Question about public parks...

[JTH]

Possibly stupid question---given the state's pre-emption law that just passed, are cities and counties still able to post public parks and such as "no CCW" areas?

For example, in Plattsmouth I believe that the city administrator has the parks posted (along with the community center)---but there wasn't an ordinance created to do so.  As a functionary of the city government, can they unilaterally do that?

[NE Bull]

I've been wondering the same about Lincoln and their putting public parks off limits, one of the places my kids would like to go, but I'm sorry, I'm not stepping foot onto the trails in Wilderness Park or Pioneers Park without protection.

[bkoenig]

In Wilderness park you don't need to be worried about being mugged so much as being chased by a naked guy 

[SemperFiGuy]

For What It's Worth...........

[Pertains to Omaha, only]

Late summer 2010 I called the Omaha City Attorney's office to see if an Omaha ordinance existed which prohibited Concealed Carry in Omaha public parks.

The Nice Lady Attorney said that--after checking around and consulting other attorneys in the office--she and they could not find any such ordinance.

However, she also said that no prohibition exists to prevent the City Parks folks from posting NO CCW signs on such parks as the City Parks Department wishes to post.   Elmwood Park is so posted at one of the Pacific Street entrances, as I recall from driving through recently.   Also, the little tiny parking area along the West Papio Bike Trail immediately south of 84th Street was also posted, last time I checked.

So--check the Omaha parks for NO CCW signs when you go there.   Of course, you'll have to check the Entire Park and All Its Many Entrances and Parking Areas and Whatever, just to be sure.    Just like the City of Omaha to try to cover an entire park area of many acres with one small sign.   And then nail you for not seeing the one small sign.


sfg

[JTH]

However, she also said that no prohibition exists to prevent the City Parks folks from posting NO CCW signs on such parks as the City Parks Department wishes to post.

This is what I'm curious about---state pre-emption means that city/county governments cannot create rules that limit CCW.  However, city/county departments and regulatory agencies _can_?

So that is what I'm asking---has anyone checked on anything officially as to whether or not any city or county person/institution (City Parks and Rec, City Administrators, etc.) can ban CCW in public places? 

For example, in Ohio:
"The Supreme Court of Ohio held today that a Clyde city ordinance banning possession of firearms in municipal parks is unconstitutional because it conflicts with a general state law that permits licensed individuals to carry a concealed weapon on any public property other than at locations specified in the state statute. The Court?s 4-3 decision was authored by Justice Terrence O?Donnell.

In January 2004, the General Assembly enacted R.C. 2923.126, a state law allowing persons who meet certain qualifications and obtain a license to carry a concealed firearm anywhere in Ohio other than in excepted locations enumerated in the statute. In uncodified language adopted as part of the concealed carry bill, the legislature declared that its purpose was to adopt a general and uniform regulatory scheme for the concealed carry of firearms in all parts of the state. In adopting that scheme, the legislature stated that it intended to preempt the future adoption or enforcement by any Ohio municipality or political subdivision of any local ordinance that conflicted with state law by prohibiting the carrying of a concealed weapon in a location where concealed carry is permitted by R.C. 2923.126."


Don't we have a similar situation here, with respect to the way our state laws have been written?  Now, in Ohio's case, a municipality created an ordinance to ban carry in their parks---in Plattsmouth, we have a case where they didn't create an ordinance, the city administrator unilaterally chose to do post the city parks.  (Well, I assume with the backing of the mayor, who is strongly anti-gun.)  Is that difference sufficient to circumvent the pre-emption law? 

Anyone know of any official legal opinions on this?

[OnTheFly]

This is just my layman, non-attorney, man-on-the-street view, but...

The passage of recent legislation (LBxxxx?...I forget  ) which disallowed any town, city, etc. from passing local ordinances more restrictive than state law in regards to concealed carry, left only one way to limit concealed carry in a location not already listed in the state law (schools, polling places, etc.).  That is to post a No CC sign.  This would prove to be VERY difficult IMHO since most public parks can be entered from driveways, sidewalks, or just parking on the street and walking through the grass.  How can they argue that they have posted conspicuously as state law requires?

Fly

[mizzly]

You talking about "public" parks?

