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Start using 15.2 915 - Activist Preemption now has teeth!!

Thundar

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The pre-emption law (15.2 915) now (or as of July 1) has teeth.

This is your opportunity to get rid of old town, city or county laws which violate pre-emption.

Here is how you can do it in three easy steps

1) See if your town, city or county has and questionable laws with a quick search of Muni-code online

Link:

http://www.municode.com/RESOURCES/OnlineLibrary.asp

Click on Virginia and a list of towns, cities and counties will appear. If your town is not on Muni-Code (Richmond comes to mind) find the code using a simple google search.

2) Write a letter or e-mail to your elected officials if the local lawtries to do anything except reenact (copy) state firearms laws or regulate discharge of firearms. Make sure you mention the possibility of a lawsuit and new para C which allows you to collect attorney fes and court costs if you win in court.

3) Follow up with a telephone call to the town, city or county attorney to ensure that they know you are serious.

This is what I did in Chesapeake:

Municode Link:

http://www.municode.com/RESOURCES/gateway.asp?pid=10529&sid=46

Here is the pre-emption violation:

Sec. 46-44. Same--Persons under 18 years of age.


(a)It shall be unlawful for any person under the age of 18 years to shoot, carry or use any firearms within the city unless a permit is first obtained from the chief of police, except when on a properly established target shooting range which is being supervised by a representative of the armed services of the United States or the state or an instructor certified by the National Rifle Association.

(b)Application for such permit shall be made in person to the chief of police of the city and the applicant shall be accompanied by his or her parent or guardian who shall give his or her approval to the issuance of the permit.

(c)A minor under 18 years of age shall be accompanied by an adult while hunting, except on property owned by his or her family.

(Ord. of 11-12-63; Code 1970, § 17-61)

Here is my e-mail to the city council:


Good Afternoon,



1) The City of Chesapeake has an ordnance, section 46-44 which has been pre-empted by the General Assembly under section 15.2 915 for many years.



2) The Asst. City Attorney has been aware of this defect for more than one year.



3) There is real danger to my children that they will be subject to arrest under this city ordnance, even though it is preempted by state code.



4) I intend to bring suit in against the City of Chesapeake in Circuit Court on 02 July 2009 if the pre-empted statute is not struck before that date by the City Council.



5) Please be aware that on 01 July 2009 section 15.2 915 will include new sub para C which allows courts to award reasonable attorneys fees, expenses and court costs to any person that prevails in an actionchallenging local laws that are inconflict with section 15.2 915.



6) I hope that with a financial incentive to do so, the City of Chesapeake will finally do the right thing and amend the city code to strike section 46-44 and be in conformity with state firearms law.



Thank you for your time.
 

SicSemperTyrannis

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Wow - Henrico County still hasa couple ofpre-empted ordinances on the books! For example, taxicab drivers are forbidden from having firearms in theirtaxi (apparently even with a CHP!). I need to spend more time to better understand the link , but assuming I am reading it correctly, I'll send a letter early next week to the County Board and attorney.
 

Citizen

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I'm not convinced its a good ideato start sending these lettersjust yet. We still have the veto override session of General Assembly. I'm not sure we'd want a bunch of local politicians blasting the GA and Tim-gov for a fast repeal.

Why not wait just a bit?
 

Jonesy

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Alexandria, Virginia, USA
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Alexandria has these that caught my eye, and others re sale:

Sec. 13-2-4 Carrying loaded firearms

It shall be unlawful for any unauthorized person to carry a loaded firearm in any public place. (Code 1963, Sec. 41-4)

Sec. 13-2-24 Record of pistols or revolvers sold or disposed of.


Every person delivering or disposing of a pistol or revolver shall make in duplicate a true record of every such weapon sold or otherwise disposed of, which record shall be personally signed by the purchaser or person receiving the weapon and also by the person making the sale or disposition in the presence of each other. This record shall be in such form and shall contain such information as the chief of police may prescribe, the forms to be furnished at the expense of the city and one (1) copy thereof shall be forwarded, within seven (7) days after sale or disposition, to the chief of police. (Code 1963, Sec. 41-9)

Sec. 6-1-1.1 Same--hunting prohibited in adjacent area.


It shall be unlawful for any person, within 100 yards of any property line of any public park or playground in the city, to discharge or to hunt with any firearm. It shall also be unlawful for any person to traverse any area within 100 yards of any property line of any public park or playground in the city while in possession of a loaded firearm. Any person violating this section shall be guilty of a class 4 misdemeanor. (Ord. No. 3323, 9/24/88, Sec. 1)

ARTICLE E Ammunition


Sec. 13-2-76 Definition.

