The Honorable Catherine Cortez Masto
Nevada Department of Justice
100 N. Carson Street
Carson City, Nevada 89701-4717
Re: Opinion Request Regarding NRS 244.364
Dear Attorney General Masto:
QUESTIONS PRESENTED:First, does NRS 244.364 give Clark County the authority to adopt and enact a local ordinance or regulation which prohibits the carrying, possessing or discharging of firearms in Clark County parks and park facilities? Second, do the Constitution of the United States and the Nevada State Constitution allow Clark County to proscribe the possession of a firearm in county parks?
BACKGROUND INFORMATIONOn April 15, 2009, the Clark County Department of Parks & Recreation received notice from Mr. Tim that he was planning a visit to Clark County parks in the near future, would be openly carrying a firearm, and would be participating in a picnic with others who would also be openly carrying firearms. He stated that Clark County Code 19.04.060 (hereinafter "CCC 19.04.060") was no longer lawful, and was unenforceable under NRS 244.364 which, he stated, prohibited counties from establishing or enforcing any law regarding the possession of firearms, with the exception of discharge and the Clark County blue card registration.
Nevada Revised Statute 244.364 became effective on July 1, 1989. In section one of that statute, the State of Nevada reserved to itself the power to regulate matters relating to the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada. After giving that power exclusively to the State, however, section two gave each county's board of county commissioners the power to establish ordinances or regulations which proscribe any unsafe discharge of firearms.
CCC 19.04.060 gives the Clark County Board of Commissioners the authority to adopt rules and regulations to govern the individual public parks of Clark County. Pursuant to that authority, the Board of Commissioners has adopted rules and regulations governing the public parks of Clark County. These rules prohibit, among other things, the carrying, possessing, or discharging of any firearms within any County park or park facility without the written approval of the Director of Parks & Recreation or designee. To this point, there have been no challenges regarding a conflict between the NRS 244.364 and CCC 19.04.060.
Mr. 's notice precipitated several e-mail conversations between Mr. and the Commander of Clark County Park Police. The Commander contacted our office and requested an opinion in order to know better how to proceed. As a result of subsequent discussions between Mr. and Park Police regarding the possibility of a conflict between the state statute and the county code, our office believes that the opinion of the Nevada State Attorney General is critical in determining whether NRS 244.364 gives counties in Nevada the authority to enact ordinances or regulations prohibiting the carrying or possessing of firearms within their jurisdictions. Therefore, our office requests that you consider Clark County's analysis as well as the attached analysis of Mr. , and that you render an opinion clarifying the effect of NRS 244.364 on CCC 19.04.060.
Our analysis follows.
CLARK COUNTY ANALYSISThe text of NRS 244.364 reads:
1. Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada, and no county may infringe upon those rights and powers. As used in this subsection, “firearm” means any weapon from which a projectile is discharged by means of an explosive, spring, gas, air or other force.
2. A board of county commissioners may proscribe by ordinance or regulation the unsafe discharge of firearms.
3. If a board of county commissioners in a county whose population is 400,000 or more has required by ordinance or regulation adopted before June 13, 1989, the registration of a firearm capable of being concealed, the board of county commissioners shall amend such an ordinance or regulation to require:
(a) A period of at least 60 days of residency in the county before registration of such a firearm is required.
(b) A period of at least 72 hours for the registration of a pistol by a resident of the county upon transfer of title to the pistol to the resident by purchase, gift or any other transfer.
4. Except as otherwise provided in subsection 1, as used in this section:
(a) “Firearm” means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.
(b) “Firearm capable of being concealed” includes all firearms having a barrel less than 12 inches in length.
(c) “Pistol” means a firearm capable of being concealed that is intended to be aimed and fired with one hand.
Sections one and two are the sections most relevant to the question at hand. There are some general principles which have been established when determining whether a general statute and a code section are compatible, allowing the ordinance to be enforced. First, generally, in order to be valid, an ordinance must conform to, and not violate, general statutes. Additionally, if a statute is enacted which conflicts with an earlier ordinance, the ordinance is automatically repealed. 6 McQuillin, Law of Municipal Corporations, §21.32 3d ed. (2007). In determining whether there is a conflict, it is generally held that where general statutes contain no express terms of repeal, the presumption is always against an intention to repeal an earlier statute or ordinance. Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937). In cases where a general statute preempts discrete areas of the subject matter rather than the entire field, an ordinance regulating a portion of the subject which is not preempted is not in direct conflict with, nor impliedly preempted by that statute. Great Western Shows, Inc. v. County of Los Angeles, 27 Cal. 4th 853, 118 Cal. Rptr. 2nd 746, 44 P.3d 120 (2002).
