Nashville Lawyer Blog

The United States Supreme Court ruled today in a unanimous decision that police must obtain a search warrant before using a GPS device to track a criminal suspect.Law enforcement have begun relying on such high tech devices to track the movements of those suspected of criminal activity.

The case that was before the United States Supreme Court involved a GPS device that had been installed by police to track a nightclub owner. The GPS device helped link him to a suburban house used to stash money and drugs. He was sentenced to life in prison before an appeals court overturned the conviction. The United States Supreme Court affirmed the decision to overturn the conviction.

The Court held that the government's installation of a GPS device, and its use to monitor the vehicle's movements, constituted a search, which required law enforcement to first obtain a search warrant. In the case before the Court, law enforcement actions by not first obtaining a search warrant violated the U.S. Constitution's Fourth Amendment's protection against unreasonable searches and seizure.

Darren T. Ring, a 35-year-old resident of the City of Waverly, has had a federal civil rights lawsuit filed on his behalf in response to an alleged instance of police brutality, which I reported on in the July 2011 article "Police Beating Caught on Tape." Ring is represented by attorney David Raybin, a distinguished member of the Nashville law firm Hollins, Raybin and Weissman, who has filed suit against Humphreys County, the City of Waverly, Humphreys County Sheriff Chris Davis, Humphreys County deputies Timothy Hedge, James P. McCord, and James B. Lee, as well as Waverly police officers Joseph Parnell and Kinta Bell. Moreover, Rayin alleges that on January 23, 2011, the actions of Sheriff Davis, his deputies and the Waverly police "amounted to excessive force and were unlawful, shocking to the conscience and unconstitutional."

The complaint spans a stunning 44 pages, including a full transcript of the audio from a police dash camera, in addition to the camera's video. In the video, four officers are seen repetitively punching and kicking Ring, as he lay half naked and restrained on the ground, striking him with police batons, and even shocking him with a Taser. Although, Ring's ribs were fractured, one of his lungs punctured, and his body covered with bruises and other signs of attack, medical care was delayed until the following morning. It is further alleged that the assault continued after Ring was incarcerated with Davis pushing Ring's head into the cell wall, in addition to another deputy using a Taser on Ring in his cell while he was cuffed and shackled on the floor of his jail cell.

The suit further seeks punitive damages against the officers involved, as well as "those damages to which Ring may appear to be entitled to by proof submitted in the case for his physical and mental pain and suffering both past and future, loss of enjoyment of life, and the violation of his rights guaranteed to him" by the Constitution. As of September 2011, deputies Hedge, McCord and Lee have been fired, in addition to one of the Waverly Police officers involved resigning. County Mayor Jessie Wallace has since stated the firings were due to 20 percent of the county's officers being paid at home while the county was accumulating sizeable overtime. Although the sheriff has publicly claimed the actions taken were consistent with the departments training, it will be up to a jury to decide if the training is in fact consistent with the Constitution.

Sources
Federal lawsuit filed in videotaped deputies beating

Lawsuit filed on behalf of beaten, tased Humphreys Co. man

Humphreys man files suit, says sheriff, deputies beat him

TN lawsuit accuses Humphreys County officers of second beating

Darren T. Ring vs. Humphreys County Tennessee; City of Waverly, Tennessee; Sheriff Chris Davis; Deputy Timothy Hedge; Deputy James P. McCord; Deputy James B. Lee; Deputy Joseph B. Lee; Officer Joseph Parnell; Officer Kinta Bell

Posted By: Eston Vance Whiteside

Some thirty years ago, Tennessee lawmakers first introduced laws now found in Tennessee Code Annotated 36-3-601 et seq. to protect citizens from being battered, abused, stalked, or otherwise harassed by spouses, former lovers, and even family members. The need for such laws is clear, but as with any good law there are those that will abuse the system.

It is not uncommon in Nashville for persons to attempt to manipulate the system by seeking and obtaining an order of protection against a spouse to gain an advantage in upcoming divorce proceedings. At other times, persons may rush to the courthouse first to seek an order of protection against an ex-boyfriend/girlfriend so as to beat the other party to the punch in an attempt to protect themselves against having one issued against them or even worse to protect themselves against criminal charges.

