NFOA MEMBERS FORUM
General Categories => Laws and Legislation => Topic started by: TwoSwords on April 25, 2014, 08:28:33 PM
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Here is what ruined my day.
I came across this article:
http://journalstar.com/news/local/govt-and-politics/hicks-you-can-t-tear-up-parks-looking-for-loot/article_731b5bc5-a999-5c9f-9b45-01d32c05fc40.html (http://journalstar.com/news/local/govt-and-politics/hicks-you-can-t-tear-up-parks-looking-for-loot/article_731b5bc5-a999-5c9f-9b45-01d32c05fc40.html)
The topic was you can't dig stuff up in a Lincoln City Park when Metal Detecting, then listed all the other stuff you can't do in a Lincoln City Park.
"No Guns even with a Permit" Now they had my interest.
Go here, sure enough no guns in Lincoln Parks. See - 12.08.200 Weapons Prohibited in Parks and Park Facilities.
http://www.lincoln.ne.gov/city/attorn/lmc/ti12/ch1208.pdf (http://www.lincoln.ne.gov/city/attorn/lmc/ti12/ch1208.pdf)
I called the Lincoln City attorney and said, I don't think they can do that and ban CCW in the Park.
NE Statute 18-1703.
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,
He replied via email, and came back they can control the "property" Using 69-2441
a permitholder may not carry a concealed weapon in any “place or premises where the person, persons, entity, or entities in control of the property . . . has prohibited permitholders from carrying concealed handguns into or onto the place or premises . . . .”
The city "controls" the property so they can ban CCW in the parks was the justification.
I then asked about 69-2441 (2)
If a person, persons, entity, or entities in control of the property or an employer in control of the property prohibits a permitholder from carrying a concealed handgun into or onto the place or premises and such place or premises are open to the public, a permitholder does not violate this section unless the person, persons, entity, or entities in control of the property or employer in control of the property has posted conspicuous notice that carrying a concealed handgun is prohibited
I basically argued then if you control the property then you have to put up the signs at "every public entrance"
And exactly how do you do that around a 10 acre park? *Crickets*
City Attorney Refused to answer.
Lincoln PD - Yes guns are banned in the parks, nothing else.
They want to ban the guns with 69-2441 but refuse to post the sign around the entire perimeter of a park to everyone approaching on foot because they know its ridiculous.
It's the little stuff like this that gets me the most upset because of the attitude taken with the law. Pick and choose.
As conservative as Nebraska is supposedly supposed to be, you pull back the covers a bit and this is what you get. Liberal mandated control using the laws to their choosing.
And it will never change unless every last one of you call and email the Lincoln City Council and demand they drop the ordinance or put up 6000 signs around every Lincoln City park because that is what the law says.
So it stays on the books because nobody wants to be the test case in a minor issue. I get that.
Here is the City Council email list
demery@lincoln.ne.gov,
lgaylorbaird@lincoln.ne.gov,
rchristensen@lincoln.ne.gov,
tfellers@lincoln.ne.gov,
mmmeyer@lincoln.ne.gov,
jcamp@lincoln.ne.gov,
jcook@lincoln.ne.gov,
ceskridge@lincoln.ne.gov
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I saw that article and had the same thought. Personally, I don't believe the city can ban a permit holder from carrying a concealed handgun in a park any more than on a sidewalk. Both are in the city's "control."
Sure, if the park was private, the owner could ban guns by conspicuously posting all entrances. However, the city is preemted from doing so, at least as it applies to a CHP holder. Even if they had the right to do so, then they would have to post every entrance conspicuously.
The only place where the city could conceivably enforce a ban is on property where it acts as a landlord such as a city office building. I think the statute may even prevent them from doing that.
Of course, my legal opinion on the matter is worth precisely what you paid for it.
IIRC, the previous city attorney in Omaha agreed with my interpretation of the statute and the Omaha Police were trained that concealed carry by a permit holder in a park is legal.
