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Thread: Eastlake Fishing Pier off Limits to carriers of firearms?

  1. #1
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    Eastlake Fishing Pier off Limits to carriers of firearms?

    I was asked to leave the Eastlake Fishing Pier by a man claiming to be from the Eastlake Port Authority. I told him what I thought about that in no uncertain terms and left of my own accord. He called the Eastlake PD and I was stopped later down the street and they told me that I could not carry there either. I'm kind of flustered by the whole thing.

    They charge non-residents to fish there, but not residents. I'm a resident.

    I sent this letter to the police and city authorities.

    Dear Sirs,

    It has come to my attention that individuals supposedly operating under the authority of the Eastlake Port Authority have been taking the law into their own hands.

    On 08/04/2010 I was accosted by an individual claiming to represent the Eastlake Port Authority. He refused to identify himself and did not offer any credentials upon request. I was openly carrying a firearm while fishing and he told me that I was to leave the premises at once.

    I informed him that he was mistaken and that there is no legal basis for him asking me to leave the premises. I'm an Eastlake resident and I was fishing with my girlfriend. I did not want to have an argument, so I left of my own accord.

    There is no current signage stating that the carry of firearms is unlawful at the seawall.

    I was later stopped in my vehicle by Patrolman Will L**** and he notified me that I am not to carry my firearm at the Eastlake Fishing Pier. I informed him that it was public property under lease to the city and that I'm allowed to carry there. He did not agree and we went our separate ways. He is a very professional officer and was at all times polite and sincere.

    Under the Ohio Revised code (9.68) the carry of firearms on publicly owned or leased lands is only governable by the laws of the State of Ohio and Federal law. No local ordinance can restrict the carry of firearms openly or concealed on publicly owned or leased lands.

    If a challenge were presented to this "rule", no firearms at the seawall/fishing pier, in court it would surely be found to be unconstitutional and the City of Eastlake would be responsible for all costs and reasonable attorney fees incurred in bringing legal action. This has already been ruled on by the Ohio Supreme Court in OFCC vs Clyde. Link to: http://www.supremecourt.ohio.gov/PIO/su ... 070960.asp

    Also, when any government official uses the authority of their office to deny a civil right to a citizen they are personally liable for deprivation of rights under color of law. This is a Federal Offense: http://www.law.cornell.edu/uscode/18/us ... -000-.html

    I ask that this issue be resolved before involving my legal counsel becomes necessary.

    I appreciate your prompt response in this matter,

    Sincerely,

    Bryan L******

    Link to ORC 9.68 http://codes.ohio.gov/orc/gp9.68

  2. #2
    Accomplished Advocate color of law's Avatar
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    Eastlake ordinance

    539.07 FIREARMS.

    No person, except authorized law enforcement officers, shall carry firearms of any kind or description in or upon any park grounds or other public lands.

    No person shall discharge any firearm on any park grounds or other public lands.

    No person shall carry air rifles, sling shots or any missile throwing device in and upon park grounds or other public lands.

    No person shall set off any fireworks or other explosive substance in and upon park grounds or other public lands except by specific written permission granted by the Director of Public Safety in accordance with the provisions of Section 549.10.

    (Ord. 1967-87. Passed 4-11-67.)

  3. #3
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    Preempted

    This ordinance is preempted by Ohio Rev. Code 9.68 and is void as a matter of state law. However, there is the case of City of Cleveland v. State of Ohio pending before the Ohio Supreme Court, which will be argued in October and will more definitively resolve this issue.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  4. #4
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    I'll be sure to let everyone know how this works out.

  5. #5
    Accomplished Advocate color of law's Avatar
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    Preempted?????

    Preempted???? It is still on the books.

    Well, we don't enforce it just does not get it.

    Cops are not presumed to know the law.

  6. #6
    Regular Member Deanimator's Avatar
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    Quote Originally Posted by color of law View Post
    Preempted???? It is still on the books.

    Well, we don't enforce it just does not get it.

    Cops are not presumed to know the law.
    Eastlake's law is like a restrictive covenant in a deed. It can forbid sale to Jews, Blacks or women. It's also COMPLETELY unenforceable in law. Likewise any preempted law.

    Police have the same DUTY to know the law that anyone else has. Based on a lot of documented examples, duty and actual knowledge are quite different animals. That still doesn't negate their LEGAL duty. Personally, I have no more sympathy for a cop who's too lazy to know the law than for any citizen. If you can't be bothered to know your job, I can't be bothered to waste my tax money paying you to screw it up.