The scenarios described in the preceding paragraph are unfortunately not uncommon in Davidson County courts. Persons that have an order of protection issued against them (Respondents) are all too often viewed as suspicious at best before they ever get a chance to tell their side of the story as the Judge will have reviewed the written petition and heard the petitioner's version of the events before they ever get to speak. This is why it is so important that the respondent has the most capable attorney that is experienced with these types of cases and prepared to clear the cloud of condemnation.

If an order of protection is sustained after a hearing then the order will be a permanent record that can never be expunged. The order will remain in place for one year and can be extended. The order immediately prohibits the Respondent from possessing a firearm. One must consider that if a person is evil enough to petition for an order of protection against you without just cause one time then such person could very well decide to make a false allegation again within the next year, which would immediately send you to jail. It is imperative to fight orders of protection at the first court date.

The only way for a person to protect themselves is to go to court prepared to defend the order of protection. If after a hearing the judge dismisses the order of protection then the incident is eligible for expungement. If you have questions regarding an order of protection contact Vince Wyatt or David Raybin at 615-256-6666.

When representing a client that received medicare benefits while hospitalized for an injury that was caused by another person, it is always very important before reaching a financial settlement on behalf of such client to know what claims that Medicare may assert down the road.

At https://mymedicare.gov once a client establishes an online account, one can easily look up past medicare payments to determine what if any claims could be assert against the clients personal injury settlement or judgment.

Many people find themselves with criminal charges after a routine traffic stop. If an officer initiates a traffic stop, such officer will likely investigate for criminal activity.

If you find yourself arrested after a traffic stop, the first question your criminal attorney should be asking is, why did you get pulled over. If there is no legitimate reason for the stop, there may be no basis to prosecute you.

In a recent case in Tennessee that was decided in Federal Court, United States v. Gross, the court held that a slow lane change where the person's vehicle straddled two lanes for a few seconds while changing from one lane to another without further erratic or improper driving does not give rise to a legitimate stop.

They will generally knock and say "property management" or "U.S Mail" ", but when you open the door you may find that it is really 2 or 3 police officers trying to talk their way into your living room. A routine practice of law enforcement in Nashville, Tennessee this practice is called the "knock and talk" technique.

Officers use this technique where they lack the probable cause necessary to obtain a warrant to search a residence, but when they have some suspicion that a person may possess illegal drugs or weapons in their home.

Once the resident opens the door, the police may try to pressure the resident into consenting to a search of their home or could go as far as to claim to smell an odor of an illegal drug as a basis to get a search warrant.

"Knock and talks" have been upheld as a lawful police technique in many cases; however, in State v. Blackwell, the Tennessee Court of Criminal Appeals found such technique to be unlawful where the police ignored "no trespassing" signs at the entrance to the property and continued to the person's front door to attempt a "knock and talk."

If someone knocks at your door, you don't have to answer it. If you do and you find yourself charged with a criminal offense, contact a criminal defense attorney that understands your rights.

Inmates that receive poor medical care for Diabetes while incarcerated have protections under State and Federal law. Inmates may bring a claim under 42 U.S.C. § 1983 if they can establish that their constitutional rights were violated by guards or medical staff. The most common constitutional amendment implicated by inmates with diabetes is the Eighth Amendment, which prohibits cruel and unusual punishment including inadequate medical care. Inmates with diabetes may also bring claims against state and municipal prisons and jails under Title II of the Americans with Disabilities Act (ADA). Lastly, in prisons and jails that receive federal funding, inmates with diabetes may bring claims under Section 504 of the Rehabilitation Act (504).

