State Preempted Roaonke County Code

[wylde007]

I shall pity you en-masse then for your, ah, "understanding" of the English language.

 

[roscoe13]

I shall pity you en-masse then for your, ah, "understanding" of the English language.

Right back atchya...

Roscoe

 

[Sesrun]

I have not received a reply from the County Attorney from my previous Cc so I just sent the following:

----------------------------------

Mr. Paul Mahoney, County Attorney
Roanoke County Atorney's Office
5204 Bernard Dr.
Fourth Floor
Roanoke, VA 24018

Mr. Mahoney,

As requested by Mr. Haislip I am contacting you for clarification
regarding Roanoke County's Code of Ordinances; Chapter 15 - Parks and
Recreation, Section 15-8 - Prohibited uses of parks, Item #6: "Hunting
and firearms" (http://library.municode.com/HTML/12222/level2/PTICOCO_CH15PARE.html#PTICOCO_CH15PARE_S15-8PRUSPA).

In the ordinance the county is attempting to regulate the "carry
or possess[ion]" of firearms. This is an invalid and unenforceable
ordinance based on the Code of Virginia's preemption statute 15.2-915
Control of firearms; applicability to authorities and local
governmental agencies
(http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915).

Mr. Haislip stated that he "believe this was addressed in the
last revision of the ordinance." According to the Roanoke County Code
of Ordinances as it appears on the Municode website there has not been
a revision to the aforementioned ordinance since June 2008, or the the
specified item since March 2008. Additionally, I was unable to find
any revisions to this ordinance section in the Board of Supervisors
Agendas with Reports other than those previously mentioned.

Please advise me as to how Roanoke County will correct this situation.

Your attention to this matter is appreciated and I look forward to
your early response.

Sincerely,
(Real Name)
(Address)


Cc:
Mr. Joe Obenshain, Senior Assistant County Attorney
Roanoke County Atorney's Office
5204 Bernard Dr.
Fourth Floor
Roanoke, VA 24018

----------------------------------

I will update when I receive a reply.

 

[doctork]

This is in the "Town of Vinton" codes. Vinton is part of Roanoke County. They added (b) to make Sec. 62-81 correct under the law. Is this written properly or is it still in violation of § 15.2-915? I don't speak legalese so I need to better understand if this needs to be corrected. Thanks for your help.......

ARTICLE V. WEAPONS

Sec. 62-81. Carrying loaded firearms in public places.
(a) It shall be unlawful and a class 1 misdemeanor for any person to carry any loaded firearm in any public place, except on legally open hunting grounds and at authorized target shooting ranges. Upon a conviction of a violation of this section, any such firearm, together with the ammunition intended for use therewith, may, in the discretion of the court trying the case, be forfeited to the town by order duly entered, and may be seized by an officer as forfeited, and such as may be needed for police officers and conservation of the peace shall be devoted to that purpose. The remainder shall be destroyed by the officer having them in charge.
(b) This section shall not apply to any person excepted from the provisions of Code of Virginia, § 18.2-308.
(Code 1982, § 25-2)

 

[Wolf_shadow]

This is in the "Town of Vinton" codes. Vinton is part of Roanoke County. They added (b) to make Sec. 62-81 correct under the law. Is this written properly or is it still in violation of § 15.2-915? I don't speak legalese so I need to better understand if this needs to be corrected. Thanks for your help.......

ARTICLE V. WEAPONS

Sec. 62-81. Carrying loaded firearms in public places.
(a) It shall be unlawful and a class 1 misdemeanor for any person to carry any loaded firearm in any public place, except on legally open hunting grounds and at authorized target shooting ranges. Upon a conviction of a violation of this section, any such firearm, together with the ammunition intended for use therewith, may, in the discretion of the court trying the case, be forfeited to the town by order duly entered, and may be seized by an officer as forfeited, and such as may be needed for police officers and conservation of the peace shall be devoted to that purpose. The remainder shall be destroyed by the officer having them in charge.
(b) This section shall not apply to any person excepted from the provisions of Code of Virginia, § 18.2-308.
(Code 1982, § 25-2)

IANAL but on face value to me appears in violation of 15.2-915 as it looks like they are saying only persons with a CHP can carry which in it self is wrong.

§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.
The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.
C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.
(1987, c. 629, § 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923; 2009, cc. 735, 772.)

 

[TFred]

This is in the "Town of Vinton" codes. Vinton is part of Roanoke County. They added (b) to make Sec. 62-81 correct under the law. Is this written properly or is it still in violation of § 15.2-915? I don't speak legalese so I need to better understand if this needs to be corrected. Thanks for your help.......

