Cary NC Open Carry

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Mike wrote:

Cary, NC has a statute that uis preempted by state statute and state Const. law ruling - hire a lawyer and file a civil action to have the ordaince delcared invalid.

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Mike, since I'm a North Carolina resident nowI would have standing to do just that. Do you think it could be done for $10,000 or less TOTAL, legal fees and everything ?

We could probably raise that pretty easily.

Any gun rights attorney down here you would recommend ?

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This is an interesting/good idea. Unfortunately, I have no idea about the cost or feasability of it.

V ..... Nice. That sounds quite feasible indeed!

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jack wrote:

Mike wrote:

Cary, NC has a statute that uis preempted by state statute and state Const. law ruling - hire a lawyer and file a civil action to have the ordaince delcared invalid.

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Mike, since I'm a North Carolina resident nowI would have standing to do just that. Do you think it could be done for $10,000 or less TOTAL, legal fees and everything ?

We could probably raise that pretty easily.

Any gun rights attorney down here you would recommend ?

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I think is likley that legal fees could run less than $10K - I have an estamte from one prominent attonrey in Virginia to file a similar action for $4-6K.

Start poking around lawyers familiar with state law practice in Cary, NC area, go thru state bar, etc. Obviously, it will save you time and money if you FIRST do some legal research yourslef and get all your docs lined up so you don;t have to pay the lawyer $200+ per hour to do somthing you can do online with a little time. Print out aone page statement of what you want done - nice neat packet - enclosure 1 - email threatening you with arrest. Enclosure 2 - copu of Cary ordiance - enclosure 3 copy of state presmption statute - enclosure 4 - copy of the 2-3 state const. cases outlining the right to open carry without any permit.

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Thank you Mike. I think this is really do able financially. I could probably raise the funds with a few calls to folks thatI do business with, and fromwithin my industry group.

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jack wrote:

Thank you Mike. I think this is really do able financially. I could probably raise the funds with a few calls to folks thatI do business with, and fromwithin my industry group.

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This action must be filed in state court to claim state statutory and constitutional claimes; however, as their are potential federal claims, you might want to bring in state court as an additional cause of action 42 USC 1983 which allows for attonreys fees if you prevail via 42 USC 1988 - not a sure thing, but might be worth trying. also, you could ask the NRA Civil Rights Defense Fund for funding to enforce state statutory preemption and const. claims.

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Cary has a new police chief as of a month ago:
http://www.nbc17.com/midatlantic/ncn/news.apx.-content-articles-NCN-2008-02-13-0023.html

I wonder what her attitude is on open carry.

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Has anyone followed up on this?

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Okay, I'm new to this forum. Live in Cary and interested in this issue. I know that Cary can't preempt the concealed carry law, but on another section of this board I see language that appears to make it legal for the city to restrict open carry:

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Complete state preemption of firearms laws except localities may regulate the possession of firearms:

• In public-owned buildings
• On the grounds or parking areas of those buildings
• In public parks or recreation areas

Additionally, under NC Code Chapter 14 § 160A.189, a city may by ordinance ... regulate the display of firearms on the streets, sidewalks, alleys, or other public property.

While the word "display" does not appear to be defined in the Code, some localities in NC have adopted, or are considering adopting ordinances like the city of Chapel Hill's which restrict the open carry of handguns.

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Doesn't the part above saying a city can regulate the display of firearms on streets, sidewalks, alleys or other public property prevent someone from open carry except on their own property?

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I too live in Cary, and I'm very curious about this. I'm a little hesitant to open carry in Cary. Does anyone have any advice?

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Doesn't the part above saying a city can regulate the display of firearms on streets, sidewalks, alleys or other public property prevent someone from open carry except on their own property?

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No it does not, but if you asked cary police, they would likely say it does. Note that wake county and NC in general have no restrictions on open carry other than what you linked. What you linked actually covers quite a small number of locations and does not include the sidewalk at any old place within the city. Cary is breaking the law when they "enforce" their own rules that aren't even on the books, but they've clearly stated their intention to do so in the past.

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whoops double post

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I would not OC in Cary yet; it is against the law in the town and is not preempted by state law.



From their town ordinances - I know a portion of this, (d) was posted earlier. However, Cary will go out of its way to make sure you get caught with this law, so how "public" is defined, or even loosely defined will probably get you in trouble. I'd be glad to pitch in what little I can if someone would like to challenge this, but for the time being, it is definitely illegal within city limits.

Sec. 22-51. Prohibition of the carrying and display of firearms and other weapons at certain public locations.