Don't we own them?

[Dan W]

I believe that Fly is correct. Any park can be posted by those in control of it, question is can they effectively post the area.

NFOA is working to enhance the signage statutes, to force the use of signs that are consistent, visible and posted in such a way that they can not be missed.

Watch the front page of the NFOA website, where I will be re posting a  great study done by one of our  new directors.

It it the impetus for Legislation that will be introduced in the upcoming session, along with a few other things, to eliminate the confusion about places that are posted " No Concealed Handguns" and to clarify the law.

I plan to post it up at the beginning of the session, with part 2 to follow about a week later

[justsomeguy]

2 E L O -
I brought this up with Marty Conboy a while back:

According to Code 1980, ? 21-9; Ord. No. 33732, ? 3, 12-12-95 "It shall be unlawful for any person ...... or to carry any firearms, in any park, playground or boulevard in this city;"

According to recently enacted LB 430 the state has overridden this law for concealed carry permit holders - " Any existing city or village ordinance, permit, or regulation regulating the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the act, is declared to be null and void as against any permitholder possessing a valid permit under the act."

As I am not a lawyer, and I don't wish to become a test case, can you clarify Omaha's position on permit holders carrying in city parks? Many are posted "No concealed weapons", making them a posted place that permit holders can not carry in. Several, though, are either not posted or only posted at some entrances.

Thanks for any information you can provide!

His response:

Because the park restriction ordinance regulates the 'ownership, possession, or transportation' of the concealable firearm, it is voided as to permit holders.  Note, however, the language of Sec. 69-2441(1)(a) which limits the applicability of the permit.  There is language about the permit being restricted in certain areas, including those "where handguns are prohibited by law'.  This seems inconsistent with the new language of LB 430.  My advice would be that no one should be ticketed or restricted in the city parks, and if the officer feels the park is restricted under this state law, then the warning under section (2) of 69-2441 should be given.  If the person would not comply, the most they could be cited for would be refusing to leave as ordered under Sec. 20-155 of the city code. I don't know how a court would resolve this inconsistent language, but I do know that the person should not be cited under the void city ordinance, which no longer applies to permit holders.

I don't see that the sign has any bearing on what you do in your car while passing through.

/rl

It seems that Marty Conboy, The Omaha City Prosecutor, is of the opinion that LB 430 prohibits cities from posting parks.

Laws of cities or other political subdivisions of the state are considered null and void. Concealed Carry can only be prohibited by State or Federal law. Not some internal policy of the Parks Department.

Or am I missing something?

[OnTheFly]

I believe that Fly is correct...

Even a blind squirrel finds a nut every once in a while.  

Fly

[OnTheFly]

Justsomeguy,

I agree.  Conboy is admitting that the law they have/had on the books is no longer valid.  He is NOT saying that they can not attempt to post any area they so desire as No CC.  Though I believe he realizes that trying to post a park with an infinite number of entry points would be impossible to enforce and prosecute.

Fly

[justsomeguy]

Only individual property owners can post as off limits. The parks are owned by "the people" and controlled by a government of "the people". Any government smaller than the state is bound by LB430. If cities could declare areas off limits simply by posting as such what's to stop Obamaha from posting the whole town?

[Dan W]

State law

018.04 A person, entity, or employer in control of a place or premises described in Section 018.01O above, which is open to the public, may prohibit permit holders from carrying concealed handguns in the place or premises by posting a conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or by making a request, directly or through an authorized representative or management personnel, that the permit holder remove the concealed handgun from the place or premises

[justsomeguy]

Dan, I believe the term "entity" was intended to describe a business entity. A governmental "entity" smaller than the state is bound by LB 430.

[OnTheFly]

69-2441. Permitholder; locations; restrictions; posting of prohibition; consumption of alcohol; prohibited.

