Durham, NC City Ordinances

[dmatting]

There was a discussion in the 'NC OC Experience Reports' thread regarding ordinances that were in effect in the city of Durham. I wrote an email to the Durham city attorney, Patrick W. Baker, and expressed my concerns regarding some of the ordinances dealing with the carry of firearms in the city. He wrote back and informed me that municode.com - the location where I got my information on the ordinances - appears to be out of date. It seems that the city council had repealed a number of the ordinances because they were not in line with the preemption allowances given them by the state and these repeals were made to conform with state law. Durham city ordinances 46-23, 46-24, 46-25, 46-26, and 46-27 were all repealed in their entirety. These repealed ordinances dealt with prohibition of firearms at polling places, while under the influence of drugs/alcohol, on public transportation, and at street fairs and other special events. The most onerous ordinance that was repealed was an attempt to prohibit the carry of firearms at any public place. So all of these ordinances were repealed - which is good.

The main problem that is still lingering is with Durham City ordinance 46-22. This ordinance prohibits the display of firearms (the wording is actually dangerous weapons which includes firearms) on all city owned and leased property - this includes streets and sidewalks. In my email, I urged the attorney to recommend to the city council that this ordinance be modified to conform to both state law and NC Supreme Court rulings. In particular State V Kerner, which says that only the only allowable regulation for the carry of a handgun, aside from regulating concealed carry, would be to regulate the size of the handgun. I gave two quotes from the ruling...

"The Constitution of this state, section 24, art. 1, which is entitled, 'Declaration of Rights,' provides, 'The right of the people to keep and bear arms shall not be infringed,' adding, 'nothing herein contained shall justify the practice of carrying concealed weapons or prevent the Legislature from enacting penal statutes against said practice.' This exception indicates the extent to which the right of the people to bear arms can be restricted; that is, the Legislature can prohibit the carrying of concealed weapons but no further."

And

"It is also but a reasonable regulation, and one which has been adopted in some of the states, to require that a pistol shall not be under a certain length, which if reasonable will prevent the use of pistols of small size which are not borne as arms but which are easily and ordinarily carried concealed."

Mr Baker did not agree with me and stated the following:

[...]
I do not concur with your assertion that Kerner stands for the proposition that municipalities are limited to only regulating the size of the displayed handgun. I would cite you to State v. Dawson 272 NC 535 (1968). The Dawson court specifically referenced and endorsed the language of the concurring opinion of Kerner by J. Allen which said, “The right to bear arms, which is protected and safeguarded by the federal and state constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate; but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.” The City’s current ordinances are authorized by and consistent with N.C.G.S. 160A-189, 14-409.40, and 14-415.23, and I believe that they would be found to be a reasonable restriction. They do not prohibit all possession of firearms on City owned property, and they in no way restrict a person’s ability to carry in non-city owned areas. Moreover, given the population density of modern NC as compared to the 1921 NC when Kerner was decided would add much greater weight to its reasonableness.

For those without Google-Fu, here is a link to the text of the Dawson ruling...
http://www.constitution.org/2ll/bardwell/state_v_dawson.txt

It's a long one. Here is the paragraph that includes the quote that Mr. Baker used in his response to me.

In State v. Kerner, 181 N.C. 571 (1921), it was held that a
public-local law which prohibited one from carrying a pistol off
his premises in Forsyth County without a permit (even though the
pistol was not concealed) was unconstitutional. In the opinion,
however, Clark, C. J., was careful to point out that an
individual's constitutional right to bear arms was subject to
reasonable regulation. He said: "It would also be a reasonable
regulation, and not an infringement of the right to bear arms to
prohibit the carrying of deadly weapons when under the influence of
intoxicating drink, or to a church, polling place, or public
assembly, or in a manner calculated to inspire terror, which was
forbidden at common law. These from a practical standpoint are mere
regulations, and would not infringe upon the object of the
constitutional guarantee, which is to preserve to the people the
right to acquire and retain a practical knowledge of the use of
firearms." Id. 181 N.C. at 578. In a concurring opinion, Allen, J.,
and Stacy, J. (later C. J.), pointed out that to require a person
to secure a permit before taking his gun off his premises--
particularly in an emergency--was an unreasonable regulation. They
said: "The right to bear arms, which is protected and safeguarded
by the Federal and State constitutions, is subject to the authority
of the General Assembly, in the exercise of the police power, to
regulate; but the regulation must be reasonable and not
prohibitive, and must bear a fair relation to the preservation of
the public peace and safety." Id. at 579.

