact-intensive question under § 29-20-205.

Are there other narrow exceptions to the law-enforcement-only framing?

Yes. The opinion catalogs them: county magistrates appear in § 1315(a)(1)(A)(i), public-housing security officers under § 13-20-419(b), school personnel authorizations limited to current or former law-enforcement officers under § 49-6-815, and judges authorizing court officers under § 39-17-1306(c) and Op. 00-009. These do not enable a non-law-enforcement county supervisor to authorize a regular employee.

Background and statutory framework

Tennessee's handgun-carry framework has two main components: a permitting regime in § 39-17-1351 for individuals who meet the statutory requirements, and special authorizations for law-enforcement and similar personnel under § 39-17-1315 that allow carry without the normal restrictions tied to permit conditions. The latter framework is specifically designed for law-enforcement use, with the "written directive" mechanism providing the formal authorization document and chain of accountability inside an agency.

The GTLA (Title 29, Chapter 20) governs whether local governments can be sued for the actions of their employees. § 29-20-201(a) is the general immunity. § 29-20-205 is the general removal for employee negligence. The § 29-20-205(1) discretionary-function exception preserves immunity for planning and policymaking choices. Bowers v. City of Chattanooga is the Tennessee Supreme Court's canonical articulation of how to distinguish planning from operational acts.

Citations

• Tenn. Code Ann. § 39-17-1315(a)(1)(A) (written directive authority; law-enforcement framing)
• Tenn. Code Ann. § 39-17-1315(a)(1)(B) (law-enforcement agency retention of written directive)
• Tenn. Code Ann. § 39-17-1351 (general handgun-carry-permit statute)
• Tenn. Code Ann. § 39-17-1351(n)(1) (permit holder may carry handguns legally owned or possessed)
• Tenn. Code Ann. § 39-17-1306(c) (judicial authorization to carry)
• Tenn. Code Ann. § 13-20-419(b) (public-housing security force written directives)
• Tenn. Code Ann. § 49-6-815 (school director authorization, limited to current/former law enforcement)
• Tenn. Code Ann. § 29-20-201(a) (general governmental immunity)
• Tenn. Code Ann. § 29-20-205 (removal of immunity for employee negligence)
• Tenn. Code Ann. § 29-20-205(1) (discretionary-function exception)
• Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992) (Tennessee Supreme Court; planning vs. operational distinction)
• Tenn. Att'y Gen. Op. 00-009 (Jan. 19, 2000) (§ 1315(a) is law-enforcement directive; judges may authorize court officers)
• Tenn. Att'y Gen. Op. 92-18 (Feb. 28, 1992) (§ 1315(a) is law-enforcement directive)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-056.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
May 19, 2014
Opinion No. 14-56
County Employees Carrying Handguns while on Duty

QUESTIONS

1. Excluding the county sheriff, does Tenn. Code Ann. § 39-17-1315(a), or any other statute, authorize a county official, specifically an executive supervisor of a county agency that is not a law-enforcement agency, to issue a written directive authorizing an employee who is a handgun-carry-permit holder to carry a handgun in the scope of the employee's official duties?

2. In the absence of a written directive issued pursuant to Tenn. Code Ann. § 39-17-1315(a), would a county have immunity under Tennessee's Governmental Tort Liability Act for a claim involving a county employee's carrying a handgun while on duty where the county has no written personnel policy prohibiting employees from carrying a firearm while on duty and has not posted notices prohibiting firearms on county property?

OPINIONS

1. No. There is no statutory authority providing for an executive supervisor of a county agency that is not a law-enforcement agency to issue a written directive authorizing an employee to carry a handgun in the scope of the employee's official duties.

2. A county would have immunity under the Governmental Tort Liability Act for injuries alleged to have arisen out of the county's failure to have a written personnel policy prohibiting employees from carrying a firearm while on duty or to post notices prohibiting firearms on county property.

