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Thread: Martinsburg has ILLEGAL city property gun ban

  1. #1
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    The City of Martinsburg is violating West Virginia’s preemption law!

    We learned last week in the Martinsburg Journal
    article that alerted us to the proposed Ranson gun ban that Martinsburg has a similar ordinance and promised that we would investigate.

    Since 2005, Martinsburg City Code § 545.14 has provided as follows:
    (a) No person shall carry or possess a firearm or other deadly weapon, whether carried openly or concealed, on any public property or in any building owned, leased or under the care, custody and control of the City of Martinsburg or any political subdivision of the City of Martinsburg.
    (b) No provision of this section shall apply to those persons set forth in Section 545.03 (c) to (f) while such persons are acting in an official capacity, provided, however, that under no circumstances may any person possess or carry or cause the possession or carrying of any firearm or other deadly weapon on the premises of any primary or secondary educational facility in this State unless such person is a law enforcement officer or he or she has the express written permission of the County School Superintendent.

    (c) Any person carrying or possessing a firearm or other deadly weapon on any public property or in any building owned, leased or under the care, custody and control of the City of Martinsburg or any political subdivision of the City of Martinsburg who refuses to temporarily relinquish possession of such firearm or other deadly weapon, upon being requested to do so, or to leave such premises, while in possession of such firearm or other deadly weapon, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) for each offense and, in the discretion of the Police Court Judge, may be placed in jail for a term not to exceed thirty (30) days, or both.

    We just received a copy of this ordinance today and are planning our course of action. You may want to view our letter to Ranson posted in the Ranson gun ban thread.

    The Martinsburg City Council meets on the second Thursday of each month at 6:30 PM.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    Since the law is illegal on the state level, can they actually enforce it? Have they ever cited anyone for it?

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    Also note: All terms expire on June 30th 2008.

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    Sad, but I think that all of the incumbents were already re-elected.

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    FYI, NBC 25 in Hagerstown did a story on the Ranson and Martinsburg gun bans. To clarify the ambiguity at the end of the story, the Ranson City Council is meeting on July 1.

    There is further discussion of the Ranson gun ban on this thread.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    WVCDL wrote:
    The Martinsburg City Council meets on the second Thursday of each month at 6:30 PM.
    The next meeting should be next Thursday, July 10th. Is there anything planned for that meeting?


    EFI, LLC - 07/C2 in Inwood, WV
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    OK guys, who from WV is going to attend and film this?

    I think I've caused enough trouble in your state this month.

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    bcr229 wrote:
    WVCDL wrote:
    The Martinsburg City Council meets on the second Thursday of each month at 6:30 PM.
    The next meeting should be next Thursday, July 10th. Is there anything planned for that meeting?

    We will make no appearance at the July 10 Martinsburg City Council meeting. We continue preparing our strategy for effectively tackling this problem and will provide a public update at an appropriate time.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    I saw that you'll be at the Aug 14th meeting. I'm looking forward to seeing everyone there.

    Also, is anyone up for going out to dinner afterwards, provided we don't get out of there too late?


    EFI, LLC - 07/C2 in Inwood, WV
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    When this meeting is scheduled, please contact me so I can make arrangements to attend.

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    This is an interesting turn of events - looks like M-burg City Council is trying to push the boundaries of the preemption law, just as the DC City Council is trying to push the boundaries of the Heller decision.

    http://www.journal-news.net/page/content.detail/id/509089.html?nav=5006

    City may amend weapons measure
    Martinsburg leaders want to clarify stance

    By Chris Huntemann / Journal Staff Writer

    POSTED: August 5, 2008

    MARTINSBURG - City of Martinsburg leaders are considering an amended ordinance that would prohibit people from carrying or possessing a firearm or other deadly weapon in public buildings.

    The first and second reading of the ordinance was approved unanimously by the Martinsburg City Council during its meeting July 29. There was already an ordinance in place regarding weapons on public property, according to City Manager Mark Baldwin. However, the recent U.S. Supreme Court decision that struck down the ban on citizens owning handguns in Washington, D.C., caused the city to revisit the issue, he said.

    Baldwin and Martinsburg Mayor George Karos met with city attorney Kin Sayre and reviewed the ordinance. The original ordinance had language regarding public properties that was pretty vague, Baldwin said.

    "Our concern was to amend the ordinance based on recommendations by the city attorney," he said. "When you talk about public properties, that includes streets and sidewalks, and that wasn't our intention."