A review of the twenty years during which both NRS 244.364 and CCC 19.04.060 have been in effect does not reveal any legislative action or Federal or Nevada State case law which indicates that the statute and the ordinance are in conflict. Our office has no argument with the conclusion that, in section one of NRS 244.364, the Nevada State Legislature seeks to reserve to itself all matters relating to the registration, ownership, or transfer of firearms and ammunition in Nevada, except by specific statute. There is ambiguity, however, with the meaning of the word 'possession' used in section one. According to Black's Law Dictionary:
The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person, who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
Black's Law Dictionary 1163 (6th ed. 1990); Palmer v. State of Nevada, 112 Nev. 763, 920 P.2d 112 (1996).
By stating that, 'the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms in Nevada,’ the Legislature placed the word 'possession' within a list of words relating to the ownership, control or registration of a firearm. Of the two meanings Black's Law Dictionary gives to 'possession,' constructive possession is the most reasonable fit. The Legislature intended to regulate a person's power and intention to exercise dominion or control over a thing, either directly or through another person or persons. There is no indication that the statute required the firearm to be under direct physical control.
On the other hand, the rule adopted pursuant to CCC 19. 04.060 specifically prohibits 'the carrying, possessing or discharging' of any firearm within any county park or park facility. In this rule, 'possessing' is between two words which require the direct physical control of the firearm. Using the most reasonable meaning in each context, NRS 244.364 allows the Clark County Parks & Recreation rule to be enforced because it provides a vehicle by which the county commission proscribes the unsafe discharge of firearms.
There are several state statutes which prohibit the carrying of a firearm in specific places and situations. For example, NRS 202.257 makes it unlawful for a person who is under the influence of alcohol or a controlled substance to 'have actual physical possession' of any firearm except for the purpose of self-defense within his personal residence. NRS 202.3673 does not allow anyone to carry a concealed weapon while on the premises of a public airport, public school, child-care facility, property of the Nevada System of Higher Education or any public building with a metal detector at each public entrance, without written permission or an exemption under section four of that statute. NRS 202.265 expressly states that, except as otherwise provided in that section, a person 'shall not carry or possess' a pistol, revolver or other firearm while on the property of the Nevada System of Higher Education, a private or public school or child care facility, or while in a vehicle of a private or public school or child care facility.
NRS 244.300 gives county commissioners the power to operate, manage, improve and maintain public parks, golf courses and other public recreational and cultural centers and areas. Along with this broad power comes the responsibility to keep these public places at least as safe as the public places regulated by state statute. Throughout NRS Chapter 455B, owners, managers and operators of parks open to the public are required to post safety rules and regulations conspicuously in their parks. The counties are the managers and operators for many of these parks. NRS 244.364(2) also acknowledges at least part of that responsibility when it gives counties the power to regulate the safe discharge of firearms. The Parks & Recreation rule made pursuant to CCC 19.04.060 prohibits the 'carrying, possessing, or discharging' of any firearms in public parks and park facilities. These are the same words NRS 202.265 uses when forbidding firearms in public schools. The state statute and the county rule use the same method to achieve the same result. They both make sure there is no unsafe discharge of a firearm. The method of the rule is no more restrictive than that of the state statute. When the Legislature enacted NRS 244.364, it contemplated that the power given in section two would allow counties to use the same method of enforcement used in one of its own statutes.
A study of the legislative history of NRS 244.364 sheds more light on the intent of the Nevada State Legislature when it considered Assembly Bill No. 147 (A.B. 147) in the 1989 Legislature. Three provisions of Nevada Revised Statutes would later be enacted from this bill. One of those provisions was NRS 244.364. On February 9, 1989, Speaker of the Assembly, Joseph Dini, wrote a letter to Attorney General Brian McKay requesting answers to several questions regarding A.B. 147. The first question in Assemblyman Dini's letter was whether A.B.147 would repeal or make ineffective local discharge ordinances. In his answering letter on February 17, 1989, Attorney General McKay responded to that question with the following:
This statute would preempt for state regulation all forms of governmental regulation involving firearms and ammunition in Nevada, with one exception. That exception allows cities, counties, and towns to prescribe by ordinance or regulations which would prohibit discharging firearms on the public streets or other public places, in urbanized areas, or into structures, vehicles, aircraft or watercraft. Such unlawful discharge ordinances would be the only type of local ordinance or regulation permitted if A.B.147 became law. Therefore, the answer to your question is A.B.147 would not repeal or make ineffective local unlawful discharge ordinances of the type described herein.