ARTICLE V. WEAPONS

Sec. 62-81. Carrying loaded firearms in public places.
(a) It shall be unlawful and a class 1 misdemeanor for any person to carry any loaded firearm in any public place, except on legally open hunting grounds and at authorized target shooting ranges. Upon a conviction of a violation of this section, any such firearm, together with the ammunition intended for use therewith, may, in the discretion of the court trying the case, be forfeited to the town by order duly entered, and may be seized by an officer as forfeited, and such as may be needed for police officers and conservation of the peace shall be devoted to that purpose. The remainder shall be destroyed by the officer having them in charge.
(b) This section shall not apply to any person excepted from the provisions of Code of Virginia, § 18.2-308.
(Code 1982, § 25-2)

IANAL but on face value to me appears in violation of 15.2-915 as it looks like they are saying only persons with a CHP can carry which in it self is wrong.

I'd concur with Wolf, that does very much appear to outlaw Open Carry as we know it. (That is, no CHP required.)

TFred

 

[wylde007]

I'd concur with Wolf, that does very much appear to outlaw Open Carry as we know it. (That is, no CHP required.)

Particularly as Vinton is not a locality specifically referenced in §18.2-287.4 which provides only limited permissions.

Yeah, I read that ordinance as bunk: illegal and unenforceable.

 

[doctork]

I have sent another email to the Town Mayor to get this re-opened. I will get back when I hear from him. Thanks for everyone's help.

 

[Grapeshot]

I'd concur with Wolf, that does very much appear to outlaw Open Carry as we know it. (That is, no CHP required.)

TFred

VCDL would very much appreciate any information on these problems and their resolution should that in fact happen.

A similar effort is under way there, though different locations than mentioned here, to correct unauthorized procedures in acquiring a CHP and/or extra-legal ordinances.

VCDL's strength comes from the number of our members, especially those activists willing to take on and resolve problems/glinchs like this.

Keep up the effort - it is working!

 

[Sesrun]

Received this reply today:
------------------------------------
(Real Name):

Thank you for your inquiry regarding Roanoke County's Ordinance Section 15-8 which governs prohibited uses or conduct in our county's parks. The Virginia Code section 15.2-915 to which you make reference makes specific exception for local ordinances relating to firearms which are expressly authorized by state statute. Roanoke County's ordinance specifically incorporates that provision. Roanoke County makes every effort to insure that our county code is in compliance with the requirements of Virginia law. Thank you again for your inquiry.

Paul M. Mahoney
Roanoke County Attorney

--------------------------------------------

No where did he specifically state what state statute gives a locality authority to regulate possession or carry in a local park. So I sent the following reply:

--------------------------------------------
Mr. Mahoney,

Further clarification is required in order to satisfy my inquiry.
Can you please cite the state statute that you reference which gives
localities the authority to regulate carry or possession of a firearm
in regards to County Section 15-8. The Virginia Code Section 15.2-915
states that unless authorized by another statute a locality may not
have any ordinance "governing the purchase, possession, transfer,
ownership, carrying, storage or transporting of firearms, ammunition,
or components or combination thereof other than those expressly
authorized by statute. "

County Section 15-8 specifically regulates the "carry or
possession" of a firearm. Given that I can find no state statute that
authorizes localities to regulate the carry or possession of firearms
in local parks, a revision of Sec. 15-8 would be needed in order for
the County Code to be in compliance with the Code of Virginia. I
believe the removal of the phrase "carry or possess" would be
sufficient in order to fix the code. If I am mistaken then please
cite the statute which you implied allows this.

Let me know what is being done to correct this situation. Thank you
for your time and assistance.

Respectfully,
(Real Name)
(Address)

------------------------

Maybe I'll get an informed response this time rather than a clever dodge...

 

[jmelvin]

Wow, that guy just does not get it, or he gets it and is trying to blow smoke up your butt. Either way Roanoke County is trying to evade the hand of the General Assembly and Governor. Perhaps a letter to the Commonwealth Attorney for Roanoke County is in order since he oversees the administration of state code in his jurisdiction.

http://www.roanokeva.gov/webmgmt/ywbase61b.nsf/vwContentByKey/N254WPNL995JMNLEN

 

[peter nap]

Wow, that guy just does not get it, or he gets it and is trying to blow smoke up your butt. Either way Roanoke County is trying to evade the hand of the General Assembly and Governor. Perhaps a letter to the Commonwealth Attorney for Roanoke County is in order since he oversees the administration of state code in his jurisdiction.

Is this the rule we're talking about? (I got lost)

(6)
Hunting and firearms. Hunt, trap or pursue wildlife at any time. Trapping may be authorized, by permit, when it is deemed by the director that said activity is in the best interest of public health, safety and/or welfare. No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, as expressly prohibited by statute, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety or any instrument that can be loaded with and fire blank cartridges, or any kind of trapping device. Shooting into park areas from beyond park property boundaries is forbidden. The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity.

