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Thread: Local Ordinance Preemption

  1. #1
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    Initial note:[/b] All emphasis in statutory quotations below is mine. I apologize for the length of this post. It contains quotes from statutes and cases that take up a lot of space. I think that it is important for us to analyze these issues to prepare for any future legal or legislative actions and to plan our daily activities of carrying. Of course, this is just my[/b] analysis. Please let me know if you disagree or have other ideas. Also, while this post analyzes the Hartford park ban, I am looking at other CT local ordinances (e.g. Bristol and New Britain) and will try to provide an analysis of those if people are interested.

    *********************************

    The issue of CT municipal ordinances that restrict carry was brought up in another thread and I thought that the topic was best served by having its own thread so I decided to start this one. I have been researching this topic (with regard to Connecticut law only[/b]) because I am generally interested in the power of Connecticut municipalities to contract our carry rights and because I am personally affected by one such local ordinance. In particular, I am restricted from carrying a firearm in any Hartford city park. I work in Hartford and often take walks around town at lunch time and after hours. I cannot, however, do this with a firearm. The local ordinance restricting carry in parks reads:

    Municipal Code City of Hartford § 26-39: Firearms and Fireworks.[/b][/b]
    It shall be unlawful [/b]for any person to discharge or have any firearms [/b]or fireworks in any park. This section shall not apply to fireworks displays by municipal authorities.

    It has been stated by some on this board that this ordinance and others like it are improper (or “illegal”) because state firearms laws “preempt[/b]” municipalities from regulating firearms. My research indicates that this is likely not true[/b], at least with respect to the regulation of where one is permitted to carry a firearm.

    As an initial matter, the concept of preemption deals with the determination of whether a regulatory body (such as the state or federal EPA) or a political subdivision (i.e. county or municipality) can properly make laws that conflict or occupy the same space as laws created by a legislative body of superior power (i.e. the federal government with respect to the EPA and the state government with respect to a municipality). I use the term “law” as short hand to mean law, regulation, or ordinance. In the state of Connecticut, regulations and local ordinances are given the power of law by statute as explained below.

    A law is said to be “preempted” when either: (1) it expressly conflicts with a law passed by the higher authority; or (2) the higher authority has expressed its intentions to occupy the entire space of regulation in question. Preempted laws cannot stand and are effectively struck down by courts as an improper regulation of legislative power.

    With that as our starting point, let’s see how the Hartford ordinance stacks up against CT firearms laws. The starting point is the state statute dealing with locations where one may carry a firearm (in this case, a pistol):[/b]

    Conn. Gen. Stat. § 29-28:[/b]
    (e) The issuance of any permit to carry a pistol or revolver does not thereby authorize the possession or carrying of a pistol or revolver in any premises where the possession or carrying of a pistol or revolver is otherwise prohibited by law[/b] or is prohibited by the person who owns or exercises control over such premises.

    At the outset, we can see that there is no express intention to occupy the entire field of regulation. In other words, the law does not say something like “municipalities may not pass ordinances that conflict with this statute.” Many other state do[/b] have statements like that in their firearms statutes and courts have rightly decided that this is an expression of preemption. We do see, however, that the state has left open the door to additional regulation by including the “is otherwise prohibited by law” language. In fact, the state has allowed some regulatory bodies to specify where firearms may be carried. See, for example, Conn. Gen. Stat. § 23-4: Regulations for preservation and protection.[/b]

    “The Commissioner of Environmental Protection may adopt regulations in accordance with the provisions of chapter 54 for the maintenance of order, safety and sanitation upon the lands under the commissioner’s control . . . .”

    The DEP has used this authority to pass the following regulation:

    Section 23-4-1. General regulations[/b]

    (c) Hunting/weapons.[/b]

    Hunting or carrying of firearms, archery equipment or other weapons, including but not limited to air rifles and slingshots, is not permitted in any state park or forest except as authorized by the Department of Environmental Protection. All carrying or use of weapons is subject to applicable provisions of the Connecticut General Statutes and regulations adopted thereunder.