For the purpose of this article, the term "restricted handgun ammunition" shall mean any cartridge designed primarily for use in a handgun containing a bullet that is coated with or contains in whole or in part teflon such as the KTW type, or is known commercially as "French Arcane." Nothing contained in this article shall pertain to ammunition from which the propellant has been removed or the primer has been permanently deactivated. (Ord. No. 2716, 9/28/82, Sec. 1)

Sec. 13-2-77 Unlawful conduct.

It shall be unlawful for any person within the city to possess, manufacture or sell restricted handgun ammunition; provided, however, that nothing contained in this article shall prohibit the sale to, purchase by or possession of any ammunition by the military or naval forces of the commonwealth or of the United States for use in the discharge of their official duties. (Ord. No. 2716, 9/28/82, Sec. 1)

Sec. 13-2-78 Regulations.

The city manager shall establish regulations for the testing and evaluation of suspected, restricted handgun ammunition, and fees therefor; shall maintain a public record of the ammunition so evaluated; and shall provide a mechanism by which all restricted handgun ammunition may be turned in to city authorities. (Ord. No. 2716, 9/28/82, Sec. 1)

Sec. 13-2-79 Penalties.

Any person violating any provision of this article shall, upon conviction thereof, be punished by a fine of not more than $500 or by imprisonment not exceeding six months. In addition to any penalty, the court may require any person convicted of violating the provisions of this article to give bond for one year to assure compliance with the provisions of this article. In addition to any other remedy provided herein or in place thereof, failure to comply with any provisions of this article may be enjoined by an appropriate proceeding instituted in a court of competent jurisdiction by the city attorney. (Ord. No. 2716, 9/28/82, Sec. 1)
 

skidmark

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SicSemperTyrannis wrote:
Wow - Henrico County still hasa couple ofpre-empted ordinances on the books! For example, taxicab drivers are forbidden from having firearms in theirtaxi (apparently even with a CHP!). I need to spend more time to better understand the link , but assuming I am reading it correctly, I'll send a letter early next week to the County Board and attorney.

Taxi drivers are listed as Conservators of the Peace under 18.2-308, C4 and can only carry if they have a CHP. Go get them!
C. This section shall also not apply to any of the following individuals while in the discharge of their official duties, or while in transit to or from such duties:

1. Carriers of the United States mail;

2. Officers or guards of any state correctional institution;

3. [Repealed.]

4. Conservators of the peace, except that an attorney for the Commonwealth or assistant attorney for the Commonwealth may carry a concealed handgun pursuant to subdivision B 9. However, the following conservators of the peace shall not be permitted to carry a concealed handgun without obtaining a permit as provided in subsection D hereof: (a) notaries public; (b) registrars; (c) drivers, operators or other persons in charge of any motor vehicle carrier of passengers for hire; or (d) commissioners in chancery;
stay safe.

skidmark
 

skidmark

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Citizen wrote:
I'm not convinced its a good ideato start sending these lettersjust yet. We still have the veto override session of General Assembly. I'm not sure we'd want a bunch of local politicians blasting the GA and Tim-gov for a fast repeal.

Why not wait just a bit?

Governor Timmy had his opportunity to veto this, and he chose not to. THere is nothing to do but wait for 7/1/09 when this law becomes effective.

IMHO it is only helping localities clear up local laws that conflict with state law before the date when they will have to start paying court & legal costs if sued to do so. Just good civic duty in these tight financial times, if you ask me.

stay safe.

skidmark
 

user

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It drives me nuts that people keep calling this "pre-emption", as though the local ordinances were somehow effective. This isn't "pre-emption", because local ordinances enacted in excess of the power to do so are void.

There are jurisdictions that pretty much do what they want to, on the theory that they can cause you so much trouble, even if it's unlawful for them to do so, that you'll either knuckle under or leave town. In other words, they know perfectly well that ordinance is void, and legally unenforceable. They don't care, because it's too hard for you to fight with them about it.
 

Grapeshot

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skidmark wrote:
Citizen wrote:
I'm not convinced its a good ideato start sending these lettersjust yet. We still have the veto override session of General Assembly. I'm not sure we'd want a bunch of local politicians blasting the GA and Tim-gov for a fast repeal.

Why not wait just a bit?

Governor Timmy had his opportunity to veto this, and he chose not to. THere is nothing to do but wait for 7/1/09 when this law becomes effective.

IMHO it is only helping localities clear up local laws that conflict with state law before the date when they will have to start paying court & legal costs if sued to do so. Just good civic duty in these tight financial times, if you ask me.
My reading of this is that the courts may allow recovery of your legal fees & court costs - not shall or will allow.

Did I miss something?

Yata hey
 

user

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Grapeshot wrote:
skidmark wrote:
Citizen wrote:
I'm not convinced its a good idea to start sending these letters just yet.   We still have the veto override session of General Assembly.  I'm not sure we'd want a bunch of local politicians blasting the GA and Tim-gov for a fast repeal.

