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LOW2000
12-31-2008, 5:21 PM
Would this qualify as my city preempting state law by banning carry of firearms in city parks?

If so, how would I go about getting this removed from the books?

This is a cut and past from my similar question on OCDO.


I was reading my city Muni Code and came across this, should I interpret it to be any large grassy area? There are several "parks" in my city that are maintained by the local association for which I pay my dues that AFAIK are not city property, but i'd rather not misinterpret this the wrong way which would result in real trouble for me.





12.04.100 Prohibition of firearms, fireworks and toy weapons.
No person shall carry or discharge firearms, firecrackers, rockets, torpedoes or other types of explosives, or carry or discharge any gun, or pistol, or any sling shot or similar device, or any bows and arrows, or any other object capable of propelling a projectile, or carry or use any object calculated to make a noise sufficient to disturb the peace or quiet of the park, or bring into any park any of the above objects or articles. Fireworks may be permitted for special events only with formal approval from the community services commission and the fire department. (Ord. 93-19 § 11)

Shotgun Man
12-31-2008, 6:06 PM
Would this qualify as my city preempting state law by banning carry of firearms in city parks?

If so, how would I go about getting this removed from the books?

This is a cut and past from my similar question on OCDO.

The simplest way is to get prosecuted under the offending statute. Go get arrested.

Alternatively, you can try to do it like Heller et al and get standing on the idea that you want to carry a firearm in the park, kinda like what the Brady Bunch is doing now with the National Parks concealable weapon rule change. You might be denied standing.

It would be a lot of work. Probably the "right people" would advise against it as you might muck it up for the rest of us.

LOW2000
12-31-2008, 10:47 PM
It seems like there should be an administrative way to have these laws removed, they were put into place administratively, they should be able to be removed in the same manner.

Liberty1
01-01-2009, 8:19 PM
That local law is unenforceable IMO. But I would not advise violating it yet unless you have the $$$$ to defend a charge and then money for a USC 42 sec 1983 civil rights suit to follow that up with a little spanking of your local officials.

However, feel free to write to them and point out that it is unenforceable and ask that it be repealed to prevent false arrests and liability.

This may be of some help on the concept of state preemption:

http://www.hoffmang.com/firearms/carry/CPOA-Client-Alert-12042008.pdf

From the California Police Officer's Association's attorney's memo on California open carry:

Furthermore, we doubt that a local ordinance could be enacted to close this gap by, for instance, making it a violation of a city’s municipal code to carry an unloaded and unconcealed firearm in public. In this regard, please note Article XI, §7 of the California Constitution, which provides that:

A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.

The California Supreme Court has identified three types of conflict that cause preemption of local legislation: A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. Local legislation is contradictory to general law when it is inimical thereto. A local ordinance is preempted by a state statute only to the extent that the two conflict. Action Apartment Assn., Inc. v. City of Santa Monica, (2007) 41 Cal. 4th 1232. For a local ordinance to proscribe that which is allowed under State law would perforce be to contradict state law. Furthermore, given the extent of State regulation of dangerous weapons, it would seem apparent that the State has “fully occupied” this area by its general laws.

LOW2000
01-02-2009, 5:17 PM
Thank you L1, i'll draft something up and hopefully mail or present it at the city council meeting depending on what their rules dictate.

FreedomIsNotFree
01-02-2009, 5:50 PM
Thank you L1, i'll draft something up and hopefully mail or present it at the city council meeting depending on what their rules dictate.

If you are going to mail anything to any government, or related, body be sure to send it USPS certified mail with return receipt. If I were you I would mail the draft to them and include your intentions of showing up at a specific meeting to address the issue.