    In much the same way, municipalities are granted broad powers under state law to pass laws. The particular statute (rand relevant portions thereof) of interest is:

    Conn. Gen. Stat. § 7-148: Scope of municipal powers.
    [/b]
    (c) Powers.[/b] Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes:

    (7) Regulatory and police powers.[/b]

    (H) Public health and safety.[/b]

    (viii) Preserve the public peace and good order, prevent and quell riots and disorderly assemblages and prevent disturbing noises;

    (xi) Provide for the health of the inhabitants of the municipality and do all things necessary or desirable to secure and promote the public health;

    (xii) Regulate the use of streets, sidewalks, highways, public places and grounds for public and private purposes;

    (xiii) Make and enforce police, sanitary or other similar regulations and protect or promote the peace, safety, good government and welfare of the municipality and its inhabitants;

    (xvi) Regulate, on any property owned by the municipality, any activity deemed to be deleterious to public health, including the lighting or carrying of a lighted cigarette, cigar, pipe or similar device;

    (10) Miscellaneous. (A) Make all lawful regulations and ordinances in furtherance of any general powers as enumerated in this section[/b], and prescribe penalties for the violation of the same not to exceed two hundred fifty dollars, unless otherwise specifically provided by the general statutes. Such regulations and ordinances may be enforced by citations issued by designated municipal officers or employees, provided the regulations and ordinances have been designated specifically by the municipality for enforcement by citation in the same manner in which they were adopted and the designated municipal officers or employees issue a written warning providing notice of the specific violation before issuing the citation;

    You can see that I took out particular sections of this statute. These are the ones that I think could be the foundation of a regulation constricting the right to carry a firearm. While some are a stretch, such as (xi) and (xvi), there are a couple that are certainly possible such as (xii) and (xiii). Regardless of how strong the argument for each is, you can bet that a municipality would argue that they all give it the power to regulate the carry of firearms. Also, (10) grants the municipality to make lawful regulations that essentially adhere to the spirit of the powers granted. This is the Connecticut analogue of the federal constitution’s “necessary and proper clause” which expands the scope of powers beyond those expressly stated.

    So at this point, we have a state law (§ 29-28) that does not expressly occupy the entire field of regulation and even provides for an open ended constriction of the right granted (i.e. “is otherwise prohibited by law”). The Hartford ordinance regulates the same field of conduct but does not expressly conflict. In fact, it looks like Hartford has passed this regulation in accordance with the powers granted it by the state and applies it through § 29-28 which expressly permits a restriction on carry where it “is otherwise prohibited by law.[/b]”

    Accordingly, it looks like the Hartford ordinance is not preempted by state law and is proper[/b].

    There is some case law on this topic that is relevant here and I will keep it brief (I know - too late). Much has been said about a 1994 case from the Connecticut Supreme Court called Dwyer v. Farrell[/i], 193 Conn. 7 (1994).

    In that case, a person, attempting to sell a handgun from his house challenged the propriety of a New Haven municipal ordinance that placed two important and substantial restrictions on the sale at retail of handguns which most residents of the city could never overcome: (1) that the seller be a dealer, and (2) that the sale occur on premises located in an area zoned as a business district. There was virtually no way for him to have his residence rezoned as a business district and, thus, could not sell his handgun despite complying with all applicable state law on the topic.

    The court held that “by placing these restrictions on the sale of handguns, the ordinance effectively prohibits what the state statutes clearly permit. Nor do the defendants suggest any practical means available to either plaintiff of conforming to the ordinance.”

