As a former Davidson County prosecutor for three years, Kevin Kennedy prosecuted serious felony and weapons cases and understands how Tennessee prosecutors use firearm evidence to add mandatory consecutive prison exposure to an underlying felony. A § 39-17-1324 charge can dramatically increase the stakes of a case even when the underlying dangerous felony already carries substantial punishment.
Tennessee creates separate offenses for possessing a firearm with intent to go armed during a dangerous felony and for actually employing a firearm during the offense, attempt, or flight. These charges carry mandatory minimum sentences, are not probation-eligible, and must run consecutively to the sentence for the underlying dangerous felony.
Possession of a Firearm During a Dangerous Felony in Tennessee
Tenn. Code Ann. § 39-17-1324(a) makes it an offense to possess a firearm or antique firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony. Subsection (b) separately makes it an offense to employ a firearm during the commission or attempted commission of a dangerous felony or during flight or escape from it.
Possession and employment are not interchangeable. The precise subsection matters because the felony classification and mandatory minimum sentence differ substantially.
What Is a Dangerous Felony?
The statute contains a specific list of qualifying dangerous felonies. It includes attempted first degree murder, attempted second degree murder, voluntary manslaughter, carjacking, aggravated and especially aggravated kidnapping, aggravated and especially aggravated burglary, aggravated and especially aggravated stalking, initiating the process to manufacture methamphetamine, and qualifying felony controlled-substance offenses involving sale, manufacture, distribution, or possession with intent.
Attempts to commit listed dangerous felonies are also included. If the underlying offense is not within the statutory definition, § 39-17-1324 does not apply merely because a firearm was present during some other felony.
Possession With Intent to Go Armed
A violation of subsection (a) is a Class D felony. For a defendant without the qualifying prior felony enhancement, the statute imposes a mandatory minimum three-year sentence to the Department of Correction. If the defendant had a prior felony conviction at the time of the offense, the mandatory minimum increases to five years.
The State must prove possession of the firearm and the intent to go armed during the dangerous felony. Where a gun is merely found nearby or in a shared vehicle or residence, constructive-possession and intent issues may become central.
Employing a Firearm
Employing a firearm under subsection (b) is more serious. The offense is a Class C felony carrying a mandatory minimum six-year sentence. If the defendant had a prior felony conviction, the mandatory minimum increases to ten years.
Employment generally involves actual use of the firearm during the offense, attempt, or flight. Depending on the facts, the defense may dispute whether the firearm was displayed, brandished, fired, used to threaten, or otherwise employed within the meaning of the statute.
The Sentence Must Be Consecutive
Tennessee requires a sentence under § 39-17-1324 to run consecutively to any sentence for the underlying dangerous felony. This means the firearm sentence is added on top of the sentence imposed for the felony rather than served at the same time.
The statute also makes the mandatory minimum unusually restrictive. A person sentenced under subsection (a) or (b) is not eligible for pretrial diversion, judicial diversion, probation, community corrections, drug court, or another program allowing release before service of the mandatory minimum, subject to statutorily permitted sentence credits.
When the Firearm Is Already an Element of the Underlying Felony
Section 39-17-1324 contains an important charging limitation. A person may not be charged under subsection (a) or (b) when possessing or employing a firearm is an essential element of the underlying dangerous felony as charged.
The State may sometimes elect to prosecute a lesser form of the underlying offense in which firearm possession or employment is not itself an element and separately pursue the § 39-17-1324 count. The defense should compare the indictment language closely with the elements of the underlying offense.
Separate Count and Separate Offense
The firearm charge is a specific and separate offense and must be pled in a separate count of the indictment or presentment. It is generally tried before the same jury and at the same time as the underlying dangerous felony.
That structure means a defense attorney should evaluate the firearm proof independently. Even if the State has evidence supporting the underlying felony, it still must prove the additional possession or employment elements.
Common Defenses to a Dangerous-Felony Firearm Charge
Possible defenses include lack of possession, lack of intent to go armed, failure to prove employment, an underlying offense that is not a statutory dangerous felony, mistaken identity, unlawful search or seizure, and the statutory prohibition against duplicating a firearm element already included in the underlying charge.
Challenge Constructive Possession
If the firearm was found in a car, house, bag, or other shared location, the defense should examine who actually controlled the weapon. Ownership, fingerprints, DNA, location, witness testimony, and access by other people may create reasonable doubt about possession.
How Kevin Kennedy Defends Dangerous-Felony Firearm Cases
Kevin begins by comparing the firearm count with the precise dangerous felony charged and identifying whether the State alleges possession or employment. He reviews body-worn camera footage, surveillance video, photographs, firearms evidence, DNA or fingerprint testing, search warrants, witness statements, phone evidence, and the indictment itself.
His former-prosecutor experience helps him evaluate how the State is likely to use the firearm count to increase plea and sentencing exposure and where that count may be vulnerable. Depending on the evidence, the defense may challenge possession, employment, the dangerous-felony classification, the indictment, the legality of the search, or the applicability of the statutory charging limitation, negotiate where appropriate, or prepare the case for trial. Anyone arrested in Nashville or a neighboring county can call Kevin Kennedy Law Firm for a private, no-obligation conversation.
Legal references: Tenn. Code Ann. §§ 39-17-1324, 39-11-106, 40-35-111, 40-35-303, and 40-35-501. This page is general information, not legal advice.
Related Weapon Offenses Charges
For a complete overview of Tennessee gun and weapons charges, vehicle searches, and constructive possession, see our Nashville Gun Lawyer & Weapons Charge Attorney page.