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Maybe you can be the test case. Since you have a response from the city attorney and the police saying you cannot carry, they have imposed a prior restraint on the exercise of a constitutional right. That may be enough to create standing to sue.
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FWIW...........
The Nebraska State Patrol has a Contact Us email portal on the NSP website.
Responses to inquiries come back very quickly and are usually from an NSP attorney.
Might wanna try that option for information on this issue. Looks as if this Lincoln ordinance may be treading on NSP's turf. Could be presented as a constitutional issue.
sfg
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The city can and it seems HAS banned CCW on City property, not any different than a private business barring CCW on their property.
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The Lincoln City Council is under full control of the Democrats and it is futile to call them and demand anything.
It is also futile for the City attorney and the LPD to defy state law by knowingly giving false information concerning the legal carry of concealed handguns in the parks.
The State Patrol has issued the rules and regulations, and in the definitions they list
002.13 “Posted conspicuous notice” shall mean a clearly visible sign posted at each public entrance to a place or premises open to the public which shall clearly state that concealed handguns are not allowed in the place or on the premises. A recommended format for the sign can be found in Section 018.04 of these regulations.
State wide preemption exists
"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. 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."
So, the only thing missing here is legal precedent, and in a court of law I don't think the Lincoln City Attorney has a chance of upholding his view of the ordinance in question, because the City has not met the burden of the state rules on posted conspicuous notice.
The 2nd Amendment Foundation would probably love a case like this.
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(2) If a person, persons, entity, or entities in control of the property or an employer in control of the property prohibits a permitholder from carrying a concealed handgun into or onto the place or premises and such place or premises are open to the public, a permitholder does not violate this section unless the person, persons, entity, or entities in control of the property or employer in control of the property has posted conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or has made a request, directly or through an authorized representative or management personnel, that the permitholder remove the concealed handgun from the place or premises.
Since a park is wide one with generally no specific "entrance" then how do you post a conspicuous notice?
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Since a park is wide one with generally no specific "entrance" then how do you post a conspicuous notice?
Not my problem!
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.This has been a big sliver in my back side for quite a while, too. I have voiced my concern many a time. I'm not sure if this is something the NFOA can lobby the council on, or if it would in fact take court action. .....
BUT I will say this; I WILL NOT go to places like Wilderness or Hiking the trails of Pioneers unarmed. Take that as you like.
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I wonder if a presence at a council meeting and raising question to the ' law' would do any good. We would have to have our crap together; citing the homicides, attacks, sexual predators, drug busts, etc. that are know to happen in or in the vicinity of Lincoln Parks, including the famed miles and miles of bike trails.
Antelope valley Ditch? Oak Lake? Bowling Lake? The other lake on the other side of town? Holmes? ( whew, late night brain belch)
Anyone have the time and means to collect that data?
If we can get a group together to bring this forward, I WILL see what I can do on this end ( and what our organization's boundaries may be), and see if this is something SAF might be interested in taking on- without a test case, I'm not so sure.
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I agree with Dan - I think the city council is a dead end. If the SAF would be willing to assist I think that would be the best route.
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I would have to agree with that, BUT, why not go the "civil" route first? My thoughts are to approach the Council with a well thought out / planned argument- BUT only, with the SAF card up our sleeve.
Much like we did with Omaha. We make contact and when the council snubs it's nose, we smack 'em with a court case! Then hopes are the come contacting us to see what can be done.
(OR we tell 'em it's good for UNL athletics and we are golden. ;) )
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The city can and it seems HAS banned CCW on City property, not any different than a private business barring CCW on their property.
It is very different. The city is prohibited from regulating possession of a firearm by a CHP holder. The city also owns the public roads and some sidewalks. Does that allow them to ban any pedestrian on that city property from carrying?
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The city also owns the public roads and some sidewalks. Does that allow them to ban any pedestrian on that city property from carrying?