(a)Firearms generally. No person shall possess firearms in town-owned buildings, on the grounds or parking areas of those buildings, or in town parks or recreation areas, including greenways, except nothing in this section shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas.

(b)Posting required. The director of public works or his designated representative is hereby authorized and instructed to post conspicuous signage at appropriate locations on or within each park, including greenways, and each building or portion of a building owned, leased as lessee, operated, occupied, managed or controlled by the town, as well as the appurtenant premises to such buildings, indicating that carrying a concealed handgun or possessing or displaying any firearm or any other deadly weapon, as defined in G.S. § 14-269(a), on the properties and locations described in this section is prohibited therein and thereon unless specifically permitted or authorized by state law or the provisions of the town's code of ordinances.

(c)Location. Signs on buildings shall be visibly posted on the exterior of each entrance by which the general public can access the building. The director of public works or his designated representative shall exercise discretion in determining the number and appropriate location of signs to be placed on or within appurtenant premises and parks, including town greenways.

(d)Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. § 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law.

(e)Exceptions. The following exceptions to the provisions of this section are authorized:

(1)The chief of police, or designee, has authorized the public possession or display of a firearm, or other weapon, as part of an official program or event sponsored or sanctioned by the town;

(2)The possession or display of the firearm, or other weapon, was the result of an individual(s) exercising his legitimate right to self defense or the defense of others as allowed by law;

(3)The possession or display of the firearm, or other weapon, was conducted by a person(s) authorized by law to carry and display such items as part of their official or otherwise recognized lawful duties (e.g., law enforcement officers, military personnel, security guards, etc.); or

(4)The possession or display of the firearm, or other weapon, was necessary for the temporary transport and securing of the item and was not otherwise in violation of existing statutes or ordinances (e.g., recent purchase and movement to vehicle for transport, securing of firearm by CCH permit holder in vehicle, found item to be turned in to authorities, firearm in approved vehicle gun rack, etc.).

(f)Violation. The carrying of concealed handguns or the possession or display of any firearm or other dangerous weapon as defined in this section, in or upon any of the locations specified by this section, shall constitute a misdemeanor and subject any violator(s) so convicted to such penalties as may be imposed by the court.

(Code 1982, § 13-9.1; Ord. No. 95-031, 12-14-1995; Ord. No. 01-010, 5-24-2001; Ord. No. 06-010, 6-22-2006)

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It's not preempted by the state?

For some reason I thought it was. It seems to me that this law is not legal, but hey, maybe I'm wrong.

(d) Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. § 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law.

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I also question the word "display," and maybe that's how this was able to slip in there. Of course they'll interpret OC as display because they love to create criminals in Cary (The seem to have nothing better to do), but I don't think it means OC. I believe this because they clearly make a distinction between possession and display in other articles of that same city ordinance. It seems to me that possession is OC, display is holding it in your hand outside of a holster.

At the same time, I fully believe they intend to be able to use it as a scare tactic to prevent you from OCing in the first place and to use against you in what I see as an illegal way.

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Open carry in Cary is not illegal. I do it on a weekly basis and have been for months. The town of Cary can't regulate firearms except on town owned property.

They attempt to confuse public v. private property. When I sit down in a town hall I'm in public property (that they can regulate) , when I sit down in a local restaurant I'mactually on private property that is open for public use, big difference. Walking down the street openly armed in Cary will not result in a conviction. You may get arrested, so what. You wouldn't even need a lawyer to beat that charge it's a no brainer. Eventually I may get arrested in Cary for open carry, and the town of Cary and it's officer will be sued. That may be what we need to happen.

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Posted this under the wrong topic earlier

Ok, I have been following this thread for awhile and since it has been opened, I have open carried in Cary at least three times. One time was actually approached by an officer and asked which weapon I was carrying and why I chose that carry that particular one.

I was carrying my Springfield XD40 at the time. All in all, a good encounter. I inquired about the statement the Sheriff made, and admittedly he confirmed that is what the Sheriff stated. I was informed however, that even though he never publically retracted the statement, it was brought to his attention that it could only be done on city property.

Now, Cary does have a lot of sidewalks that are city property, but carrying in shopping centers, parking lots, certain restaurants, and other normal private places is completely legal.

Possibly why this Sheriff was or will be getting replaced.