(1)(a) A permitholder may carry a concealed handgun anywhere in Nebraska, except any: Police, sheriff, or Nebraska State Patrol station or office; detention facility, prison, or jail; courtroom or building which contains a courtroom; polling place during a bona fide election; meeting of the governing body of a county, public school district, municipality, or other political subdivision; meeting of the Legislature or a committee of the Legislature; financial institution; professional or semiprofessional athletic event; building, grounds, vehicle, or sponsored activity or athletic event of any public, private, denominational, or parochial elementary, vocational, or secondary school, a private postsecondary career school as defined in section 85-1603, a community college, or a public or private college, junior college, or university; place of worship; hospital, emergency room, or trauma center; political rally or fundraiser; establishment having a license issued under the Nebraska Liquor Control Act that derives over one-half of its total income from the sale of alcoholic liquor; place where the possession or carrying of a firearm is prohibited by state or federal law; a place or premises where the person, persons, entity, or entities in control of the property or employer in control of the property has prohibited permitholders from carrying concealed handguns into or onto the place or premises; or into or onto any other place or premises where handguns are prohibited by state law.

Since the city could be considered an "entity", this would be their only method of restricting CC.  Why does Omaha not post the entire city?  The same reason they do not post the public parks.  It would be too costly and ineffective.

Fly

[Dan W]

Tell me how you think a court will rule on that...

The  reference to section  018.01O

Any place or premises or employer owned vehicle where those in control of the place, premises or vehicle have prohibited permit holders from carrying concealed handguns;

You could argue that a government subdivision is not in control of the place or premises, but I don't think it will hold up.

LB430 does allow for restrictions consistent with state law

[justsomeguy]

Fly, since when has costly and ineffective stopped Obamaha from doing anything?

[justsomeguy]

Cities and villages shall not have the power to regulate the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the Concealed Handgun Permit Act, except as expressly provided by state law, and shall not have the power to require registration of a concealed handgun owned, possessed, or transported by a permitholder under the act. Any existing city or village ordinance, permit, or regulation regulating the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the act, except as expressly provided under state law, and any existing city or village ordinance, permit, or regulation requiring the registration of a concealed handgun owned, possessed, or transported by a permitholder under the act, is declared to be null and void as against any permitholder possessing a valid permit under the act.

Dan, It could be argued that your reference is "expressly provided for in state law". How successful you would be would depend on whose court you were in.

The intent of the statute is perfectly clear. (To most at least)

[Dan W]

Here is the source for my opinions, stated previously, quoted from an opinion by AG Bruning

http://www.ago.ne.gov/agopinions/details.htm?searchStr=1&_search_id=2065

   
 
  While not able to prohibit permitholders from carrying concealed handguns anywhere in the city, a city or village could still, under the next-to-last exception in ? 69-2441(1)(a) of the act, prohibit permitholders from carrying concealed handguns in specific places or premises that it directly controls. For example, a city or village could ban concealed handguns in city-owned parks, buildings, recreation facilities, arenas, etc. The city or village would have to comply with the procedures outlined in ? 69-2441(2) regarding the posting of notice.

We do not believe, however, that these posting provisions can be used by a city or village to prohibit permitholders from carrying concealed handguns anywhere within its borders. To allow cities and villages to use the posting provisions to ban permitholders from carrying concealed handguns on any public property (especially streets and other public ways) within their borders would seriously undermine the policy of the Legislature to allow permitholders to carry their concealed handguns ?anywhere in Nebraska.? Also, the term ?in control of the property? seems to suggest that it is a narrow exception which only applies to owners or lessees of distinct ?properties? and not to a city or village, which may have some ?control? over everything within its boundaries, but is the owner or lessee only of property it, as an entity, actually owns or leases. Therefore, it appears that cities and villages cannot utilize this provision to effectively ban permitholders from carrying concealed handguns everywhere within their boundaries.

This opinion was pre-LB430, so it still is a question in my mind whether or not LB430 preempted the power of cities and  villages to ban concealed handguns in city-owned parks, as the AG stated they had previous to LB430.

[JTH]

Dan wrote:
"...so it still is a question in my mind whether or not LB430 preempted the power of cities and  villages to ban concealed handguns in city-owned parks, as the AG stated they had previous to LB430."

Precisely.  City parks and such are expressly "owned" by the city for public use, as opposed to buildings "owned" for business/administration purposes---given these circumstances, are city/county governments able to thus regulate concealed carry in public parks?

When city parks are posted, is that a "regulation" from the city government?  If so, is it valid considering LB430?

This is separate from the "can it really be posted appropriately" question.