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Thread: Question regarding preemption at gun show.

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    Question regarding preemption at gun show.

    Went to the gun show in Hampton with some stuff to sell (a few AR's, mags, ammo). Didn't feel like waiting in the long line, so just stood on the sidewalk of the convention center with a sign. A Hampton LEO came up to me and told me I had to leave, and couldn't sell stuff there. I told him that I was a private seller, and the city cannot enforce any regulations regarding the sale of firearms, ammunition, or components thereof. I even whipped out a printout of the preemption statute and showed it to him. He called his supervisor in, and he told me the same thing.

    He also demanded my ID. I refused, since I had broken no laws (or so I thought). The supervisor said I needed a "peddlers license" from the city of Hampton in order for my business to sell there. I was quick to inform him that I was, indeed, a private seller, and not a business. He then said that I could either cough up some ID, or argue my case in front of the judge.

    The officer copied down my name, address, and even asked for my phone number. So my question is, would preemption apply here? Were they wrong? Or were they right in that a private seller couldn't sell items there? I asked him what the difference was between what I was doing, and what people do when they go to the "police gun buybacks" to buy guns from people about to turn them in to the police. He said "oh we don't do that here".

    Also, why the heck did he want my phone number? Did he think I was pretty and wanted to call and ask me out on a date or something?

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by mercutio545 View Post
    Went to the gun show in Hampton with some stuff to sell (a few AR's, mags, ammo). Didn't feel like waiting in the long line, so just stood on the sidewalk of the convention center with a sign. A Hampton LEO came up to me and told me I had to leave, and couldn't sell stuff there. I told him that I was a private seller, and the city cannot enforce any regulations regarding the sale of firearms, ammunition, or components thereof. I even whipped out a printout of the preemption statute and showed it to him. He called his supervisor in, and he told me the same thing.

    He also demanded my ID. I refused, since I had broken no laws (or so I thought). The supervisor said I needed a "peddlers license" from the city of Hampton in order for my business to sell there. I was quick to inform him that I was, indeed, a private seller, and not a business. He then said that I could either cough up some ID, or argue my case in front of the judge.

    The officer copied down my name, address, and even asked for my phone number. So my question is, would preemption apply here? Were they wrong? Or were they right in that a private seller couldn't sell items there? I asked him what the difference was between what I was doing, and what people do when they go to the "police gun buybacks" to buy guns from people about to turn them in to the police. He said "oh we don't do that here".

    Also, why the heck did he want my phone number? Did he think I was pretty and wanted to call and ask me out on a date or something?
    Preemption isn't the question.

    Were you a peddler who needed a license. IMO, you were. You had a sign. Had you been just standing there there isn't much they can do.

    Did you have to show ID...no but he could have arrested you. That's always a risk and you need to accept it.

    The thing to have done when cop 1 said you couldn't sell there is said OK and waked away.
    Last edited by peter nap; 01-20-2013 at 06:23 PM.

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    Founder's Club Member - Moderator ed's Avatar
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    were you on PUBLIC or PRIVATE property?
    Carry On.

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    Quote Originally Posted by ed View Post
    were you on PUBLIC or PRIVATE property?
    Public property. The convention center is owned by the city. I had planned on going in eventually, but I was waiting for the line to die down. I wasn't just trolling outside because I was a cheapskate.

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    Quote Originally Posted by peter nap View Post
    Preemption isn't the question.

    Were you a peddler who needed a license. IMO, you were. You had a sign. Had you been just standing there there isn't much they can do.

    Did you have to show ID...no but he could have arrested you. That's always a risk and you need to accept it.

    The thing to have done when cop 1 said you couldn't sell there is said OK and waked away.

    So is this just some gray area then? I am a private seller. Just because I had a sign doesn't change that. I am not in the business of selling firearms and ammo. These were items in my personal collection that I decided to sell. It's not like I was "setting up shop" and yelling out to people. I was standing around. No table, no chair. Just my two feet.

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    Ill give you my take on what happened from a Leo perspective (not a Hampton cop FYI). Many local cities have no soliciting ordinances. Since you were on public property and were soliciting you would need whatever solicitor's license the city requires. Assuming Hampton's solicitor laws are similar to my jurisdiction's, when the officer approached you he had enough RAS to ask you for ID (not for anything firearm related, but for any soliciting violation he observed). You may have only been required to give your name. Anytime I interview someone I ask for a phone number because you never know when you may need to try and contact them, and it's also habit from dealing with victims who will be followed up with a detective. Hope this helps!

