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Thread: Is this Town Code legal?

  1. #1
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    Code from the Town of Oro Valley
    10-1-28 Weapons Near A School Prohibited
    It shall be unlawful for anyone to carry or otherwise possess any weapon as defined in the state statutes or Town Code within 250 feet of any school or school grounds, public or private, such weapon is located within a private residence already located within 250 feet of any school or school grounds, and is possessed by the authorized owner/occupant. This provision also shall not apply to areas such as a park where state law provisions regarding firearms take precedence if a such a Park is within 250 feet of a school. However, the person possessing such a firearm in such an area must comply with the current state law or this Code shall take effect. This provision shall apply whether the school is in session at the time or not. This provision shall not apply to any items being transported past the school, and intended for immediate use for sporting or other recreational activities; to any duly qualified peace officer, or any Town or school personnel for which the weapon is reasonably classified as a "tool" for the scope of their duties. (02-07, Added, 03/20/2002)
    Arizona Statute

    13-3108. Firearms regulated by state; state preemption; violation; classification A. Except as provided in subsection C of this section, a political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer or use of firearms or ammunition or any firearm or ammunition components in this state.
    B. A political subdivision of this state shall not require the licensing or registration of firearms or ammunition or any firearm or ammunition components or prohibit the ownership, purchase, sale or transfer of firearms or ammunition or any firearm or ammunition components.
    C. This section does not prohibit a political subdivision of this state from enacting and enforcing any ordinance or rule pursuant to state law, to implement or enforce state law or relating to any of the following: 1. Imposing any privilege or use tax on the retail sale, lease or rental of, or the gross proceeds or gross income from the sale, lease or rental of, firearms or ammunition or any firearm or ammunition components at a rate that applies generally to other items of tangible personal property. 2. Prohibiting a minor who is unaccompanied by a parent, grandparent or guardian or a certified hunter safety instructor or certified firearms safety instructor acting with the consent of the minor's parent, grandparent or guardian from knowingly possessing or carrying on the minor's person, within the minor's immediate control or in or on a means of transportation a firearm in any place that is open to the public or on any street or highway or on any private property except private property that is owned or leased by the minor or the minor's parent, grandparent or guardian. Any ordinance or rule that is adopted pursuant to this paragraph shall not apply to a minor who is fourteen, fifteen, sixteen or seventeen years of age and who is engaged in any of the following: (a) Lawful hunting or shooting events or marksmanship practice at established ranges or other areas where the discharge of a firearm is not prohibited. (b) Lawful transportation of an unloaded firearm for the purpose of lawful hunting. (c) Lawful transportation of an unloaded firearm between the hours of 5:00 a.m. and 10:00 p.m. for the purpose of shooting events or marksmanship practice at established ranges or other areas where the discharge of a firearm is not prohibited. (d) Any activity that is related to the production of crops, livestock, poultry, livestock products, poultry products or ratites or storage of agricultural commodities. 3. The use of land and structures, including a business relating to firearms or ammunition or their components or a shooting range in the same manner as other commercial businesses. Notwithstanding any other law, this paragraph does not authorize a political subdivision to regulate the sale or transfer of firearms on property it owns, leases, operates or controls in a manner that is different than or inconsistent with state law. For the purposes of this paragraph, a use permit or other contract that provides for the use of property owned, leased, operated or controlled by a political subdivision shall not be considered a sale, conveyance or disposition of property. 4. Regulating employees or independent contractors of the political subdivision who are acting within the course and scope of their employment or contract. 5. Limiting firearms possession in parks or preserves of one square mile or less in area to persons who possess a concealed weapons permit issued pursuant to section 13-3112. The political subdivision shall post reasonable notice at each park or preserve. The notice shall state the following: "Carrying a firearm in this park is limited to persons who possess a permit issued pursuant to section 13-3112." In parks or preserves that are more than one square mile in area, a political subdivision may designate developed or improved areas in which the political subdivision may limit firearms possession to persons who possess a concealed weapons permit issued pursuant to section 13-3112. The political subdivision shall post reasonable notice at each designated developed or improved area. The notice shall state the following: "Carrying a firearm in this developed or improved area is limited to persons with a permit issued pursuant to section 13-3112." For the purposes of this paragraph, "developed or improved area" means an area of property developed for public recreation or family activity, including picnic areas, concessions, playgrounds, amphitheaters, racquet courts, swimming areas, golf courses, zoos, horseback riding facilities and boat landing and docking facilities. Developed or improved area does not include campgrounds, trails, paths or roadways except trails, paths and roadways directly associated with and adjacent to designated developed or improved areas. Any notice that is required by this paragraph shall be conspicuously posted at all public entrances and at intervals of one-fourth mile or less where the park, preserve or developed or improved area has an open perimeter. Any limitation imposed by a political subdivision pursuant to this paragraph shall not apply to a person: (a) Engaged in a permitted firearms or hunter safety course conducted in a park by a certified hunter safety instructor or certified firearms safety instructor. (b) At a properly supervised range, as defined in section 13-3107, at a permitted shooting event, at a permitted firearms show or in a permitted hunting area. (c) Legally transporting, carrying, storing or possessing a firearm in a vehicle. (d) Going directly to or from an area where the person is lawfully engaged in hunting, marksmanship practice or recreational shooting. (e) Traversing a trailhead area in order to gain access to areas where the possession of firearms is not limited. (f) Using trails, paths or roadways to go directly to or from an area where the possession of firearms is not limited and where no reasonable alternate means of access is available. 6. Limiting or prohibiting the discharge of firearms in parks and preserves except: (a) As allowed pursuant to chapter 4 of this title. (b) On a properly supervised range as defined in section 13-3107. (c) In an area recommended as a hunting area by the Arizona game and fish department and approved and posted as required by the political subdivision's chief law enforcement officer. Any such area may be closed when deemed unsafe by the political subdivision's chief law enforcement officer or the director of the Arizona game and fish department. (d) To control nuisance wildlife by permit from the Arizona game and fish department or the United States fish and wildlife service. (e) By special permit of the chief law enforcement officer of the political subdivision. (f) As required by an animal control officer in performing duties specified in section 9-499.04 and title 11, chapter 7, article 6. (g) In self-defense or defense of another person against an animal attack if a reasonable person would believe that deadly physical force against the animal is immediately necessary and reasonable under the circumstances to protect oneself or the other person.
    D. A violation of any ordinance established pursuant to subsection C, paragraph 6 of this section is a class 2 misdemeanor unless the political subdivision designates a lesser classification by ordinance.
    Emphasis is mine.