    The new amended ordinance states that no person can carry or possess a firearm or other deadly weapon, whether it is carried openly or concealed, in any building that is owned, leased or under the care of the city of Martinsburg.

    Baldwin said the ordinance applies to buildings such as City Hall, the city's police and fire stations, the city's water and sewer buildings and any buildings belonging to Martinsburg-Berkeley County Parks & Recreation that are on city property.

    If a person is caught with a firearm or other weapon in a building belonging to the city of Martinsburg and refuses to relinquish possession of the weapon or leave the premises while still having possession of the weapon, they will be charged with a misdemeanor. If convicted, they could could face a fine between $100 to $1,000 and a possible 30-day jail sentence.

    Karos said adjustments were made to the previous ordinance in an effort to protect city employees.

    "We are doing everything by the letter of the law and that is what I go by," he said.

    The ordinance will be given its third and final reading during the council's meeting Aug. 14 and will take effect immediately if approved by council.

    Ranson city officials recently considered an ordinance that would have prohibited weapons on public properties as well, but they tabled the issue indefinitely in June after there were concerns about the ordinance language being too vague. Gun rights groups also complained to Ranson leaders about the ordinance.
    EFI, LLC - 07/C2 in Inwood, WV
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    Anyone want to go for a drive to Martinsburg?
    Why open carry? Because 1911 > 911.

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    WVCDL urges all concerned gun owners to attend the MartinsburgCity Council's Thursday, August 14, 2008, regular meeting. The council meeting will begin at 6:30 PM at Martinsburg City Hall, 232 North Queen Street.

    The Council is scheduled to vote on a proposed ordinance that would amend but not repeal the existing ordinance. The Martinsburg Journal reports that the proposed ordinance would modify the gun ban to apply only to city-owned buildings rather than all city-owned property.

    This is not enough! The state preemption law makes no exception for any form of public property gun ban. The proposed ordinance does not cure the city's ongoing violation of the preemption law. The only way the city can fully comply is to repeal the existing ordinance in its entirety.

    WVCDL sent to Martinsburg Mayor George Karos one week ago by certified mail a letter outlining our position regarding the current ordinance and the preemption law.

    Even if you do not plan to address the Council during public comments, your attendance is crucial. A large public turnout will show council members that the public is, indeed, interested in protecting our rights. If you wish to speak, you may need to register 15 minutes before the meeting begins. You will also need time to find parking and walk to the meeting.

    I have received several questions about the current Martinsburg ordinance and how it may affect individuals attending the meeting. WVCDL takes a consistent position that the decision of whether and where to carry is a personal decision that should be informed by good judgment, common sense, and knowledge of and compliance with all applicable laws. Under the current ordinance (and the proposed amended ordinance), a person does not commit an offense until he or she is confronted about the violation and asked to either disarm or leave the premises, and then refuses to do so. Beyond the law, keep in mind that we are trying to persuade a number of local elected officials who are presently in disagreement with us. I personally will not carry a gun into the meetingbut will wear a visible, empty holster, as I did at last week's Charleston City Council meeting. I intend to make the point that the current ordinanceand similar laws only affect people like us—scrupulously law-abiding citizens who follow the law even where we know criminals won’t.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    Good Luck Guys. Rootin' for ya!

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    Hey Guys,

    Martinsburg is a little far for me to travel right now. I still have not recovered from that trip to Morgantown on Sunday. I wish you Good Luck. Go set the place on fire and raise a little .............Paul



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    Let's have a big turnout tomorrow!

    http://www.journal-news.net/page/con....html?nav=5006

    Citizens Defense League wants to talk to Martinsburg’s council

    By Chris Huntemann / Journal Staff Writer

    MARTINSBURG - City leaders can expect to see gun advocates attending Thursday's council meeting.

    Several members of the West Virginia Citizens Defense League (WVCDL) intend to speak out against city leaders' attempt to pass an amended ordinance prohibiting people from carrying or possessing a firearm or other deadly weapon in any building owned, leased or under the care, custody and control of the city of Martinsburg.

    The council approved the first and second reading of the ordinance during its meeting July 29. The ordinance will be given a third and final reading during Thursday's meeting and could take effect immediately if approved by the council. WVCDL President Jim Mullins Jr. said the major problem stems from the original city ordinance that was established in 2005.

    The 2005 ordinance stated that individuals were prohibited from carrying or possessing a firearm or other deadly weapon on any public property or in any building owned, leased or under the care, custody and control of the city of Martinsburg. The amended ordinance that city leaders are attempting to pass does not include the phrase "public property."