Why not wait just a bit?

Governor Timmy had his opportunity to veto this, and he chose not to.  THere is nothing to do but wait for 7/1/09 when this law becomes effective.

IMHO it is only helping localities clear up local laws that conflict with state law before the date when they will have to start paying court & legal costs if sued to do so.  Just good civic duty in these tight financial times, if you ask me.
My reading of this is that the courts may allow recovery of your legal fees & court costs - not shall or will allow.

Did I miss something?

            Yata hey

Well, costs of litigation are always recoverable, by statute. However, what the courts "may" award is "a reasonable legal fee", not necessarily what you've paid. I had a case once where the consumer protection statute sued under provided such reimbursement, and where I'd put about six thousand dollars' worth of work into it (because the scum bags made it so hard to sue them), only to have a General District Court judge rule that $300 was reasonable, because the plaintiff was "only a consumer". My clients would have been stuck twice, once by the retailer and once by the judge if I hadn't been willing to take the judge's "sticking". I suspect that the courts will find "a reasonable attorneys' fee" a highly manipulable concept in this context.
 

TFred

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Most historic town in, Virginia, USA
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user wrote:
Grapeshot wrote:
skidmark wrote:
Citizen wrote:
I'm not convinced its a good ideato start sending these lettersjust yet. We still have the veto override session of General Assembly. I'm not sure we'd want a bunch of local politicians blasting the GA and Tim-gov for a fast repeal.

Why not wait just a bit?

Governor Timmy had his opportunity to veto this, and he chose not to. THere is nothing to do but wait for 7/1/09 when this law becomes effective.

IMHO it is only helping localities clear up local laws that conflict with state law before the date when they will have to start paying court & legal costs if sued to do so. Just good civic duty in these tight financial times, if you ask me.
My reading of this is that the courts may allow recovery of your legal fees & court costs - not shall or will allow.

Did I miss something?

Yata hey

Well, costs of litigation are always recoverable, by statute. However, what the courts "may" award is "a reasonable legal fee", not necessarily what you've paid. I had a case once where the consumer protection statute sued under provided such reimbursement, and where I'd put about six thousand dollars' worth of work into it (because the scum bags made it so hard to sue them), only to have a General District Court judge rule that $300 was reasonable, because the plaintiff was "only a consumer". My clients would have been stuck twice, once by the retailer and once by the judge if I hadn't been willing to take the judge's "sticking". I suspect that the courts will find "a reasonable attorneys' fee" a highly manipulable concept in this context.
I hope that "may" can be changed to "shall" in a future year with a more friendly governor. Same with the gun buy-back bill, although it is clear that Kaine didn't even understand that it was "may" and not "shall".

TFred
 

G9M&P15

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Reston, VA, ,
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Thundar wrote:
2) Write a letter or e-mail to your elected officials if the local lawtries to do anything except reenact (copy) state firearms laws or regulate discharge of firearms. Make sure you mention the possibility of a lawsuit and new para C which allows you to collect attorney fes and court costs if you win in court.

State preemption covers laws regarding the discharge of firearms?

I didn't know that...

I would assume that would be covered under noise regulations anyway, right?
 

TexasNative

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Austin, TX
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KimberG19 wrote:
Thundar wrote:
2) Write a letter or e-mail to your elected officials if the local lawtries to do anything except reenact (copy) state firearms laws or regulate discharge of firearms. Make sure you mention the possibility of a lawsuit and new para C which allows you to collect attorney fes and court costs if you win in court.

State preemption covers laws regarding the discharge of firearms?

I didn't know that...

I would assume that would be covered under noise regulations anyway, right?
It's just the reverse, and that's why Thundar included that phrase. There are only a few areas of firearm law where localities are allowed to intervene. Among those are discharge of a firearm and hunting, if I remember correctly.
 

Thundar

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Chesapeake has acknowledged my e-mail, now I am just waiting for a response.

Here it is:

Re: Future Action and Liability of the City of Chesapeake

From:

"Dolores Moore" <dmoore@cityofchesapeake.net>



To: "xxxxxxxxx, xxxxxxxxxx@yahoo.com>



Mr. xxxxxxxxxxxx:



Thank you for contacting the Chesapeake City Council with your comments on City Code Section 46-44. Your email has been provided to the City Council members and tothe City Attorney's Office for response.
 

IanB

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Jonesy wrote:
Alexandria has these that caught my eye...
I think Mayor Euille is gonna be hating me come this summer. I have politely asked twice that they bring the city code into line. Also, York County ignored my requests to ammend their code. Someone in York should work on them once July approaches.
 
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