    I can't see anything in the Statute that would allow the Town to pass/enforce this ordinance. Am I right/wrong?



  2. #2
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    It appears to be pre-empted. That does not mean it is illegal or that the town cannot make such a rule and enforce it.

    It just means the judge will likely toss the case if it gets that far.

  3. #3
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    Is there anything that can be done without having to be arrested?

    It just irks the hell out of me that municipalities create "laws" that are illegal. And as far as I'm concerned it's illegal if there is another higher law that says you can't make that law (which there is in this case).



    Rant over now.

    Seriously though, can anything be done in general whenever we find a statute/code/regulation/etc that violates a preemption by the state?

  4. #4
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    bring it to the attention of your alderman.

  5. #5
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    This one is convenient. If the police were dumb enough to arrest someone for an illegal law that is preempted, you could easily sue for thousands of dollars and get yourself a nice set of guns you never dreamed of having before.



  6. #6
    Regular Member AZkopper's Avatar
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    Go to the next town council meeting. Bring that town ordinance and the ARS with you. Make one copy of the relevant sections of ARS each for each town councilperson. During open discussion, voice your "opinion" (ie: the Law) and ask them why they think the Town of Oro Valley is above the state law? Inform them (and the public) that if they were to inforce that ordinance, since you have so kindly pointed out the state law to them, they would be facing serious lawsuits. Ask them how they think they can preempt state law?

    Maybe if you publicly face them off, with the law, they will back down. If not, at least you will have statements as public record of their knowledge of an illegal statute.

    Also, write the Oro Valley PD chief. Include a copy of the ordinance and the ARS relevant sections. Ask in the letter how the town is above preemption and underr what ARS legal ground do they inforce the ordinence. Do it in writting, again, for a paper trail. Ask for a reply in writing. No matter what the responce, at least you have written proof for your lawsuit.

    A review of the ordinance also shows that there is no penalty assigned to it. So it may just be an empty ordinance, too.





  7. #7
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    I have seen that few of the ordinances of the town have penalties attached. I thought it rather odd.

  8. #8
    Regular Member Sonora Rebel's Avatar
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    "However, the person possessing such a firearm in such an area must comply with the current state law or this Code shall take effect. This provision shall apply whether the school is in session at the time or not. This provision shall not apply to any items being transported past the school,..."



    What's the problem? Don't wander around school grounds heeled.

  9. #9
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    No real problems. Actually I'm even more exempt from most AZ State gun laws than most of you, so I expect no problems. It's just that I hate laws/rules/regulations that are wrong. Pet peeve if you will.

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