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Refresh My Memory: When a Jurisdiction Leases to a Private Organization

TFred

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I seem to recall that it's been established that if a jurisdiction leases their real property to a private organization, that is essentially a loophole to the Preemption statute (§ 15.2-915) which ordinarily prevents the jurisdiction from regulating "the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms."

Does someone have links or references handy to refresh my memory on this? Was that an AG opinion?

Thanks!

TFred
 

Tess

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I seem to recall that it's been established that if a jurisdiction leases their real property to a private organization, that is essentially a loophole to the Preemption statute (§ 15.2-915) which ordinarily prevents the jurisdiction from regulating "the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms."

Does someone have links or references handy to refresh my memory on this? Was that an AG opinion?

Thanks!

TFred


It was a Cuccinelli AG opinion Link here through another website and commentary here.
 

color of law

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It was a Cuccinelli AG opinion Link here through another website and commentary here.
The AG opinion is an excellent example of double speak. The AG bases his opinion on facts not in evidence. Example: was the event open to the public? It is written in a way to make you believe that just because a private entity leases public property they have the power to regulate your gun rights. The true answer is, it all depends.
 

user

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that link may have been mucked up, as well - when I tried to look at it, I did get a PDF, but it was blank except for the great seal at the top.

I've looked at this issue several times already, but other than "read the contract" and "the creator of an estate in land can convey no greater interest than he, himself has" (the origin of the "Dillon rule"), I can't remember what I said. I may be able to take a deeper look.

Thanks! That is exactly what I was looking for.

By the way, the article had a deep link to the OAG website, which has gone stale. The direct link to the OAG copy of the opinion is now here.

TFred
 
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TFred

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that link may have been mucked up, as well - when I tried to look at it, I did get a PDF, but it was blank except for the great seal at the top.

I've looked at this issue several times already, but other than "read the contract" and "the creator of an estate in land can convey no greater interest than he, himself has" (the origin of the "Dillon rule"), I can't remember what I said. I may be able to take a deeper look.
I just tried the link from my computer and it worked OK.

I'm planning to be at lunch today, would love to chat with you about this!

TFred
 

user

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When we discussed that matter yesterday, T, it occurred to me that the city lacked the authority to authorize a lease that allowed for any restriction on firearms - so the ordinance or resolution that the city council approved may be void. But here's something else - I think that the city lacks the authority to enforce any policy regarding a prohibition on carriage of firearms. I wouldn't test this by showing up at the leased premises with a gun, but it would be a good declaratory judgment action.
 

color of law

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When we discussed that matter yesterday, T, it occurred to me that the city lacked the authority to authorize a lease that allowed for any restriction on firearms - so the ordinance or resolution that the city council approved may be void. But here's something else - I think that the city lacks the authority to enforce any policy regarding a prohibition on carriage of firearms. I wouldn't test this by showing up at the leased premises with a gun, but it would be a good declaratory judgment action.
BB62 and myself dealt with this in Ohio. Ohio law pretty closely mirrors Virginia law. There were to different events being sponsored by private entities on public streets/parks. Both posted no weapons at their events. Notice was sent to them that their policy violated Ohio law. Initially no response. BB62 contacted the news the day before the first event, a story was feathered on the 6pm news. The signs came down. And, we had an open carry educational walk at their event to drive to point home.

Above, I said it all depends. To reserve a room for a private meeting in a government building may be restrictive depending on the law of the state.
 
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KBCraig

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In Texas, it is statute law that no property "owned or leased by" any unit of government can impose gun restrictions that aren't already in statute. I would think that would be within common law everywhere that recognizes common law.

If I lease a piece of property, and the property owner doesn't have subsurface mineral rights, then neither do I; I can't drill nor mine that property, because I didn't inherit any property rights that the property owner doesn't hold.
 

TFred

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When we discussed that matter yesterday, T, it occurred to me that the city lacked the authority to authorize a lease that allowed for any restriction on firearms - so the ordinance or resolution that the city council approved may be void. But here's something else - I think that the city lacks the authority to enforce any policy regarding a prohibition on carriage of firearms. I wouldn't test this by showing up at the leased premises with a gun, but it would be a good declaratory judgment action.
Thanks, it was very good to talk to you yesterday! I appreciate your insight. As time allows, I will investigate the particulars of the arrangement.

TFred
 

color of law

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Thanks, it was very good to talk to you yesterday! I appreciate your insight. As time allows, I will investigate the particulars of the arrangement.

TFred
Do a FOIA or open records request for the agreement. Somewhere in the agreement it will say or infer that all state and federal laws must be complied with.
 

color of law

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It's the classic "yeah, but..."

It's not against the law for the lessee to ban firearms, so any such statement or inference would not apply.

TFred
No, the lease cannot grant them a power that the city does not have to grant. In other words, the private entity cannot ban firearms because the city cannot grant the private entity that authority.
 

TFred

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No, the lease cannot grant them a power that the city does not have to grant. In other words, the private entity cannot ban firearms because the city cannot grant the private entity that authority.
The city does not grant or deny them anything. They are a private entity, just like you or me or any other organization. Without even reading it, I am as sure as I can be that a lease does not mention this subject. If it did, then THAT would be violating 15.2-915. The city is way too smart to do that.

TFred
 

color of law

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The city does not grant or deny them anything. They are a private entity, just like you or me or any other organization. Without even reading it, I am as sure as I can be that a lease does not mention this subject. If it did, then THAT would be violating 15.2-915. The city is way too smart to do that.

TFred
If the city doesn't grant or deny then where does this lease come from? So, you are saying that a private entity can take over a city park and make whatever rules they want. Is that what you are saying?
 

TFred

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If the city doesn't grant or deny then where does this lease come from? So, you are saying that a private entity can take over a city park and make whatever rules they want. Is that what you are saying?
Of course not. I said that the city does not grant or deny a private entity the right to ban firearms. The city has either formally or informally leased their property to a private entity. Both parties will claim that there is no provision one way or the other regarding the choice of the private entity to ban firearms.

TFred
 

color of law

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Of course not. I said that the city does not grant or deny a private entity the right to ban firearms. The city has either formally or informally leased their property to a private entity. Both parties will claim that there is no provision one way or the other regarding the choice of the private entity to ban firearms.

TFred
They can blow smoke all they want. But, blowing smoke doesn't carry the day. City leases will always give notice that the leasee must comply with ALL laws. I've been there and done that.
 

TFred

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They can blow smoke all they want. But, blowing smoke doesn't carry the day. City leases will always give notice that the leasee must comply with ALL laws. I've been there and done that.
Well, we're going around in circles here. I've said a couple times now what the situation is, and you keep responding to scenarios that do not apply.

TFred
 

color of law

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Well, we're going around in circles here. I've said a couple times now what the situation is, and you keep responding to scenarios that do not apply.

TFred
What I keep hearing you say is that a private entity can dictate what the rules will be on public property open to the public knowing full well those rules are in violation of state law. That is what I’m hearing you say. Is that what you are saying?
 

Tess

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Be careful what you wish for.

If the legally accepted definition becomes "the landlord makes the rules" then if you lease an apartment, an office, a storefront, etc., the landlord makes the rules.

What we have now is an AG opinion of the law. Changing the underlying law must be done very carefully.
 
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