If it is, they are using the hunting regs to support it. That does NOT allow them to regulate the carry or possession out of a vehicle or in a moving vehicle or for any purpose other than hunting.


54. It is unlawful to transport, possess, or
carry a loaded rifle or shotgun in any
vehicle on any public street, road or
highway

25. No hunting with firearms of game
species from within 100 yds. of a road

prev | next
§ 15.2-1209.1. Counties may regulate carrying of loaded firearms on public highways.
The governing body of any county is hereby empowered to adopt ordinances making it unlawful for any person to carry or have in his possession, for the purpose of hunting, while on any part of a public highway within such county a loaded firearm when such person is not authorized to hunt on the private property on both sides of the highway along which he is standing or walking; and to provide a penalty for violation of such ordinance not to exceed a fine of $100. The provisions of this section shall not apply to persons carrying loaded firearms in moving vehicles or for purposes other than hunting, or to persons acting at the time in defense of persons or property.
(Code 1950, § 18.1-272; 1975, cc. 14, 15, § 18.2-287; 2004, c. 462; 2007, c. 203.)

 

[jmelvin]

"No person in a park shall:
(6) Hunting and firearms. Hunt, trap or pursue wildlife at any time. Trapping may be authorized, by permit, when it is deemed by the director that said activity is in the best interest of public health, safety and/or welfare. No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, as expressly prohibited by statute, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety or any instrument that can be loaded with and fire blank cartridges, or any kind of trapping device. Shooting into park areas from beyond park property boundaries is forbidden. The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity."

Peter I see the restrictions between hunting and the carrying of firearms as separate restrictions. #6 states that hunting is forbidden at all times with no authorization for hunting. I believe the County has been granted the authority to make this restriction.

#6 also states that the possession of firearms and ammunition is forbidden, while in county parks and has no further discussion. The county has no authority to regulate the possession of firearms and ammuniton, except that they have authority to regulate the possession of loaded long arms in vehicles (maybe on foot?) for purposes of hunting.

 

[peter nap]

"No person in a park shall:
(6) Hunting and firearms. Hunt, trap or pursue wildlife at any time. Trapping may be authorized, by permit, when it is deemed by the director that said activity is in the best interest of public health, safety and/or welfare. No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, as expressly prohibited by statute, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety or any instrument that can be loaded with and fire blank cartridges, or any kind of trapping device. Shooting into park areas from beyond park property boundaries is forbidden. The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity."

Peter I see the restrictions between hunting and the carrying of firearms as separate restrictions. #6 states that hunting is forbidden at all times with no authorization for hunting. I believe the County has been granted the authority to make this restriction.

#6 also states that the possession of firearms and ammunition is forbidden, while in county parks and has no further discussion. The county has no authority to regulate the possession of firearms and ammuniton, except that they have authority to regulate the possession of loaded long arms in vehicles (maybe on foot?) for purposes of hunting.

You're right and that was my point. The hunting and trapping part of the regulation is legal.
The rest that pertains to possession or carrying of a firearm is NOT and the County Attorney is blowing smoke.

I think your second letter may force his hand. If not, I'll give it a try and see numbers count.

 

[Sesrun]

Hopefully my second letter will show him that I don't plan to just go away. No matter what statute he quotes (if he does quote one in a reply) the county will need to revise Sec 15-8, Item 6. In order to be in compliance with state code they must specify the ban of firearms connected to a statement such as "for the purpose of hunting" or remove "carry or possess." The statutes I found in state code are bellow including what I believe they must change to be in compliance with each one as it being their statutory intent.


If he quotes § 15.2-915.2. Regulation of transportation of a loaded rifle or shotgun.
Then they must change "firearms" to "rifle or shotgun."

If he quotes § 15.2-1113 Dangerous, etc., business or employment; transportation of offensive substances; explosive or inflammable substances; fireworks.
Then they must remove "carry or possess" because it only authorizes discharge regulation.

If he quotes § 15.2-1113.1. Prohibiting hunting in certain areas.
Then they must change "hunting & firearms" to "hunting" in order to not be misleading and/or connect a statement of intent such
as "for the purpose of hunting" to the ban of firearms.

If he quotes § 15.2-1209. Prohibiting outdoor shooting of firearms or arrows from bows in certain areas.
Then they must remove "carry or possess" because it only authorizes discharge regulation.

If he quotes § 15.2-1209.1. Counties may regulate carrying of loaded firearms on public highways.
Then they must add a clause "for the purpose of hunting" to the sentence regarding the use, carry, or possession of firearms. Also a statement specifying the crossing of highway with the exceptions listed in the statute.