Attorney General Bruning has issued an official opinion on that question...they can not.
http://www.ago.ne.gov/ag_opinion_view?oid=4133 (http://www.ago.ne.gov/ag_opinion_view?oid=4133)
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Oh, I know. I was just trying to get a discussion going.
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Actually, cities, generally speaking, do NOT own the sidewalks or streets..........those projects are paid for by homeowners, by way of property taxes.
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That's why I said some sidewalks as residential sidewalks are owned by the homeowner. Downtown sidewalks are another matter and often are owned by the city. Streets are owned by an SID when a new development goes in (at least in Omaha). When the SID gets annexed that property is owned by the city.
The fact remains that even if the city is acting in its capacity as the property owner and not the government, it is still the city and the statute prohibits the city from regulating possession of a firearm as to a permit holder.
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Until we get state legislators to pass a State Constitutional Ammendment stating Nebraska is a "Constitutional Carry" state these issues will persists. We must get the Legislature to write a bill and get it passed!!
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The city can and it seems HAS banned CCW on City property, not any different than a private business barring CCW on their property.
Actually, cities, generally speaking, do NOT own the sidewalks or streets..........those projects are paid for by homeowners, by way of property taxes.
I would argue it is completely different. Government owned properties are public property. It isn't one group of people that purchased it and have exclusive rights to it. Everyone whose tax money was used for that property owns a part of it and helped purchase it. Therefore, I don't think it's a stretch to say it should be open to everyone.
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^THIS
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I like the reasoning, but I also have IBM stock and bonds in my retirement account. That doesn't mean I can walk into the CEO's office, put my feet up on the desk and tell him I own it.
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The OP gave a link to the AG opinion on CCW but didn't mention the paragraph which answered the question he asked of the city attorney:
2 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.
This city park problem isn't a battle that should be pursued.
What we should using our energy for is a law to restore Constitutional Carry in the entire State, just like five other States have. We used to have Constitutional Carry in all the States in this nation. As youth in the late 1950s I took a bus 3 miles to down town Denver and purchased two M1 Garands for $75, no questions asked. I took the bus home carrying them. No one gave me a second look. Everyone owned guns and had them in their homes, cars, trucks, pickups AND concealed in their pockets and purses. No politician thought it a problem that people had a right to protect themselves using the same weapons and methods that crooks and thugs use.
It wasn't until 1927 that a nationwide prohibition on mail-order concealed weapons was banned. In 1934 unlicensed possession of automatic weapons was banned. The anti-2nd Amendment infringements were made more onerous when the Federal Firearms Act of 1938 places the first limitations on selling ordinary firearms. Persons selling guns are required to obtain a Federal Firearms License, at an annual cost of $1, and to maintain records of the name and address of persons to whom firearms are sold. Gun sales to persons convicted of violent felonies were prohibited. In 1964 I was in college in Texas when President Kennedy's assassination was announced on the radio. In August of 1966, while I was in grad school, that same radio announced the death of Charles Whiteman, the Texas Tower shooter, who was later discovered to have been afflicted with a brain tumor. Two years later, in 1968, the Gun Control Act of 1968 (http://usgovinfo.about.com/gi/dynamic/offsite.htm?site=http://www4.law.cornell.edu/uscode/18/ch44.html) massively decreased a citizen's Right To Bear Arms.
Another big change was the capture of the Democrat party in 1968, at its Chicago Convention, by the Extreme Left. Since that time the Democrat part has been the locus of ALL actions designed to infringe and if possible repeal the 2nd Amendment. Lately, they've been pressing for repeal of the Constitution, calling it an outmoded document, or a "little book".
We've been shooting too low.
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November 22, 1963 12:30
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I like the reasoning, but I also have IBM stock and bonds in my retirement account. That doesn't mean I can walk into the CEO's office, put my feet up on the desk and tell him I own it.
Did someone force you with the rule of law to invest in IBM? Is the CEO's office open to the public? No? Not the same.