See 2/17/1989 letter attached.
In a February 21, 1989 letter from Lorne J. Malkiewich, Legislative Counsel, to Assemblyman Dini, Mr. Malkiewich explained the implications of A.B. 147 in these words:
That is, a local government has no right to interfere with or complement the legislation of the state by prescribing additional regulations or auxiliary provisions for the same purpose. As an example, since Assembly Bill No. 147 authorizes local governments to regulate the unsafe discharge of firearms, local ordinances may be more stringent than state laws regulating the discharge of firearms. However, if a local government enacted an ordinance requiring the licensing of all handguns, such an ordinance would invade the exclusive province of the legislature and would be void unless specifically authorized by state statute.
See Attached 2/21/1989 Letter.
Despite the efforts to unify the regulation of firearms and ammunition throughout the state, the final text of A.B. 147 included section five which stated that the provisions of the act applied only to ordinances or regulations adopted on or after the effective date of the act. Clark County's regulation prohibiting the possession, carrying or discharging of firearms in public parks and park facilities of Clark County was adopted by the Clark County Commission on January 5, 1981. Therefore, the bill allowed the rule to be grandfathered into the new NRS 244.364 regardless of its compliance with the preemption of section one of that statute.
See attached text of Assembly Bill #147. See also attached Clark County Commissioners Agenda Item #23, 8/5/81.
In addition to the grandfathering of all previously adopted ordinances, when the three provisions from A.B. 147 were enacted, the Legislature had been advised by legal counsel that the purpose of section one in each of the new statutes was different from the purpose of section two. As a result of that difference, counties, cities and towns would have the power to adopt regulations for the purpose of making the discharge of firearms safe within their jurisdictions. Additionally, Legislative Counsel advised that those local governments could adopt regulations which were more stringent than state laws regulating the discharge of firearms. Considering NRS 202.265, which prohibits the same action in public schools as the county regulation prohibits in county parks, Clark County's regulation stops well within the advice given by counsel, which would allow the county regulation to be even more stringent than the state statute.
In 2007 Senate Bill 92 proposed an amendment to NRS 244.364. This resulted in the addition of section three of the current statute. In an Assembly Committee on Government Affairs meeting on May 10, 2007, Senator John Lee described the situation which had led to the proposed amendment:
Assembly Bill No. 147 of the 65th Session brought the licensing of firearms into one uniform law. Previously, every county had different ordinances on its municipal books. Assembly Bill No. 147 of the 65th Session made that disappear with one law which each person in Nevada would know and understand.
To pass this law, Clark County negotiated a carve-out which said they would be treated differently than the other 16 counties. They were able to keep their ordinances or regulations previously accepted by local government before June 13, 1989.
Things have changed in Clark County. We have conventions that come to Las Vegas that are entirely about guns and shooting.
See attached committee minutes.
In the end, the third section of NRS 244.364 was the result of a compromise which Ray Flynn, Assistant Sheriff, Las Vegas Metropolitan Police Department characterized in his statement at that meeting:
The way the Nevada Revised Statutes (NRS) is written, if the county were to change any of the gun registration laws on its own, it would automatically void them. This is why it needs legislative intervention.
The way S.B. 92 is written, it meets the needs of Clark County, but also recognizes that times have changed.
See minutes Id.
Thus, despite the discussion of repealing all grandfathered ordinances, the only amendments to grandfathered ordinances and rules required by the changes of 2007 were those which would allow visitors who were not permanent residents of the county the right to legally keep their concealed firearms for the duration of their stay. It also did not change the authority given in section two. Our conclusion is that the amendment of 2007 allowed the Clark County Parks & Recreation rule, which was adopted with its current wording by the Clark County Board of County Commissioners on January 5, 1981, to remain in effect. It also left the authority of counties to regulate the safe discharge of firearms in their jurisdictions untouched.