    Of particular importance to the analysis here, the court stated:
    “The fact that a local ordinance does not expressly conflict with a statute enacted by the General Assembly will not save it when the legislative purpose in enacting the statute is frustrated by the ordinance. Here the New Haven ordinance removes an entire class of persons as potential sellers of handguns at retail. The state permit is rendered an illusory right because a casual seller residing in a nonbusiness zone can have no real hope of ever conforming to the local ordinance[/b]. In this respect the local ordinance conflicts with the legislative intent as expressed in the applicable statutes. The city has removed a right that the state permit bestows and thus has exceeded its powers.”
    So the court’s holding rested on the fact that the permit to sell[/b] (not to carry as we are talking about here) a handgun, which was covered state law, was effectively nullified by the municipality. Since this cannot stand, the court held that the New Haven ordinance was preempted and thus nullified by controlling state law.

    It is interesting to note, however, that the court also left the door wide open for other restrictions not dealing with the particular permit to sell that was at issue in that case. In footnote 8, the court stated:

    In Connecticut Theatrical Corporation v. New Britain[/i], 147 Conn. 546, 163 (1960), a case relied upon by the defendants, the city required movie theater operators to post a police officer during every performance, a requirement not imposed by the state agency. We upheld the ordinance because the ordinance was consistent with the purposes of the state regulations: promoting public safety[/b]. Unlike the present ordinance, the New Britain ordinance could be complied with without undue hardship. The New Haven ordinance imposes an insurmountable burden on a person desiring to sell a pistol or revolver at retail. It is permissible to regulate in a manner truly consistent with state law; it is quite another matter, however, to prohibit totally that which state law permits[/b].”
    I added a lot of emphasis to that block quote because it stands for two important propositions:
    (1) a municipal ordinance fashioned to promote public safety is, by statute, generally allowed; and
    (2) a municipality may restrict a right given under state law so long as it does not totally prohibit the activity.

    What is left then? Well, we could argue that the Hartford ordinance frustrates a fundamental right granted under § 15 of the state constitution but that would likely not fly since ordinances regulating other fundamental rights, such as speech (such as parades and protests), have been upheld by the state Supreme Court.

    My unfortunate conclusion is that the Hartford ordinance is likely legal. My hope, however, is that my analysis is flawed or that the court would analyze this question in a way that leads to the opposite result. Please let me know what you think.

  2. #2
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    Your reasoning looks pretty sound to this non-lawyer and given that we don't have in our state statutes specific preeemption from local more restrictive ordinances. So that is something we should get a sympathetic legislator to propose modifications to the statute to include state-wide preemption.

    If New Haven decided in the interests of public safety that no firearms could be carried on Friday and Saturday nights because that's when most of the trouble happened in New Haven - that would probably be legal too under the statues that allow for things in accordance with public safety.

    Thanks for the analysis.

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    GoldCoaster wrote:
    If New Haven decided in the interests of public safety that no firearms could be carried on Friday and Saturday nights because that's when most of the trouble happened in New Haven - that would probably be legal too under the statues that allow for things in accordance with public safety.
    I do not think that we can go that far with this analysis. The court's statements in the Dwyer case indicate that a complete bar to lawful activity -- and effective nullification of a state statute -- necessarily gives rise to preemption. A city wide ban on carrying -- even if it only at certain times -- may well go beyond what is allowable. Accordingly, I think that the more egregious bans put forth by some other municipalities are likely void as a result of being over-broad. I am trying to find some time to look into this issue.

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    GunTotingLawyer - Thank you for the analysis, I'm sure many here on this board have been/are wondering about such laws. The need to address our lack of preemption in the legislature is, in my opinion, one of our more pressing needs in CT.

    I, for one, would appreciate hearing your analysis of the laws that, like New Britain's ban on carrying concealed weapons, would seem to place restrictions on the method of carry. I suppose the question is whether the state has signalled its intent to occupy such regulation.