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So this is the answer from the City attorney.
The City ordinance is valid under state law, but to successfully prosecute someone who has a concealed carry permit for violating the ordinance it would be necessary to establish either that there was conspicuous posting of the prohibition on possession of firearms at the location where the violation occurred, or that a representative of the City informed the permit holder of the prohibition and asked that the weapon be removed from the property, which request was refused.
As one final point I said, why have the ordinance if we know the Lincoln Parks are not conspicuously posted?
One of the City Council members came back with, we will look at the City Park Posting.
Good, news they will be hard pressed to prosecute someone unless they are caught standing right in front of a sign in a city park. I run around Lincoln, but have not been in a City park in years, so I don't know what the posting looks like if any. You can always say, what sign?
Bad news, you could still be the test case and all this is untested in court. Don't walk past signs.
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What we should using our energy for is a law to restore Constitutional Carry in the entire State
While I agree with the goal, you will never get this in a first bite, unless I misunderstood your meaning.
Follow the Kansas model, baby steps is the way to go. If you try to go there in one step the Anti's will scream, "We can't have all these UNTRAINED people walking around with guns." Wrong yes, but the public almost always buys this.
The rights were taken away slowly, you will never get them back in one chunk.
Even in KS we have not ditched CCW training yet, and not yet gained Constitutional Carry.
This is the steps I would suggest, you can arrange the order as you see fit.
Remove the Force of Law from the No Gun sign. Walk past a sign in KS, they can ask you to leave that's it.
Public Building Carry, Tax payers paid for them, we carry in them. Put in the metal detectors or allow CCW, Period. KS DONE.
Get rid of the Bar Carry Ban 51% - KS Bar Carry OK
Alcohol Carry - .08 Same as Driving - KS, UT - I don't even drink but NE Zero Tolerance is over the top. (Yes I know they don't mix, I don't drink)
School Grounds carry - Yes
And the latest.
State Wide preempted Open Carry - KS July 1, 2014 effective date.
You need the last one before you'll get anywhere near ConC. IMHO. Once you have the last item, people can Open Carry without the CCW training. Then you have them.
One more step to get to ConC.
I'm not here to debate Open Carry v. CCW, I'm just saying its a helpful tool if you want to get to ConC.
Go study the CCW permits in various states. There are 3 models generally speaking.
1) Some Mandated State Training- KS, UT, NE, MO, IL, TX plus
2) Take an NRA Class - IA Model IRC
3) Give money get permit
4) Constitutional Carry - AK
You'll not get from #1 to #4 in one step, especially in the NE Unicameral, unless all the liberals are voted out.
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Erosion seems like the normal, expected consequence of time marching on. It could be house paint, beach front property, or constitutional rights.
I have never seen a house, slowly get painted, or beach front property restore itself.
When the wall around East Germany came down, it was not slowly, it was all at once.
My avatar photo, was a victory, that fell in our favor, in the blink of an eye.
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I brought the topic of no ccw in parks up in another thread in conjunction with the Lincoln city libraries, which are posted. Basically the response from folks on the board was that if the city posts the property, it is a legal posting and cannot be carried past. But really, what gives the city the authority to post a publicly owned property? The city parks and libraries are in effect owned by us, the taxpayers. It is a load of BS in my opinion. Publicly owned property should not be able to be legally posted.
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On the topic of changing state law/constitution, has a state-wide referendum or initiative been investigated to solidify preemption, or change the state constitution? I realize this is difficult and lengthy process; however, based on what I'm reading, the signatures have to be evenly distributed on the petition, so the liberals in the main cities don't have all the power. It's a more broad-based process across the state. I would imagine as you get outside Lincoln and Omaha the views expressed here are more wide spread.
I have heard that in other states, this process was not used typically for firearm laws because you'd get all sorts of outside gun control groups pumping money into the state against it. But I'm not sure it isn't worth a try.