Mr. Baker included some memos in his email, also. This memo is from 2013 and deals with the repeal of the aforementioned ordinances...
https://drive.google.com/file/d/0B9SbdmEOcqRTN0l0V2NlZkgtc1E/edit?usp=sharing
And this is the attachment which shows the ordinances that were voted on:
https://drive.google.com/file/d/0B9SbdmEOcqRTQkNBTVREbDAyRlE/edit?usp=sharing

Then, this year, they had to ammend 46-22 to conform to state law again (from the October 2013 changes) - this mainly deals with CC, though...
Memo:
https://drive.google.com/file/d/0B9SbdmEOcqRTUjdhSUdwMzJZRkE/edit?usp=sharing
Ordinance:
https://drive.google.com/file/d/0B9SbdmEOcqRTX0tMazlGZVZUd28/edit?usp=sharing

So, I'm no legal eagle and I doubt that the city attorney is going to change his viewpoint based on correspondence with me. I don't see how it can hurt to try, though...

I obviously don't agree with him and don't see how anything mentioned in Dawson negates anything in Kerner. Like I said, though, I'm not a lawyer and don't speak the lingo.

I'd like to hear your LEGAL opinions on this. And don't take this statement the wrong way, but I'm pretty sure I know where most of you stand on this issue, so I'm not really looking for your personal opinions. I'm looking for some well thought out legal arguments that I can put up to the city attorney and see how he responds.

I appreciate your help on this. This ordinance affects me directly and can affect you as well if you ever come into the city. If this stupid ordinance can get amended to improve our open carry rights, everyone wins.

 

[drsysadmin]

Ok - first off I would suggest you not get TOO deep in the weeds trying to convince this guy. First, it won't happen, and second - were it ever to go to court you always want a few cites in your back pocket to bolster your argument that the other guy hasn't seen and prepared for.....

Next, he is correct regarding Kerner relating to more than just weapons being carried concealed.

However, here is some "food for thought" - just using his own citations against him. I could go digging, and there are a LOT more challenges that could be raised (I raise 2or 3 here).... Hope this helps...
And for the record - I am NOT a lawyer.



Mr. Baker,

Thank you for your reply regarding DCo 46-22. In examining your position based upon the cites provided, I must respectfully disagree with your reading of the decisions due to the following:

In State v Kerner, the Court clearly ruled that regulation of concealed carry falls under the purview of the NC General Assembly. While it does provide for the General Assembly to reasonably regulate carry in accordance with common law standards, nothing in Kerner provides any Municipality the authority to regulate or prohibit the right to carry openly. The Court clearly vests that authority solely with the General Assembly, and the ability to delegate that authority to a Municipality is questionable at best, as the matter is one of State and not local authority. It would be no different than the General Assembly adopting a statute that allows for a Municipality to prohibit or regulate free speech within its boundaries, in violation of the Declaration of Rights, Article 1, sec. 14 of the North Carolina Constitution. It is unlikely that the Court would allow such a statute to stand - and thus the constitutionality of N.C.G.S. 160A-189 is reasonably in question.

Even if we accept that N.C.G.S. 160A-189 passes constitutional muster, the Statute clearly allows prohibition on the DISCHARGE of a firearm only. The Statute states clearly that the Municipality may regulate the display of firearms. At no point does the Statute confer authority to a Municipality to prohibit the open carry of a firearm in any way. Utilizing your own citation, State v Dawson - I would refer you to the following (emphasis added):

"The right to bear arms, which is protected and safeguarded by the Federal and State constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate; but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety." Id. at 579.

Per DCo 46-22, a citizen is prohibited (not regulated) from openly carrying a firearm on city property. Not only does Dawson reinforce that such a prohibition is unconstitutional, but makes it clear that the Court sees clearly the difference between a prohibition of a right and the regulation of a right. If bearing arms on city property can not in any way be done lawfully, then the right is not regulated, but prohibited.

There are multiple other challenges that could be lodged against DCo 46-22 with what I surmise would be a high likelihood of success. However, it is my hope that you will carefully reconsider my request to advise the Council to modify its ordinance, so that such challenges are not needed.

 

[dmatting]

Thanks for the response. I wrote my post and then went down to Myrtle Beach for a few days. I'll be crafting a new response to the attorney this week.