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Well reading this I would be inclined to think that even though I don't jog or live in Cary anymore, Open Carry could have possibly savedher in this situation. If this turns out to be an actual homicide, I will be shocked. Cary was known as probably still is one of the safest cities to live in. Let's see how this case turns out.

http://news14.com/content/top_stories/597397/jogger-s-body-found--murder-suspected/Default.aspx

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The chief of police says "there's no threat to the public." What's sad is, that's good enough for most people in Cary. They want to hand their lives to the police and let them handle that "issue." It's insane to think that she probably stood there and got held up and then executed. As terrible as it is, I really wonder if the thought "I wish I had a gun" went through her mind?

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"I emailed the police cheif in cary and they informed me that open carry was not allowed and would be considered "going armed to the terror of the public" that is what I got from it, just courious what ya'll think. From what I have read this is not true and they can not make a law the supeseades a stat law.

Looking for input.


Thanks



Last edited on Wed Jan 23rd, 2008 12:50 pm by Jdogg"



Unfortunately the police chief is correct. I just checked the town of Cary’s web site and under their town ordnances they do prohibit the carry of handguns. There are the obvious exceptions; LE officer, CCW holder, military etc… The town of Cary sites a NC general statue which I will copy and paste so everyone can read.

On a personal note… I have worked in the town on Cary for well over a decade, in that time I have always carried a firearm. About 7 years ago I applied for and received a CCW. At no time have I ever had a problem. But…. I never carried my gun openly. With what I know of the Cary police I would not recommend for anyone to Cary openly in the town of Cary unless you are just looking for trouble.

So you don’t have to read the entire section I highlighted and italicized what I felt to be the important parts.





[align=center]Cary City Ordinance[/align]
Sec. 22-51. Prohibition of the carrying and display of firearms and other weapons at certain public locations.

(a) Firearms generally. No person shall possess firearms in town-owned buildings, on the grounds or parking areas of those buildings, or in town parks or recreation areas, including greenways, except nothing in this section shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas.

(b) Posting required. The director of public works or his designated representative is hereby authorized and instructed to post conspicuous signage at appropriate locations on or within each park, including greenways, and each building or portion of a building owned, leased as lessee, operated, occupied, managed or controlled by the town, as well as the appurtenant premises to such buildings, indicating that carrying a concealed handgun or possessing or displaying any firearm or any other deadly weapon, as defined in G.S. § 14-269(a), on the properties and locations described in this section is prohibited therein and thereon unless specifically permitted or authorized by state law or the provisions of the town's code of ordinances.

(c) Location. Signs on buildings shall be visibly posted on the exterior of each entrance by which the general public can access the building. The director of public works or his designated representative shall exercise discretion in determining the number and appropriate location of signs to be placed on or within appurtenant premises and parks, including town greenways.

(d) Applicability to other public locations. No person shall display any firearm or other deadly weapon as defined in G.S. § 14-269(a) while on any public street, alley, sidewalk or other public property within the town unless specifically permitted or authorized by law.

(e) Exceptions. The following exceptions to the provisions of this section are authorized:

(1) The chief of police, or designee, has authorized the public possession or display of a firearm, or other weapon, as part of an official program or event sponsored or sanctioned by the town;

(2) The possession or display of the firearm, or other weapon, was the result of an individual(s) exercising his legitimate right to self defense or the defense of others as allowed by law;

(3) The possession or display of the firearm, or other weapon, was conducted by a person(s) authorized by law to carry and display such items as part of their official or otherwise recognized lawful duties (e.g., law enforcement officers, military personnel, security guards, etc.); or

(4) The possession or display of the firearm, or other weapon, was necessary for the temporary transport and securing of the item and was not otherwise in violation of existing statutes or ordinances (e.g., recent purchase and movement to vehicle for transport, securing of firearm by CCH permit holder in vehicle, found item to be turned in to authorities, firearm in approved vehicle gun rack, etc.).

(f) Violation. The carrying of concealed handguns or the possession or display of any firearm or other dangerous weapon as defined in this section, in or upon any of the locations specified by this section, shall constitute a misdemeanor and subject any violator(s) so convicted to such penalties as may be imposed by the court.

(Code 1982, § 13-9.1; Ord. No. 95-031, 12-14-1995; Ord. No. 01-010, 5-24-2001; Ord. No. 06-010, 6-22-2006)

State law references: Local regulation of firearms, G.S. 14-409.40.



[align=center]NC General Statue[/align]
§ 14-409.40. Statewide uniformity of local regulation.

(a) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, statewide concern, and that the entire field of regulation of firearms is preempted from regulation by local governments except as provided by this section.