If you or a loved one of yours has diabetes and received improper medical care while detatined in a Tennessee county, state, or federal prison, you should contact an attorney to protect your legal rights. David Raybin or Vince Wyatt may be reached at 615.256.6666

Our office has seen a recent spike in cases where individuals have mistakenly carried firearms into airport security. It is surprisingly common for us to see cases where a client carries a self-defense item like brass knuckles, a knife, or a collapsible baton in their travel bags or hurriedly packs a rarely used bag where such item has been left in a little used compartment, but the recent cases we have seen show that someone that is used to carrying their firearm with them when they travel for business can be just as absent minded. For this reason, it is very important to always carefully check your bag, especially rarely used side compartments, before you go to the airport.

According to a recent blog by the Transportation Security Administration, from October 14 to October 20, 2011 TSA found 22 loaded firearms in carry-on baggage and 1 on a passenger's person.

Just because airport security finds a prohibited item on an individual, bad intentions are not always assumed. Law enforcement officers try to determine the person's intentitions, but in most cases will issue a criminal citation or seek an arrest warrant and leave the final decision up to the local prosecutor. If charged, it is important to hire a criminal defense attorney that can persuade the prosecutor to understand that the actions were unintentional so as to ensure that such charge does not lead to a permanent criminal conviction.

You can travel with your firearms in checked baggage, but they must first be declared to the airline. Don't hesitate to contact Vince Wyatt or David Raybin with any questions related to a charge of an unlawful weapon at the aiport at 615.256.6666.

Due to a recent concern, healthcare organizations have begun a new series of research and inquiries driven by the legal liability fears attached to electronic health records (EHRs). An EHR carries the possibility of being admissible in court due to its legal representation nature by storing the medical condition and treatment of any given person, at any given time. Furthermore, EHRs revolutionize cluttered filing rooms by retaining all the patient information, in addition to changing how medical professionals document patient meetings and to what extent. However, some fear the records can be too revealing.

The Health Insurance Portability and Accountability Act: privacy and security rules, requires all handlers of electronic healthcare data to keep an audit log of access to any personally identifiable information. Consequently, healthcare organizations have used the records to catch unauthorized employees looking at patient records, and therefore occasionally causing the corporations themselves to be liable. While the courts find metadata and the EHR system significant and ascertainable, some members of the general public worry that items will be missed, due to the well know rushed and hectic workings of a hospital, causing the records to be incomplete. Likewise, others claim that the malpractice risks will increase in response to the "artificially short deadlines," for implementation, could tempt vendors to cut corners on developing projects and rushing employees through training. These factors when combined could inadvertently raise the risk of malpractice lawsuits against physicians and pressure liability insurers to raise their premiums.

However, others fully support the new system. Children's Hospital has become the final health care system in the Milwaukee area to make the switch from paper to electronic health records. They expect to take the new system live within the later half of next year or early 2013. Yet, the final piece to tilt the scale in favor of EHRs was the incentive on the part of Medicare and Medicaid for those hospitals and physician offices that covert to EHRs. This new system, although possibly a breeding ground for lawsuits, also has the potential to force health systems to analyze and restructure the way they provide care. The NorthCrest Medical Center in Tennessee acting as an example of the latter. NorthCrest has reached the milestone of a 2009 law that provides Medicaid incentives to hospitals and physician offices that demonstrate "meaningful use" of an EHR. NorthCrest demonstrated "meaningful use" of the new technology designed to improve patient safety and decrease the overall cost of health care. Despite the seemingly high risk of malpractice claims, many healthcare organizations seem willing to adopt the new procedure in the never-ending attempt to provide higher quality care at a lower cost. Nevertheless, this is by no means a short term goal, the results of projects involving EHRs will likely not be apparent for years to come.

Sources:
Tennessee Hospital First In Nation To Receive Medicaid Incentives For 'Meaningful Use' Of An Emergency Department Electronic Health Record

Electronic Records May Increase Malpractice Lawsuit Risk

Big Data in health research IT requires new definition of "research," says federal advisory committee

EHR Privacy Rule Threatens Research, Federal Advisers Say

Legislation Introduced To Boost Use Of Electronic Medical Records

Children's Hospital begins conversion to electronic records

When EHRs Meet Malpractice Suits: New Concerns

Posted By: Eston Vance Whiteside

What used to come from street dealers and drug lords now comes from a pharmacy safe. Like the rest of the U.S., Tennessee has seen a rapid increase in the number of prescription narcotics dispensed under the control of doctors that are making their way into the hands of anyone willing. Unscrupulous doctors are writing prescriptions for pills such as Oxycodone, Xanax, and Valium across the Southeast at an unimaginable rate, from establishments known as pill mills. Pill mills are usually pain clinics that take cash only and are extremely liberal and generous with the amount of medication they give out. Likewise, because they are in a bottle with their name on it there's nothing the police can do.