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Jon34511 View Post
    Ill give you my take on what happened from a Leo perspective (not a Hampton cop FYI). Many local cities have no soliciting ordinances. Since you were on public property and were soliciting you would need whatever solicitor's license the city requires. Assuming Hampton's solicitor laws are similar to my jurisdiction's, when the officer approached you he had enough RAS to ask you for ID (not for anything firearm related, but for any soliciting violation he observed). You may have only been required to give your name. Anytime I interview someone I ask for a phone number because you never know when you may need to try and contact them, and it's also habit from dealing with victims who will be followed up with a detective. Hope this helps!
    The farther down this line of reasoning one goes, the more it seems to me at least that 15.2-915 supersedes any local ordinances on selling. 15.2-915 specifically protects the sale or transfer of firearms, which seems to be the exact thing that the local ordinance is restricting.

    I am not convinced that an ordinance regulating ALL selling should somehow override 12.2-915 which specifically protects against regulating sales of firearms.

    But IANAL, OR a judge, so it's not me you have to convince.

    TFred

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    Regular Member ProShooter's Avatar
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    Quote Originally Posted by TFred View Post
    The farther down this line of reasoning one goes, the more it seems to me at least that 15.2-915 supersedes any local ordinances on selling. 15.2-915 specifically protects the sale or transfer of firearms, which seems to be the exact thing that the local ordinance is restricting.

    TFred
    Well, not exactly.

    The quote is "governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms"

    Now, the cops didn't say anything to a person who may have been interested in "purchasing" the gun, only the one "selling" the gun. Now, what the law's view of "transferring" is would be interesting....do they mean transferring ownership, or transferring the physical object from one to another. Nothing in there includes the words "sale" or "selling".

    That's of course from my non-lawyer brain.
    Last edited by ProShooter; 01-20-2013 at 08:40 PM.
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    I'm willing to bet a box of .45acp, at current prices, that what was really going on was the gun show promoter has a rule against sales outside the venue. (Sales out there deprive them of an admission ticket price.)

    So, you ask, how can the promoter have the Hampton cop enforce their no outside sales rule if you are standing on public property? Well, let Virginia's Attorney General explain it to you: http://www.oag.state.va.us/Opinions%...09-Greason.pdf .

    Hampton PD empoloyee does not really understand the intricasies ot it, and really does not care. He's told not to allow sales outside the venue. When challenged he reaches in his back pocket, fumbles around until he comes up with something - anything - that sounds like it might get you to go inside or go away.

    Complying with a request for ID is basic - state your name and address. You do not need to shopw any document, unless you are engaged at the time in an activityt that requires you to posses a permit or license to engage in the activity. Hampton does not have an ID ordinance seperate from the state law. http://library.municode.com/index.aspx?clientId=14532

    Sometimes it is wise to commit what is referred to as "sterile carry" - no ID document carried. Leave your DL in your vehicle. If you are not CCing you will not need your CHP, which also requires that you have a government picture ID. ("Government" - not necessarily a Va DL. Normally you cannot get a non-driver photo ID from DMV if you have a valid DL. Veterans can get the special Veteran ID that qualifies for getting discounts offered by retailers/restaurants. There are other "government" IDs that do not have your address on them. Use your brain.)

    Why did you give the LEO your phone number? Just because he wears a badge and asks for/tells you to give it does not mean he has the actual authority to requst/demand it. Do not give a fake number, as lying to the cops is usually a crime. Instead, politely remind him you are not required to provide it to him. - over and over and over until he gets tired of playing that game.

    This is why you carry your voice recorder and why it is turned on. Being able to document that you remained polite and that the cop went from being persistent to being harassing is worth the cost of the recorder many times over.

    stay safe.
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    Quote Originally Posted by skidmark View Post
    I'm willing to bet a box of .45acp, at current prices, that what was really going on was the gun show promoter has a rule against sales outside the venue. (Sales out there deprive them of an admission ticket price.)

    So, you ask, how can the promoter have the Hampton cop enforce their no outside sales rule if you are standing on public property? Well, let Virginia's Attorney General explain it to you: http://www.oag.state.va.us/Opinions%...09-Greason.pdf .