    If I may, I'll add to your list a similar local ordinance in New London:

    Sec. 14-11. Carrying concealed weapons, discharging firearms. No person shall carry any concealed weapon in said city nor shall any person discharge any species of firearms in any street of said city, without authority of the council. (Ord. of 3-5-45, § 9)
    http://library6.municode.com/default...iew/14537/1/78

    or the page with full frames:

    http://library6.municode.com/default...ction=whatsnew


    Thanks again for your work on this!

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    lcatct wrote:
    .

    If I may, I'll add to your list a similar local ordinance in New London:

    Sec. 14-11. Carrying concealed weapons, discharging firearms. No person shall carry any concealed weapon in said city nor shall any person discharge any species of firearms in any street of said city, without authority of the council. (Ord. of 3-5-45, § 9)
    http://library6.municode.com/default...iew/14537/1/78

    or the page with full frames:

    http://library6.municode.com/default...ction=whatsnew


    Thanks again for your work on this!
    So in the town of New London you MUST carry open?
    States dont have rights. People do.

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    GunTotingLawyer,

    Thanks for posting such an in depth analysis of this issue. It's nice to see some of my researched confirmed by someone actually in the legal profession. I would also like to hear your thoughts on the New Britain and New London ordinances. I posted back in February, using some of these same reasonings, that the New Britain ban on concealed carry was not preempted by state law since the state made no attempt to regulate the method of carry.

    Thanks again for all your hard work!

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    mrjam2jab wrote:
    So in the town of New London you MUST carry open?*
    New Britain and New London both, apparently. The New London one is new on me.

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    According to the NRA, "Connecticut, Massachusetts, New Jersey, and New York have preemption through judicial ruling, not statute]Connecticut, Massachusetts, New Jersey, and New York have preemption through judicial ruling, not statute."

    The enactment of a statewide license to carry a gun implies what is known as "field preemption." As mutiple Virginia Attorney Generals have said in officvial opinions, "[t]he right of a citizen, with a properly issued permit, to carry a concealed handgun is considered universal within the Commonwealth, subject to limited constraints."

    Do you have any case law allowing a local gun carry ban to stand on the public streets, sidewalks, and parks of a city in Connecticut?


    It appears to me that where the Connecticut legislature has enacted a comprehensive scheme regulating gun carry, then localities are preempted from acting in this area, just as the statewide hunting regulatory scheme preempts them from regulating the sale of handguns, hunting, or the discharge of firearms:

    In Dwyer v. Farrell, 475 A.2d 257 (Conn. 1984), the Supreme Court of Connecticut considered whether Connecticut General Statutes § 29-28, which authorizes persons to sell handguns at retail if issued a state permit, preempted a New Haven ordinance that placed further restrictions on persons seeking to sell handguns. The court acknowledged that the existence of a state law does not necessarily preempt a local government from regulating the same subject matter as long as such regulation is consistent with state law. Dwyer, 475 A.2d at 260. The court stated that to determine whether a local ordinance conflicts with state law, the court must review the purpose behind the state law and measure the degree to which the ordinance frustrates the achievement of that purpose. Id. The court found that the New Haven ordinance frustrated the purpose of section 29-28 by prohibiting an entire class of persons from selling handguns that the state would have allowed. Dwyer, 475 A.2d at 261. The court found that this created an irreconcilable conflict between New Haven’s ordinance and the statute, which rendered the ordinance preempted. Id.

    See also Kaluszka v. Town of E. Hartford, 760 A.2d 1282 (Conn. Super. Ct. 1999) (finding that a municipal ordinance regulating the discharge of firearms had the effect of regulating hunting, which was preempted by the state’s extensive hunting laws).




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    gluegun wrote:
    the state made no attempt to regulate the method of carry.
    Not true - for starters, unlike most states, the Connecticut legislature has enacted a statewide permit scheme requiring permit to carry guns openly or concealed; it also has enacted a state wide scheme of gun carry bans in certain places.

    This looks like a comprehensive statewide scheme of regulation to me that would be thwarted if localities could ban gun carry in public fora like streets, sidewalks, and parks at will.

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