ANALYSIS

1. Under Tenn. Code Ann. § 39-17-1315(a)(1)(A)(i) state and local law-enforcement officers who meet certain training requirements "may carry handguns at all times pursuant to a written directive by the executive supervisor of the organization to which the person is or was attached or employed, regardless of the person's regular duty hours or assignments." The statute makes similar provision for employees of the Tennessee Emergency Management Agency, certain representatives or employees of the Tennessee Department of Correction, and "[a]ny other officer or person authorized to carry handguns by this, or any other law of this state." Id. § 39-17-1315(a)(1)(A)(ii)-(iv). See, e.g., Tenn. Code Ann. § 13-20-419(b) (providing that officers of public-housing security force may receive a written directive to carry handguns under § 39-17-1315). But with the possible exception of subdivision (a)(1)(A)(i)'s inclusion of county magistrates, nothing in Tenn. Code Ann. § 1315(a) or any other statute empowers a county agency that is not a law-enforcement agency to issue a written directive authorizing its employees to carry handguns at all times. Indeed, the statute expressly contemplates that these written directives will be issued only by law-enforcement agencies. See Tenn. Code Ann. § 39-17-1315(a)(1)(B) (requiring that a copy of the written directive be retained by "the particular law enforcement agency that shall issue the directive"). See also Tenn. Att'y Gen. Op. 00-009 (Jan. 19, 2000) (§ 39-17-1315(a) "contemplates issuance of a written directive by a law enforcement agency to which an officer is attached") (citing Tenn. Att'y Gen. Op. 92-18 (Feb. 28, 1992)).

County magistrates are included in the list of those who may be authorized to carry handguns under § 1315(a)(1)(A)(i), see 2003 Tenn. Pub. Acts, ch. 144, but it is unclear under the statute whether such a written directive would be issued by the county governing body or by the county sheriff. The language cited above from § 1315(a)(1)(B), however, suggests the latter. Under Tenn. Code Ann. § 49-6-815, a director of schools, in conjunction with a school principal, may authorize persons to carry or possess firearms on school property, but such persons must be current or former law-enforcement officers. Id. § 49-6-815(a)(3). And in Tenn. Att'y Gen. Op. 00-009 (Jan. 19, 2000), this Office opined that a judge could authorize a court officer to carry arms as part of the judge's inherent authority, citing Tenn. Code Ann. § 39-17-1306(c).

Tennessee's general handgun-carry-permit requirements are codified at Tenn. Code Ann. § 39-17-1351, and a permit holder is entitled "to carry any handgun or handguns that the permit holder legally owns or possesses." Tenn. Code Ann. § 39-17-1351(n)(1). Provided that he or she meets the requirements of the permitting statute, a county employee who is not a law-enforcement officer may obtain a permit and lawfully carry a handgun within Tennessee. But the authority granted by Tenn. Code Ann. § 39-17-1315(a)(1)(A) does not extend to such a person.

2. Under the Tennessee Governmental Tort Liability Act (GTLA), local governmental entities are immune from suit for injuries resulting from their activities, except where the General Assembly has expressly removed such immunity. Tenn. Code Ann. § 29-20-201(a). "Immunity from suit of all governmental entities is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment," Tenn. Code Ann. § 29-20-205, except where the injury arises out of, among other things, the "exercise or performance or the failure to exercise or perform a discretionary function," id. § 29-20-205(1).

Although the term "discretionary function" is not defined in the GTLA, the Tennessee Supreme Court has adopted a test to determine whether an employee was acting within the scope of discretionary-function immunity. See Bowers v. City of Chattanooga, 826 S.W.2d 427, 430 (Tenn. 1992). Under this test, decisions that rise to the level of planning or policymaking are considered discretionary acts that do not give rise to tort liability; decisions that are merely operational are not considered discretionary acts and may give rise to liability. Id. at 430. A county's decision not to have a written personnel policy prohibiting employees from carrying a firearm while on duty would no doubt constitute policymaking; a county's decision not to post notices prohibiting firearms on county property would likely also amount to policymaking. Accordingly, under Tenn. Code Ann. § 29-20-205(1), a county's immunity under the GTLA would not be removed for injuries alleged to have arisen out of the county's failure to have such a personnel policy or to post such notices. Whether the county could still be liable under § 29-20-205 for injuries alleged to have arisen out of a county employee's negligent discharge of a firearm within the scope of his employment, however, would depend entirely upon the circumstances and is thus a question that is beyond the scope of this opinion.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JOHN H. BLEDSOE
Senior Counsel

ELIZABETH TAYLOR
Assistant Attorney General

Requested by:
The Honorable Jimmy A. Eldridge
State Representative
208 War Memorial Building
Nashville, Tennessee 37243