    Hampton PD empoloyee does not really understand the intricasies ot it, and really does not care. He's told not to allow sales outside the venue. When challenged he reaches in his back pocket, fumbles around until he comes up with something - anything - that sounds like it might get you to go inside or go away.

    Complying with a request for ID is basic - state your name and address. You do not need to shopw any document, unless you are engaged at the time in an activityt that requires you to posses a permit or license to engage in the activity. Hampton does not have an ID ordinance seperate from the state law. http://library.municode.com/index.aspx?clientId=14532

    Sometimes it is wise to commit what is referred to as "sterile carry" - no ID document carried. Leave your DL in your vehicle. If you are not CCing you will not need your CHP, which also requires that you have a government picture ID. ("Government" - not necessarily a Va DL. Normally you cannot get a non-driver photo ID from DMV if you have a valid DL. Veterans can get the special Veteran ID that qualifies for getting discounts offered by retailers/restaurants. There are other "government" IDs that do not have your address on them. Use your brain.)

    Why did you give the LEO your phone number? Just because he wears a badge and asks for/tells you to give it does not mean he has the actual authority to requst/demand it. Do not give a fake number, as lying to the cops is usually a crime. Instead, politely remind him you are not required to provide it to him. - over and over and over until he gets tired of playing that game.

    This is why you carry your voice recorder and why it is turned on. Being able to document that you remained polite and that the cop went from being persistent to being harassing is worth the cost of the recorder many times over.

    stay safe.

    I remember hearing about that opinion, thanks for the link. I had assumed it was in regard to the actual venue, not the exterior of it. But in a broad sense, I'd assume one could draw the conclusion that it would include the entire premises, even the parking lot.

    BUT, here's an interesting what-if scenario. What if there was an event going on in the space right next to the gun show, in which the parking lot and common areas were shared. What if the promoter of THAT event said "selling guns and all that jazz is just fine, let capitalism ring free!". So you have one promoter telling the cops "no", and the other telling them "yes". Maybe the Cooch should try to formulate an opinion on that one.

    As far as the phone number thing, the officer threatened me with a citation on the "peddling" deal. He said if I didn't comply, he was going to give it to me. I do not have the time or money to duke it out in court. So yeah, I was coerced.

    I did record the encounter on video with my phone. I watched it, and was polite enough. I even used "sir" and all that good stuff! When he saw himself being recorded, he did let out a snarky "oh very clever of you".

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    Regular Member Esanders2008's Avatar
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    Quote Originally Posted by mercutio545 View Post
    I remember hearing about that opinion, thanks for the link. I had assumed it was in regard to the actual venue, not the exterior of it. But in a broad sense, I'd assume one could draw the conclusion that it would include the entire premises, even the parking lot.

    BUT, here's an interesting what-if scenario. What if there was an event going on in the space right next to the gun show, in which the parking lot and common areas were shared. What if the promoter of THAT event said "selling guns and all that jazz is just fine, let capitalism ring free!". So you have one promoter telling the cops "no", and the other telling them "yes". Maybe the Cooch should try to formulate an opinion on that one.

    As far as the phone number thing, the officer threatened me with a citation on the "peddling" deal. He said if I didn't comply, he was going to give it to me. I do not have the time or money to duke it out in court. So yeah, I was coerced.

    I did record the encounter on video with my phone. I watched it, and was polite enough. I even used "sir" and all that good stuff! When he saw himself being recorded, he did let out a snarky "oh very clever of you".
    I would file a complaint for malfeasance. Any time an officer says, "Do this or I'll have to give you the ticket", or "My Sgt would insist I give you a ticket, but I'm going to let you slide.", etc, usually, it is because you aren't actually breaking the law.

    Also:

    Sec. 18.1-130. - Definition; application generally.

