Lawsuit filed claiming “Restaurant Carry” is a public nusiance

→ Posted on Jul 01, 2009 - 09:56 AM

Nashville restaurant owners and 9 others who asked to be parties but who asked to be included anonymously because of fear of retaliation filed suit on July 1, 2009, in Davidson County Chancery Court (Judge Bonnyman).  They have asked the court to injoin the effectiveness of HB0962, which creates an exception for handgun permit holders to the general law which prohibits firearms in restaurants and other places that serve alcoholic beverages and/or beer.  Oddly enough, the lawsuit does not claim that the companion law which allows on duty and off duty law enforcement officers to do likewise is also unconstitutional.

Complaint as filed - a PDF file

or a copy of the complaint is available in a TIF format on the TFA Forum at this link:

http://www.tfaonline.org/forum/viewtopic.php?f=1&t=2327&p=8410#p8410

So what are the theories.  Well, to start with the complaint is not written as a typically complaint under Tennessee law containing factual allegations and a prayer for relief.  It is written more as a brief of law for the news media.  It contains many references to news reports, internet posts, “wives” tales and folklore.  It is well written but not well plead under the rules of pleading.

It claims that the legislature was mislead by representations from the NRA, TFA and others about the number of states which allow handgun permit holders to carry in restaurants where alcoholic beverages are served.  Indeed, in a footnote to the very first paragraph, the plaintiffs adopt the mischaracterization of the law such as often used by Chief Serpas and Gov Bredesen as a “guns in bars” law.  It claims that Tennessee is now the only state which expressly authorizes “guns in bars.”

The complaint claims that the change in the law by the Legislature

- creates a public nuisance

- effects a due process violation by somehow “taking property” that exposes “bar owners” (really, is that what they are?) to firearms “with no effective deterrent”.

- effects a due process violation by enacting a change in the law that is “arbitrary and capricious”

- violates Tennessee’s Occupational Safety and Health Act

- violates various provisions of the Tennessee Constitution

- violates federal civil rights laws (42 USC 1983) as a “state created danger and state created vigilantism”

- violates a dues process and “fundamental right” to be “free from gun violence in ‘sensitive places.’”

The plaintiff urges the Attorney General, Robert Cooper, to refuse to defend the case and to instead notify the General Assembly that it is essentially ‘own its own.’

Its quite sad the lengths to which these individuals and interests have gone. 

Complaint as filed

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