However, beginning January 1, 2012, Tennessee will begin to fight to mounting illegal prescription industry through the formal regulation of pain clinics. On October 1, Tennessee recognized the emergency basis of a new prescription law that will be implemented by a new set of rules. The new regulation will require all pain clinics in Tennessee to go through a two-year certification process by the Health Department, forbid dealings in cash and establish stiff civil penalties for medical professionals who work at illegal pain clinics. This emergency basis was born out of the National Office of Drug Control recently naming prescription drug abuse as the most rapid expanding and out-of-control drug problem in the U.S. Additionally, as far as the rankings for the number of dispensed prescription medications goes, Tennessee is second in the nation.

In addition, the Tennessee Bureau of Investigation recently created the Drug Diversion Task Force. Although, the task force has no full-time staff and no budget, they spend their spare time promoting awareness of prescription-drug abuse and assisting overworked local agencies. The task force focuses on all aspects of the drug problem from prescription forgeries, negligent doctors, deaths resulting from drug overdoses, pharmacy robberies and interstate drug pipelines. Between the Drug Diversion Task Force, the Metropolitan Drug Commission, and the recent and future legislative action, the illegal prescription industry will eventually crumble. This is an epidemic affecting our communities and our families and must be ended promptly.

Sources:
Law Enforcement battling to cut off pain drug pipeline

Tennessee declares war on pill mills

A year of pills: Drugs leave a trail of damage, crime

Summary findings from the News Sentinel investigation into the pill trade

Tennessee drug task force waging lonely war on Rx diversion

Posted By Eston Vance Whiteside

Congress has begun weighing an expansive auto safety bill that would require all new cars to be equipped with Event Data Recorders or "black boxes" to record crash data, similar to those used in airplanes. These boxes could provide investigators with incriminating details about a person's driving behavior seconds before the crash. The boxes will analyze factors such as: the speed at which the car was traveling, whether the brake or the accelerator was being pressed, airbag deployment, whether the turn signal was being used, the force of impact, the direction the car was being steered and if the passengers were wearing seatbelts. While the data is always being recorded, it is only saved to the device's memory in the event of airbag deployment.

Although both the auto industry and safety groups agree with the idea of making black boxes mandatory, there is disagreement over the extent of the data the devices should collect, as well as the degree they should be able to survive serious accidents. Safety groups argue that the boxes should be capable of surviving the worst of accidents, but this characteristic could prove to be extremely costly. Black boxes designed for airplanes can cost between $5,000 and $25,000, which auto company representatives contend is unreasonaby expensive. In addition, safety advocates also argue the boxes should record information 60 seconds before a crash and 15 seconds after the crash, another feature the auto companies claim would be unreasonably expensive.

Likewise, many motorists see the boxes as an invasion of their privacy and that they should have the discretion in deciding how and when to share such information with a third party. The boxes can't be turned off and anyone with a court order can obtain the information. Furthermore, many cars already have these boxes installed, usually beneath the center console or under the drivers seat. To find out if your car has an Event Data Recorder installed in it click here. However, from a legal prospective the data obtained from an Event Data Recorder must be weighed the same as evidence obtained through a search warrant or wiretap. The balance therefore, is between the competing interests of a car owner's right to privacy versus a third party's interest in knowing specific information about a persons operation of a motor vehicle.