    (a)
    Peddler. For purposes of this section, any person who shall carry from place to place any goods, wares or merchandise and offer to sell or barter the same, or actually sell or barter the same in this city shall be deemed to be a peddler. All persons who do not keep a regular place of business, whether it be a house or a vacant lot or elsewhere, with regular business hours, and at the same place who shall offer for sale goods, wares and merchandise in this city shall be deemed peddlers under this division. All persons who keep a regular place of business open at all times with regular business hours at the same place in the city, who shall, elsewhere than at such regular place of business, personally or through their agents, in an isolated transaction, offer for sale or sell and, at the time of such offering for sale, deliver goods, wares or merchandise shall request permission, in writing, from the commissioner of the revenue to include those receipts with the gross receipts reported on their regular business license, without procuring a peddler's license.
    (b)
    Itinerant merchant. For purposes of this section, any person who engages in, does, or transacts any temporary or transient business and who, for the purpose of carrying on such business, occupies any location for a period of less than one (1) year shall be deemed to be an itinerant merchant.
    (c)
    Show and sale. For purposes of this section, the term "show and sale" means a show, consisting of a group of persons or merchants, to stimulate the sale of specific classes of goods, wares, and merchandise. Any person or entity who promotes, sponsors or conducts a show and sale within the city shall obtain an itinerant merchant's license, provided no single show and sale at the same location shall continue for a period exceeding seven (7) days. A license issued to a sponsor under this subsection shall be in lieu of individual itinerant merchant's licenses otherwise required for each merchant participating in the show and sale. Each person who obtains such license shall be required to report to the commissioner of the revenue and provide a list of participants prior to each event
    Last edited by Esanders2008; 01-20-2013 at 11:15 PM.
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    Regular Member ProShooter's Avatar
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    Quote Originally Posted by skidmark View Post

    Why did you give the LEO your phone number?
    Maybe he wanted to meet him later for coffee?
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    Regular Member Thundar's Avatar
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    Quote Originally Posted by Jon34511 View Post
    Ill give you my take on what happened from a Leo perspective (not a Hampton cop FYI). Many local cities have no soliciting ordinances. Since you were on public property and were soliciting you would need whatever solicitor's license the city requires. Assuming Hampton's solicitor laws are similar to my jurisdiction's, when the officer approached you he had enough RAS to ask you for ID (not for anything firearm related, but for any soliciting violation he observed). You may have only been required to give your name. Anytime I interview someone I ask for a phone number because you never know when you may need to try and contact them, and it's also habit from dealing with victims who will be followed up with a detective. Hope this helps!
    Virginia does not have a stop and identify law. Certain cities and counties in the commonwealth ave stop and identify laws. Hampton is not amongst those cities and counties. Therefore your statement about "having enough RAS to ask for ID" is nonsense.

    BTW I was at the Gun show on Sunday; large crowds and alot of empty (sold out) tables.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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    Quote Originally Posted by Thundar View Post
    Virginia does not have a stop and identify law. Certain cities and counties in the commonwealth ave stop and identify laws. Hampton is not amongst those cities and counties. Therefore your statement about "having enough RAS to ask for ID" is nonsense.

    BTW I was at the Gun show on Sunday; large crowds and alot of empty (sold out) tables.
    I stated I wasn't a Hampton Leo. My jurisdiction does have a stop and identify ordinance.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Jon34511 View Post
    I stated I wasn't a Hampton Leo. My jurisdiction does have a stop and identify ordinance.
    Unless I am mistaken, all such local ordinances, including Virginia Beach, have a stipulation added to their Stop and Identify ordinance.

    For Virginia Beach it reads:

    Sec. 23-7.1. - Providing identification to police officer.permanent link to this piece of content

    It shall be unlawful and a Class 1 misdemeanor for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, or to provide false information in response to such a request, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.

    Of course, we all know this is meaningless in reality because LEOs can fabricate a circumstance that will easily convince any judge that it was necessary.

    TFred

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    § 58.1-3717. Peddlers; itinerant merchants.

    A. For the purpose of license taxation pursuant to § 58.1-3703, any person who shall carry from place to place any goods, wares or merchandise and offer to sell or barter the same, or actually sell or barter the same, shall be deemed to be a peddler.
    B. ...
    Since you're not in business (you'd have to have an FFL to do that, anyway) and you're selling your own personal property that you do not transport from place to place for the purpose of sale (e.g., a door to door salesman), you're exempt from any peddler's license tax.

    Since the statute prohibits the locality from enforcing any policy governing the transfer of firearms (which is what you were attempting to do), you'll have to show that they at least have an informal policy that made them behave that way on that particular day. I'd say that two or more similar incidents particularly if they're by different cops, is evidence of a policy.

    Get that evidence and you can sue under 15.2-915 and recover attorneys' fees and costs.
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    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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