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Elkhorn ordinance against OC

M

Master Doug Huffman

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Doug Huffman wrote:
KiLLaDaTa wrote:
anyway i like pointman's idea and i am going to focus on that i think it is exactly what we need! alittle organization
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And what is that idea? Be careful of 'little organizations' because they are usually seen as needing leaders and that is just what the controversy here is about, who will be more equal than the others.

We have this forum of more or less like minded folks. Coordinated action is the desired result of leadership. Throw a good idea up on the wall and if it sticks then we can all follow up. If it doesn't no foul, no harm.

We have a good example if you will follow the 'county resolution' topic. A good idea but it became somebody's rice-bowl and was corrupted by self-interest.
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Still, crazy, after all these years the same old memes keep popping up!

Master Doug Huffman wrote:
Ahh, some of us are more meaningfully equal than others? I doubt that I am concerned with or even interested in your 'consideration'.
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paul@paul-fisher.com

paul@paul-fisher.com

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bnhcomputing wrote:
Just to be clear, they actually updated the ordinances and took this off the books?
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Not yet. The city attorney has drafted a change but it hasn't gone through the process yet. I'll keep on it.
 
paul@paul-fisher.com

paul@paul-fisher.com

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OK. This is getting kinda tedious. Anyhow, they had a reading of the proposed ordinance, one of the committee members had a question but the city attorney wasn't there. They have scheduled it to go to the common council on June 7th. Since it will still be tweaked, she won't give me the wording yet.

I'll keep on top of it.
 
davegran

davegran

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paul@paul-fisher.com

paul@paul-fisher.com

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1st Reading was tonight.

So, I finally made it to the city council meeting. I could only get a hard copy of the proposed ordinance. While I think it is overkill, I only see 2 real 'problems' with it:

1. 9.045.f. They don't have an exclusion for getting permission from the owner or agent of the class-b establishment.
2. 9.045.a directly contradicts existing ordinance

19.01.11 Firearms--Weapons.
No person in any park shall:
(1) Carry onto, possess or discharge a shotgun, rifle, pistol, air rifle, sling shot, air gun, archery equipment, firearms or any other weapons or device that discharges projectiles either by air, explosive substance or any other force. This shall not apply to those law enforcement officers acting in their official capacity;
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I have attached the proposed ordinance as a jpeg. Sorry. If someone else has a better way of doing this, please let me know.

Also, in my opinion, they could just have 9.02 and 9.045.j. That would allow them to ban discharge of firearm and would allow the city to prosecute any 'state' violations as the state law is changed.

scan0003.jpg
 
paul@paul-fisher.com

paul@paul-fisher.com

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OK. Here's the email I sent to the alderman I was working with:
Julie,

It was nice meeting you.

In reviewing the proposed ordinance, there are a couple of things that are wrong and I have a couple suggestions.

1. 9.045.a basically says I can have a firearm in a case in a city park. If you were to enact this, it would be in violation of Elkhorn's park ordinance 19.01.11 Firearms--Weapons.No person in any park shall:
(1) Carry onto, possess or discharge a shotgun, rifle, pistol, air rifle, sling shot, air gun, archery equipment, firearms or any other weapons or device that discharges projectiles either by air, explosive substance or any other force. This shall not apply to those law enforcement officers acting in their official capacity, so 9.045.a needs to be struck or 19.01.11 needs to be changed.
2. 9.045.f goes too far. The state statute 941.237.3.g says "The possession or use of a handgun on the premises if authorized for a specific event of limited duration by the owner or manager of the premises who is issued the Class “B” or “Class B” license or permit under ch. 125 for the premises."

What that means is that if I have specific permission from the owner or manager of the establishment to carry my handgun in the establishment, as long as it is for a 'specific event of limitted duration', for example, if I have my gun club have lunch, it would be legal.

Here is my suggestion. Since the gun laws of WI are in a state of flux and due to the McDonald vs Chicago ruling plus the imminent replacement of Governor Doyle, the thing that would cause the city to enforce all state laws would be to only include proposed section 9.02 and 9.045(j). and change 19.01.11 to remove handguns.

Anything else will require Elkhorn to revisit this ordinance every time a new court ruling or state law is changed.

Please do not hesitate to let me know if you have additional questions. I would be more than willing to talk to either your committee or the council as a whole.



--
Paul L Fisher
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Shotgun

Shotgun

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I see multiple potential problems with it.

9.045

c. Not similar to any state statute.
d. Not similar to any state statute. It's similar to an administrative code rule, but 66.0409 says it must be similar to a statute, not to admin code.
f. I don't believe they can extend the prohibition to the entire building, e.g., in a hotel the prohibition applies only to the bar area. Secondly, the proposed ordinance doesn't say handguns specifically, therefore it's more stringent than state statute.
k. Might go contrary to case law, i.e., Hamdan which allows concealment under certain circumstances.
 
paul@paul-fisher.com

paul@paul-fisher.com

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Finally 'legal' to OC in Elkhorn

OK, I know it was before, however, the ordinance is sort of fixed. They didn't fix everything but now at least OC is 'legal'

http://library.municode.com/ordinances/14273/Ordinance%20No.%2010-10.pdf

The issues still are:

1. They didn't put into the new ordinance the provision for a class-b establishment being able to give permission of OC.
2. They contradict an existing ordinance on city park 'possessing'. The new ordinance says 'unloaded and encased' where the par ordinance says no firearms at all.

Anyhow, one small victory for us. I think I'll go OC downtown today!
 
D

Doug Huffman

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Elkhorn Code 9.045.f, specifying "In any building structure or area that has a Class..." is more stringent than the Statute referenced that, itself, says, "... on any premises for which a Class ..." A premise may be a subset/part of a building. For instance, a building may contain a business licensed for consumption of alcohol and a barbershop. The bar cannot control the barbershop. Your Code excerpt makes no mention of severability, I-ANAL but the theory of estoppel (by convention) may apply.

As I understand it, if an integral part of a law/contract is invalid then the law is invalid absent the assertion of severability allowing each part to stand on its own without reliance on mistakes.
 
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paul@paul-fisher.com

paul@paul-fisher.com

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Doug, I had verbally and via email suggested that they just put a discharge provision in the new ordinance and leave the state law for the rest but you can see what they did with that suggestion.
 
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