    That language was removed from the ordinance because it was vague, said City Manager Mark Baldwin.

    However, Mullins said the amended ordinance does not correct its ongoing violation of a statute the state Legislature has had on the books since 1999. Mullins cited a portion of the statute in a letter dated Aug. 4 that was sent by WVCDL members to Martinsburg Mayor George Karos.

    The letter cites West Virginia State Code, section 8-12-5a, which states that "neither a municipality nor the governing body of any municipality may limit the right of any person to purchase, possess, transfer, own, carry, transport, sell or store any revolver, pistol, rifle or shotgun or any ammunition or ammunition components to be used therewith."

    The type of ordinance city leaders are attempting to pass is prohibited by state law, Mullins said, adding that it is his group's desire to work amicably with city leaders to bring the city back into compliance with state law and repeal the ordinance. In June, WVCDL members went before the Ranson City Council to express concern about a similar ordinance the council was trying to enact. Ranson leaders decided to table the issue indefinitely.

    Mullins said those who go through the proper application process to obtain a firearm are law-abiding citizens. This ordinance tramples on their rights, he said. Mullins has spoken with city attorney Kin Sayre regarding the amended ordinance and Sayre agrees with Mullins that the city's original ordinance was overexpansive. However, Sayre said the purpose of the amended ordinance is not to establish a public policy against guns.

    "I feel the ordinance as proposed does not violate any pertinent West Virginia statutes or any constitutional amendments," he said.


    EFI, LLC - 07/C2 in Inwood, WV
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    I went to the meeting straight from work so I wasn't really dressed for public speaking. I thought about getting up to speak near the end, but had nothing to add from what the current speakers said. I also didn't take notes so please bear with my memory.

    The room was packed; standing-room only at the end. There are 100 seats in the council chambers.

    The NRA lobbyist spoke first. He travelled there from Alexandria. He made a decent presentation, but IMO it needed more polish coming from someone for whom public speaking is part of the job. Basically, it was "state law prohibits this, and here are the relevant sections of code". There was a very, very veiled threat of a lawsuit made, plus the fact that NRA would be working in the WV legislature next spring anyway to strengthen the preemption law and thus the ordinance would be overturned within a year anyway, so better just to repeal it now.

    Jim Mullins from WVCDL made a better presentation IMO from the NRA guy (probably because he's more familiar with WV laws and their history in the legislature) and made several of the same points. He also added that permit holders were not the ones they needed to worry about, and that criminals bent on rape/robbery/murder in a City building wouldn't care about an ordinance that would put them in the regional jail for 30 days.

    Delegate John Overington (http://www.overington.com/) who represents Martinsburg, spoke out against the ordinance. Delegate Overington was serving in the state legislature when the original preemption law passed in 1999, and he told the City Council that the WV Legislature had intended to block localities from passing exactly this type of law!!! I also got the impression that he has contacted other state delegates and senators and has enough support for a strengthened preemption law.

    Folks from Sparks, Shep's, and Valley Guns spoke out against the ordinance.

    Several M-burg residents, most of whom were older veterans, spoke out against the law. Summary: shame on you for violating the constitution and the right of our families and friends to defend themselves at home while we were out fighting and willing to lay down our lives to protect it.

    One resident spoke very... passionately... and said the dreaded L word (lawsuit). He mentioned that it would be too bad if M-burg's $1.5 million budget surplus were wasted on fighting to keep this ordinance instead of going to the police department. He's the one with the "frivolous crap" quote at http://www.journal-news.net/page/con....html?nav=5006
    EFI, LLC - 07/C2 in Inwood, WV
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  18. #18
    Accomplished Advocate BB62's Avatar
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    Sounds like somebody needs to be arrested under their illegal law.

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    BB62 wrote:
    Sounds like somebody needs to be arrested under their illegal law.
    The best route for any challenge is a civil action to enjoin enforcement of the ordinance.

    The only impediment to a lawsuit now is a pending decision on the most effective means for achieving our end goal of nullifying the ordinance and strengthening preemption in West Virginia.