Sources:
Automotive 'black boxes' raise privacy issues

Groups spar over car black boxes as Congress mulls auto safety bill

Black Box of Secrets

Automotive Black Boxes, Minus the Gray Area

New Federal Rules To Require Black Boxes to Record Driver Activity in Every Car

Posted By: Eston Whiteside

Today, technology is an essential part of how lawyers and business professionals operate. Lawyers are familiar with discovery and the requirements set forth by the courts for complying with discovery demands. Likewise, they also understand that they are only required to provide the documents and data set out in the discovery demand. However, if you are providing electronic versions of your documents you may in fact be unintentionally supplying more information than you realize.

Similarly, it is common practice for lawyers to circulate proposed documents around the office via e-mail, as people add comments or suggestions. Eventually, the comments are removed from the final document and expected to remain within the privacy of the office. This is not so, however, as the right tools can be used to reveal document revisions and comments. This is due to the extensiveness of metadata that is integrated into a digital document or other computer generated files.

Metadata is "data about data" that is not evident when viewing a digital file. For example, standard data would include the number of words typed or the date it was last edited. Metadata on the other hand, can reveal significantly more information about a document, including but not limited to:

• who worked on the document


• the name of the company / organization that created or worked on it


• the name of the network server or hard disk where the document was saved


• prior versions of the document


• recent revisions/ highlighted changes ("Track Changes" or "Fast Saves")


• hidden text or cells


• personalized views


• hyperlinks


• graphics


• non-visible portions of embedded OLE objects


• comments inserted in the document during the drafting and editing.

The purpose of metadata is to add functionality to the editing, viewing, filing, and retrieving capabilities of a program. In addition, metadata is used to substantiate core authenticity functions, which case law has mandated is necessary for outputs to be admitted into a legal proceeding. Unfortunately, it is possible for some or even all of this information to be passed on to an inappropriate party (opposing counsel), thus creating adverse consequences for you and your client. Furthermore, lawyers have a duty to protect the information and evidence they have related to their clients' cases. Lawyers who attempt to conceal or erase metadata must exercise extreme caution, as the destruction/concealment of evidence is an ethical violation. Likewise, liability exists for lawyers who mine (to look for changes or discover information the other side intended to keep confidential) electronic documents, especially when the electronic document is not a discovery item. Therefore, as part of a lawyer's required competence, it is essential for them to understand the facts and effects of metadata.

Consequently, it is likely the courts will be addressing the various issues surrounding metadata, such as its definition, the mining of it, and how such data can be deconstructed. This will result from the implementation of new digital methods, such as federal and state tax e-filings, electronic medical records (EMRs), and other general sharing of digital data. Currently, there are steps that can be taken to reduce the transmission of damaging metadata, including:

• Disabling the "Track Changes" and "Fast Saves" functions in Microsoft Word


• Use IT tools such as Payne Metadata Assistant, Workshare, iScrub and others, to strip out the metadata from Microsoft Word, Excel, PowerPoint, PDF documents and digital photos.


• Never use "Track Changes," for it is better to use other document comparison technologies that show text changes in PDF or RTF formats. (Note: PDF documents carry their own metadata, including Keywords, Author, Title, and Subject.)


• Convert soft copy files into Adobe PDF documents because these don't contain metadata


• Strip out metadata from all incoming e-mailed Microsoft Word, Excel PowerPoint and PDF documents, as well as digital photos, before opening them, so that you do not unfairly learn anything that you ought not to learn.

While it remains to be seen how this emerging issue will develop in response to future legal opinions and analysis, the best approach for the time being is for lawyers to develop sound internal practices to keep metadata from "escaping" in the first place. Such practices will not only uphold the professional and ethical reputation of lawyers, but will also ensure fairness and integrity in the practice of law.

Sources:
Metadata, Law, and the Real World

Metadata and Issues Relating to the Form of Production

Find and remove metadata (hidden information) in your legal documents

Metadata - What Is It and What Are My Ethical Duties?