If he quotes § 15.2-1210. Prohibiting hunting in certain areas.
Then they must add the specification of "for the purpose of hunting."


I will post a reply when and if I receive one.

 

[peter nap]

Hopefully my second letter will show him that I don't plan to just go away. No matter what statute he quotes (if he does quote one in a reply) the county will need to revise Sec 15-8, Item 6. In order to be in compliance with state code they must specify the ban of firearms connected to a statement such as "for the purpose of hunting" or remove "carry or possess." The statutes I found in state code are bellow including what I believe they must change to be in compliance with each one as it being their statutory intent.


If he quotes § 15.2-915.2. Regulation of transportation of a loaded rifle or shotgun.
Then they must change "firearms" to "rifle or shotgun."

If he quotes § 15.2-1113 Dangerous, etc., business or employment; transportation of offensive substances; explosive or inflammable substances; fireworks.
Then they must remove "carry or possess" because it only authorizes discharge regulation.

If he quotes § 15.2-1113.1. Prohibiting hunting in certain areas.
Then they must change "hunting & firearms" to "hunting" in order to not be misleading and/or connect a statement of intent such
as "for the purpose of hunting" to the ban of firearms.

If he quotes § 15.2-1209. Prohibiting outdoor shooting of firearms or arrows from bows in certain areas.
Then they must remove "carry or possess" because it only authorizes discharge regulation.

If he quotes § 15.2-1209.1. Counties may regulate carrying of loaded firearms on public highways.
Then they must add a clause "for the purpose of hunting" to the sentence regarding the use, carry, or possession of firearms. Also a statement specifying the crossing of highway with the exceptions listed in the statute.

If he quotes § 15.2-1210. Prohibiting hunting in certain areas.
Then they must add the specification of "for the purpose of hunting."


I will post a reply when and if I receive one.

Looking forward to it.

 

[Sesrun]

Sent May 17th:

Mr. Mahoney,

I have not received a reply regarding my last correspondence.
Please let me know what is being done to correct the issue in the
Roanoke County Code of Ordinances.

Respectfully,
Real Name
Real Address

No reply was received.


Sent today:

Mr. Mahoney,

My main question: What State Statute expressly authorizes
Roanoke County Ordinance 15-8 Item #6?

It has been greater than three weeks since you last replied to my
inquiry. In our original correspondence you stated that in regards to
Roanoke County's Ordinance Section 15-8 Item #6 that "the Virginia
Code section 15.2-915 to which you make reference makes specific
exception for local ordinances relating to firearms which are
expressly authorized by state statute." I would like to know what
specific state statute it is that you use to justify this County
Ordinance.

To my knowledge there is no such state statute in which case this
ordinance would be invalid according to the Code of Virginia section
15.2-915 paragraph B
(http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915).

Retaining this invalid ordinance within the County Code places
the County vulnerable to a wrongful arrest lawsuit due to a sheriff's
deputy's misunderstanding that the ordinance is still valid. Such a
wrongful arrest would leave the county vulnerable to a lawsuit, which
the county would almost certainly lose, resulting in the county having
to pay what could be significant damages, in addition to the legal
fees of the person filing the suit (see
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915 paragraph
C.). Removing any reference to firearms or specifying firearms "for
the purpose of hunting" within Sec. 15-8 Item #6 would eliminate this
risk to taxpayer dollars. I fail to see any benefit to the county in
retaining the reference to firearms in Sec. 15-8, while, as a Roanoke
County taxpayer, I find the risk to taxpayer dollars posed by not
removing the reference to firearms as unacceptable.

Please let me know what will be done to correct this situation.
I look forward and appreciate your swift reply.

Respectfully,
Real Name
Real Address

Many bits of the letter were borrowed from others on OCDO. Maybe with persistance we can either get this ordinance removed or at least reworded as to not effect OC or CC (unless you're hunting with it ).

 

[peter nap]

Stay on him but don't be surprised if you get no response.
County lawyers have a tendency to play games.

"I'm a lawyer and I say it's legal"...type of thing.

If you get no response, go to the next BOS meeting and take it up with them. Just don't let it drop though. That's what he's counting on.

 

[Grapeshot]

Stay on him but don't be surprised if you get no response.
County lawyers have a tendency to play games.

"I'm a lawyer and I say it's legal"...type of thing.

If you get no response, go to the next BOS meeting and take it up with them. Just don't let it drop though. That's what he's counting on.

Might not a Writ of Mandamus be a viable alternative here?

 

[peter nap]

Might not a Writ of Mandamus be a viable alternative here?

Maybe, but I'd save that for last.