    The argument against an immediate lawsuit is that it would be counterproductive to efforts to pass a stronger preemption law (that a statute is under active litigation is a perfect excuse for legislative leaders to defer action on legislation that would affect that statute). Martinsburg's legal argument is incredibly flimsy at best but any lawsuit would likely take about 2 years to resolve with no guarantee as to the outcome (andalso prolonging the legislative process for a stronger preemption law). Furthermore, regardless of what happens in the 2009 legislative session, we would always have the lawsuit option at a time of our choosing.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    WVCDL attended the August 14, 2008, regular meeting of the MartinsburgCity Council to speak against the city property gun ban and urge the City Council to comply with West Virginia's municipal gun control preemption law (W.Va. Code § 8-12-5a (1999)) by repealing the gun ban in its entirety. Rather than repeal the gun ban, the City Council adopted a revised ordinance that amended the old ordinance to cover only buildings owned, leased or operated by the city rather than all city property; the amendment does not cure the city's violation of the preemption law.

    NRA lobbyist Jordan Austin, WVCDL President Jim Mullins, Delegate John Overington, and about a dozen members of the audience spoke against banning firearms in city buildings. WVCDL President Jim Mullins also delivered a written presentation (PDF, 745K) describing in detail how the ordinance (both as it previously existed and as the City Council subsequently amended it) clearly violates the preemption law. Although most did not speak, dozens of other concerned citizens packed the Council Chamber and made the meeting a rare standing-room-only event. Nevertheless, the City Council ignored our requests and adopted merely an amendment to the old ordinance rather than repeal it in its entirety.

    WVCDL strongly believes Martinsburg is violating the preemption law and is trying to obscure the fact it is openly defying the Legislature with a flimsy legal argument that the preemption law, which was enacted in 1999, is itself preempted by a law enacted in 1989. WVCDL is contemplating its options for how to most effectively enforce (and strengthen) the preemption law. Regardless of how we proceed, one thing is certain: we are revising a preemption reform bill we have previously had introduced in 2007 as SB 715 and 2008 as SB 732 and will work aggressively to enact it in 2009. Based on the responses received to date in WVCDL's candidate surveys (questions 11 and 12 in the legislative candidate survey), there is strong support in the Legislature for a stronger preemption law--support that will surely grow as more legislators become aware of what is happening in Martinsburg (and may soon happen in other cities throughout the state).


    The Martinsburg Journal, Hagerstown Herald-Mail, and WHAG TV covered this meeting. Additionally, this story was reported in many other newspapers throughout the state in the AP State News Briefs.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    Make sure when you get your law you try and get what Ohio got - attorney fees, etc. if a municipality attempts to enforce its ordinance.

    I don't know if that covers costs BEFORE going to court, because I doubt a municipality will actually take it to court...

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    BB62 wrote:
    Make sure when you get your law you try and get what Ohio got - attorney fees, etc. if a municipality attempts to enforce its ordinance.

    I don't know if that covers costs BEFORE going to court, because I doubt a municipality will actually take it to court...
    what Ohio statute gives you attorneys fees for preemption violations? I would like to check that out

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    Mike wrote:
    BB62 wrote:
    Make sure when you get your law you try and get what Ohio got - attorney fees, etc. if a municipality attempts to enforce its ordinance.

    I don't know if that covers costs BEFORE going to court, because I doubt a municipality will actually take it to court...
    what Ohio statute gives you attorneys fees for preemption violations? I would like to check that out
    Ohio Rev. Code § 9.68(B) (2007)("In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.").
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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    Thanks for the cite.

    As far as I know, even we here in Ohio are unsure about whether this covers costs associated with going back and forth with a governmental entity prior to or in the absence of going to court.

    I'm not aware of a circumstance where the above has been tested.

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    BB62 wrote:
    Thanks for the cite.

    As far as I know, even we here in Ohio are unsure about whether this covers costs associated with going back and forth with a governmental entity prior to or in the absence of going to court.

    I'm not aware of a circumstance where the above has been tested.
    I have clarified my bill to ensure that fee-shifting includes any pre-litigation enforcement activities--which should generally go no further than a phone call or letter before filing a lawsuit.

    I would have to examine some case law, but fee-shifting provisions are remedial statutes (laws that provide some form of civil relief) and are thus liberally construed.

    Although I too am awaiting the Ohio Supreme Court's decision in OFCC v. City of Clyde, we in West Virginia do not have to worry about the constitutional home rule issue that Clyde is trying to use to shield itself from preemption. My written presentation to the Martinsburg City Councilcontained just a sampling of our state's case law narrowly construing municipal powers and recognizing Acts of the Legislature as superior to all municipal acts (counties, which have never been a problem because their powers are even more limited than municipalities, are also subject to strict limits on authority).
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

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