The DNA of a document - Legal ramifications of 'Metadata' to be discussed at April seminar

Critical Computer Skills Every Attorney Should Know - Understanding Metadata

Posted By: Eston Vance Whiteside

Recent court decisions emphasize a growing trend in the acceptance of the notion that battered partners can use force to defend themselves and even kill their abusers. This domestic violence concept, referred to as "battered woman syndrome," is based on the abusive and occasionally life threatening situations in which partners can find themselves. Such violent situations cause them to firmly believe that killing their partner is the only way to ensure their survival. This concept has been controversial however, as neither the DSM nor the ICD medical classification guides include battered woman's syndrome as a condition severe enough to excuse alleged offenders.

The latest judicial decision evidencing such a broad understanding of domestic violence was the Tennessee Board of Probation and Parole's decision to release Gaile Owens, 58. Owens received the death penalty for being an accessory to the first-degree murder of her husband, Ron Owens, in 1984. Owens contracted with a man named Sidney Porterfield to kill her husband while she and her two sons were away. Porterfield beat Ron Owens to death with a tire iron in the couple's home, and also received the death penalty. However, testimony of sexual assaults and physical abuse suffered by Gaile at the hands of her husband Ron led Tennessee Governor, Phil Bredesen, to believe Gaile could have been suffering from "battered woman syndrome." Therefore, Bredesen abandoned Gaile's sentence of death by lethal injection and arranged for her to be released on the condition she would regularly report to a parole officer in Nashville.

While the courts were originally hostile to this "defense," battered woman syndrome (BWS) has now gained widespread acceptance not only as a mitigating circumstance, but even as a complete defense in some circumstances. Christopher Slobogin, a law and psychiatry professor at Vanderbilt University, gave some explanations for this change in judicial opinion. One element of BWS is "learned helplessness," where the victim of domestic abuse believe they are powerless and don't try to remove themselves from abusive and dangerous relationships. In addition, the number of social services, such as crisis hotlines and domestic violence shelters, has grown rapidly over the last 20 years. This increase in support coupled with the learned helplessness characteristic of BWS has persuaded courts to accede BWS as a "legitimate source of mitigation of punishment."

Although BWS is not a legal defense, it can be used as a method of defending a woman accused of a crime. Likewise, BWS may legally constitute self-defense, provocation, insanity (according to the M'Naghten Rules), and diminished capacity. BWS helps a jury understand the woman's motive for murdering her abuser, which from her perspective was self-defense. David Raybin, a Nashville attorney with Hollins, Raybin, and Weissman, discussed this tactic in one of his recent articles, stating that BWS works and can be used to support duress not only in homicide cases, but in any case where the woman claims she committed a criminal act because she was forced to do so by her boyfriend/spouse. Furthermore, since the courts have found battered woman have a self-defense right when killing in a non-beating situation, many have become hopeful that the steps being adopted by the courts will help end violence against women once and for all.

Sources:
Court attitudes shift to accept use of battered woman defense

Battered Woman's Syndrome: Trial Tactics

Tennessee woman released after 25 years on death row

Posted By: Eston Vance Whiteside

If someone finds themself charged with felony drug possession in Nashville, Tennessee, chances are before his or her case ever goes to a jury trial that he or she will face amended charges with the enhancing language relating to the drug free school zone.

Years ago, Tennessee enacted the Drug Free School Zone laws aimed at enhancing the punishment for those that sell drugs near minors. No one can challenge the intent of the law ; however, there is nothing that prevents the application of such laws against virtually any criminal defendant in a city such as Nashville. The enhanced penalties increase the sentencing range by one classication, which can basically double the sentencing range and increased the applicable fines. The penalties also require mandatory jail time when charges might have otherwise allowed for the sentence to be served on probation.

Prosecutors can add the enhanced penalties when there is proof that the defendant's criminal act was within 1000 feet of a a public or private elementary school, middle school, high school; or public library, recreational center, park or child care. As one can imagine, in Nashville and other cities this 1000 feet boundary line can encompass almost an entire urban area. There is no requirement that the drug acivity occur during school hours. Many cases stem from instances where individuals are simply driving down a major street. One might wonder if this was really the intent of the legislature, but regardless of that no one can question that the laws raise the stakes on almost every felony drug case in Nashville.

If you are charged with a felony drug possession charge, you should contact a criminal defense attorney. Vince Wyatt or David Raybin may be reach at 615-256-6666.