(a1) The General Assembly further declares that the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public is not an unreasonably dangerous activity and does not constitute a nuisance per se and furthermore, that it is the unlawful use of firearms and ammunition, rather than their lawful design, marketing, manufacture, distribution, sale, or transfer that is the proximate cause of injuries arising from their unlawful use. This subsection applies only to causes of action brought under subsection (g) of this section.

(b) Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts.

(c) Notwithstanding subsection (b) of this section, a county or municipality, by zoning or other ordinance, may regulate or prohibit the sale of firearms at a location only if there is a lawful, general, similar regulation or prohibition of commercial activities at that location. Nothing in this subsection shall restrict the right of a county or municipality to adopt a general zoning plan that prohibits any commercial activity within a fixed distance of a school or other educational institution except with a special use permit issued for a commercial activity found not to pose a danger to the health, safety, or general welfare of persons attending the school or educational institution within the fixed distance.

(d) No county or municipality, by zoning or other ordinance, shall regulate in any manner firearms shows with regulations more stringent than those applying to shows of other types of items.

(e) A county or municipality may regulate the transport, carrying, or possession of firearms by employees of the local unit of government in the course of their employment with that local unit of government.

(f) Nothing contained in this section prohibits municipalities or counties from application of their authority under G.S. 153A-129, 160A-189, 14-269, 14-269.2, 14-269.3, 14-269.4, 14-277.2, 14-415.11, 14-415.23, including prohibiting the possession of firearms in public-owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas, except nothing in this subsection shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas. Nothing contained in this section prohibits municipalities or counties from exercising powers provided by law in declared states of emergency under Article 36A of this Chapter.

(g) The authority to bring suit and the right to recover against any firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association by or on behalf of any governmental unit, created by or pursuant to an act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, injunctive relief, or any other remedy resulting from or relating to the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public is reserved exclusively to the State. Any action brought by the State pursuant to this section shall be brought by the Attorney General on behalf of the State. This section shall not prohibit a political subdivision or local governmental unit from bringing an action against a firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association for breach of contract or warranty for defect of materials or workmanship as to firearms or ammunition purchased by the political subdivision or local governmental unit. (1995 (Reg. Sess., 1996), c. 727, s. 1; 2002-77, s. 1.)

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The statutes that you stated does not allow for the Police Chief to prohibit open carry. Also, no matter what the Police Chief states, there is no way to get convicted of "Going to the terror of the public" unless you meet 4 specific conditions. This has been discussed on this forum as much as the Wal-mart issue. Since this is a State ordinance, they cannot supercede these conditions.

I have open carried in Cary quite often, and have never had a problem with Cary officers, and have been seen by them carrying. The important part of the regulation is public property. That would include most streets, and sidewalks in Cary, however, according to the email I received from the Sheriff, and a conversation that I had with one of the deputies, stores and parking lots, of shopping centers are considered private property and therefore outside of the cities jurisdiction as far as open carry policies.

I am not one speaking from heresay, I practice open carry whenever I am in Cary and ensure that I conceal anywhere that I legally can that would be considered public property. All in all, they are a part of NC, whether they want to admit it or not and they cannot ban open carry, only regulate it. The Wake County magistrate will throw out any attempts to do so everytime.

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That's exactly what I was going to say acritical. All the NC statute says is that Cary may regulate the carry of weapons on the grounds of Public buildings, which are few and far between. It certainly doesn't give them the right to regulate open carry on any sidewalk in the city. Now, clearly the city of Cary has no respect for the state of NC's laws and thinks it's above them. All that has to happen is someone will have to be taken in for OC and fight it. Or it's possible that someone with a lot of money (Or an organization) can take them on in court over the law.

Cary is in fact breaking the law by having that law on the books. It's pretty much a trap, because if you've read the NC laws and understand them, you could still be arrested when you go into Cary OCing. That is BS and if every city in the state were allowed to make random laws like that it would be a big problem. The only thing they're really allowed to do (Other than the public buildings thing, which I would always assume is going to be like that in every city) is regulate a minimum size of the pistol that you OC. For example, in Chapel Hill I believe it must be a minimum of 6" in length.


The first law you posted said they could regulate city employees, not citizens. Read the second law you posted again man:

(f) Nothing contained in this section prohibits municipalities or counties from application of their authority under G.S. 153A-129, 160A-189, 14-269, 14-269.2, 14-269.3, 14-269.4, 14-277.2, 14-415.11, 14-415.23, including prohibiting the possession of firearms in public-owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas, except nothing in this subsection shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas.

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