Though our office has not found any Nevada case law which discusses the possibility of firearm ordinances such as the CCC 19.04.060 violating a general statute like NRS 244.364, neighboring states have addressed the issue. Washington and Arizona state courts have determined that an ordinance which is a limited prohibition reasonably related to particular places and necessary to protect the public safety, health, morals and general welfare is not preempted by state statute. City of Tucson v. Rineer 193 Ariz. 160, 971 P.2d 207 (Ariz. App.1998). see also Second Amendment Foundation v. City of Renton, 35 Wash. App. 583, 668 P.2d 596, 599 (Wash. App. 1983). Similarly, California courts have addressed the issue with a three pronged test to determine if the general statute preempts the local ordinance. First, the subject matter of the general statute must be so fully and completely covered by general laws as to clearly indicate that it had become exclusively a matter of state concern. Second, the subject matter, even though only partially covered by general law, must be couched in such terms as to indicate clearly that a paramount state concern would not tolerate further or additional local action. Third, the subject matter, even though only partially covered by general law, is of such a nature that the adverse affect of a local ordinance on the transient citizens of the state outweighed the possible benefit to the locality. Great Western Shows, Inc. v. County of Los Angeles, 27 Cal. 4th 853, 118 Cal. Rptr. 2d 746, 44 P.3d 120 (2002).
The rule adopted by the Clark County Board of County Commissioners is limited to particular property, its parks and park facilities, and the county has great interest in protecting the safety, health, morals and general welfare of those who visit these places. In addition, the statute, though generally preempting the field of firearm regulation, expressly grants counties broad power to regulate the discharge of firearms in the county. It would make no sense to add this grant of power to counties if the legislature intended to reserve to itself every aspect of firearm regulation. City of Tucson .v Rineer, Id.
An issue which Mr. did not mention in his notice to the Clark County Department of Parks & Recreation, but discussed at length in his attached letter to you, was that of the constitutionality of Clark County's rule. His argument is that the rule fails to comply with both the Nevada State Constitution and the Constitution of the United States. This issue, since it specifically concerns the state constitution, bears some analysis.
The most recent U.S. Supreme Court case addressing the Second Amendment guarantee to keep and bear arms is District of Columbia v. Heller, 128 S.CT. 2783 (2008). The specific decision was:
In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.
Heller, p. 38.
The Court specifically limited its holding to the situation regulated by the District of Columbia's ordinance, possession of an operable firearm in the home for the purpose of immediate self-defense. It also distinguished its holding from certain longstanding limitations on Second Amendment rights:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. FN 26
FN 26. We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
Heller, p. 33-34
Public parks and park facilities are places owned or leased, and operated by local governments for the purpose of inviting anyone seeking rest, relaxation, exercise, and sometimes even entertainment. It includes the very young to the very old, and all who enter have the expectation of safety during their visit. They are in the same category as a public building, airport, or school, where the Court in Heller considered a prohibition on the carrying of firearms a lawful regulatory measure.
A year after the Heller decision, the Ninth Circuit Court of Appeals, in the case of Nordyke v. King 563 F.3d 439, considered whether the Second Amendment prohibited a local government from regulating gun possession on its property. The case considered the constitutionality of a county ordinance which forbade the possession and carrying of firearms on county property. After a long discussion of the applicability of the Second Amendment to local governments through the Due Process Clause of the Fourteenth Amendment, the Court held that the Second Amendment did not contain an entitlement to bring guns onto government property, and that the county ordinance did not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. Nordyke, P. 20.
The Clark County rule does not go as far the California ordinance, as it only prohibits the possession of firearms on county parks and park facilities, not all of the property owned or operated by Clark County. Therefore, we have concluded that the Ninth Circuit Court of Appeals, having jurisdiction over Nevada State Federal Questions, would consider the Clark County rule constitutionally enforceable.
Our conclusion is that the Clark County rule prohibiting the possession, carrying or discharge of firearms while in parks, or park facilities was grandfathered into the current state statute, NRS 244.364, as the rule was adopted by Clark County in 1981, eight years before the enactment of the state statute. We further conclude that the rule is within the exception articulated in NRS 244.364(2), which gives counties broad powers to regulate the unsafe discharge of firearms within their jurisdictions. Finally, we conclude that the state statute which allows the prohibition is constitutional under both the Nevada State and the U.S. Constitutions.
We look forward to hearing from you in this matter. If you have any questions or need additional information, please do not hesitate to contact us.
By: MARY ANN PETERSON
Deputy District Attorney