Second Amendment advocates have been "up in arms" over a recent case that has resulted in a conflict between the constitutional supremacy of the pardon and the Tennessee lawmakers responsible for statutorily restricting the rights of felons. The case involves David Scott Blackwell, a Franklin man who received a felony drug possession in 1989 when he sold cocaine to an undercover police officer while living in Atlanta. As a result of his arrest, Blackwell would go on to serve five years in prison in addition to probation, which he would successfully complete. While incarcerated, he completed a bachelor's degree in nursing, as well as petitioning the Georgia Board of Pardons and Paroles. On August 11, 2003, Blackwell was granted a full pardon, a portion of which read "All civil and political rights, including the right to receive, possess, or transport in commerce a firearm ... are hereby restored." However, shortly after moving to Tennessee he encountered a problem.

Blackwell wanted to take his son hunting one weekend and was denied while trying to purchase a .22 rifle for his son. Two years of unsuccessful communication with the Tennessee Bureau of Investigation and the Attorney General's office led Blackwell to file a lawsuit against the state of Tennessee, Governor Phil Bredesen, and Attorney General Bob Cooper. Blackwell argues that his right to bear arms was restored upon his reception of the Georgia pardon. Also supporting Blackwell's position are various Second Amendment Advocates, who have historically refrained from voicing support for the rights of some felons to possess firearms. More notably, the Tennessee Firearms Association showed their support for Blackwell by filing a brief in the lawsuit, the first time the Association has done so in 16 years. Nashville attorney John Harris, who also serves as the volunteer executive director for the Tennessee Firearms Association, illustrated the significant issue being considered. "This is a question of, can the Tennessee General Assembly pass a statute that restricts the constitutional authority of another branch of the government?"

Although Blackwell's position was dismissed by the Davidson County Chancery Court, the case has been appealed and is under consideration by the Tennessee Court of Appeals. In preparation on the trial, Blackwell has retained the counsel of David Raybin, a distinguished member of the Nashville-based law firm Hollins, Raybin & Weissman, P.C. "The pardon restores constitutional rights, that's what a pardon does," stressed Raybin. "Therefore, it restores his right to a firearm. That's it, in its simplest terms." Moreover, Raybin maintains that the power to pardon and reinstate a felon's rights is preserved in a state's constitution. Furthermore, when a state statute conflicts with such a right, the constitution should prevail. Blackwell's full argument and brief can be found here.

Conversely, the state insists that the challenged statutory authority, which makes it unlawful for a felon to possess a firearm, does not exempt pardoned felons whose rights have been restored. Likewise, the Tennessee Attorney General's Office stated that a correlation between guns and drugs makes it reasonable for Tennessee legislators to expect the possibility of felony drug offenders, pardoned or not, to misuse firearms in the future. Another supporting factor for the state is a similar case tried in 2002, where the Tennessee Supreme Court held that a violent felon whose rights had been restored was forbidden to possess a firearm. Attorneys for the state asserted that, "the constitutional right to possess a firearm is not absolute." A full summary of the state's argument and their brief can be found here.

However, a recent U.S. Supreme Court Decision, District of Columbia et al. v. Heller, may prove to be more essential to resolving this case. In Heller, the Court ruled that the Second Amendment declares an individual, constitutional right to firearm possession for all citizens. Raybin asserts that a felon's Second Amendment rights are included in the restoration of their civil rights. Similarly, Raybin believes the Blackwell case will mark the first use of the Heller decision in Tennessee. The Tennessee Court of Appeals ruling on Blackwell is expected sometime mid-October.

Sources:
Should pardoned felons have gun rights?

Convicted Felon Sues State Over Right To Bear Arms

U.S. Constitution: Second Amendment

District of Columbia et al. v. Heller, 554 U.S. 570 (2008)

Verified Complaint for Declaratory Relief: Blackwell Motion in Chancery Court

Brief of the State

Brief on behalf of Amicus TN Firearms Association, Inc.

Brief of David Blackwell

Posted By Eston Vance Whiteside