  7. #7
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    Conversation with the acting Chief:

    I just got off of the phone with Lt Doyle, the acting Chief of Police for the City of Eastlake. He is of the opinion that open carry is only used to "draw attention" to ourselves. I told him that all I wanted to be was left alone by governmental authorities. He said that if I want to be left alone, I should concealed carry. Which contradicts his own argument that the Seawall is private property, which it isn't, and that they can regulate carry as they see fit. I told him that it's public property and they have no authority to force people to conceal their arms.

    I let him know that under ORC 9.68 we have the right to carry arms openly and that right shall stand unmolested by any local governmental authority while on public lands. He was not of the same mind. He basically said it would be up to the courts if something were to happen.

    I let him know that I had already had a similar incident the next city over in Willowick in 2008 and that it resulted in an officer reprimand. He didn't seem to care.

    I asked him what action they would take when next week there are 55 people fishing while openly carrying firearms. He stated that "we would deal with that situation if it arises". I told him I didn't want to stage a protest and that I wanted to avoid all media attention and that I just want to solve this locally. He wouldn't have any of it. He's convinced that open carry is all about "Look at me! Look at me!"

    He made a smart comment at the end our conversation saying "I know you're recording this". I know he was.

    So I ask you my friends:

    Are you ready to go fishing?

  8. #8
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    I'm not fisherman & do no know off the top of my head where this area is.

    Are you gonna post this on the OFCC open carry subforum? There may be some willing to go fishing with you.

    I for one am fed up with the PD's who are supposed to enforce the laws making it up as they go.

    Also, do they have a law director to talk to?
    Last edited by rottman43055; 08-09-2010 at 03:09 PM.

  9. #9
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    I'm tapped out on trips to the NE corner for a while (and let's face it, I'm not a fisherman) but I'll be watching this one.

  10. #10
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    It's posted on the OFCC CPZ subforum.

    http://www.ohioccwforums.org/viewtopic.php?f=20&t=45064

  11. #11
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    Email conversation with Eastlake Law Director:

    ORC 4582.06: The Eastlake Port Authority may not make any rule which is in conflict with at general law

    Dear Sirs,

    I've previously sent a letter asking for resolution on both the Port Authority and Eastlake Police effecting a ban on the carry of firearms at the Eastlake Seawall/Fishing Pier. I have not recieved any response whatsoever and my phone conversation with Lt. Tom Doyle was fruitless.

    The Eastlake Port Authority has no authority to effect a rule or law which is in conflict with a general law (such as ORC 9.68). State law specifically preempts local law and rules in respect to the regulation of the carry of firearms openly or concealed. This can be found in the Ohio Revised Code 4582.06 and ORC 9.68.

    The text of this law states that the only way firearms can be regulated by local government is in regards to discharge of firearms and zoning regulations for commercial firearms sales.

    Per ORC 9.68 The City of Eastlake and the Eastlake Port Authority do not have the authority to enforce a ban on carrying firearms at the Eastlake Seawall or any other public lands.

    It is conceivable that the Eastlake Port Authority and the City of Eastlake were not aware at the time this "rule" was put into effect that it was preempted by the laws of the State of Ohio. Consider this letter to be notification that the City of Eastlake and the Eastlake Port Authority are not in compliance and will not be able to claim ignorance in the future on such matters.

    Now that the Eastlake Port Authority and the City of Eastlake are aware of the conflict, any further enforcement would constitute a knowing violation of law that will expose not only the Port Authority to civil liability but also each individual board member to personal liability as well (per ORC 4582.031).

    I ask that a representative of the Eastlake Port Authority and the City of Eastlake respond in writing to this inquiry stating that the so-called "firearms ban" is not in effect and will not be enforced by employees of the City of Eastlake or the Eastlake Port Authority.

    Your prompt response is appreciated in this matter.

    Sincerely,

    Bryan L******
    4582.031 Civil immunity.

    In addition to any immunity from civil liability that is conferred upon a director by any other provision of the Revised Code or by decisions of Ohio or federal courts, no member of the board of directors of a port authority shall be personally liable for any monetary damages that arise from actions taken in the performance of his official duties, except for acts or omissions that are not in good faith or that involve intentional misconduct or a knowing violation of law, or any transaction from which the director derived an improper personal benefit."


    4582.06 Port authority powers and duties.

    (A) A port authority created in accordance with section 4582.02 of the Revised Code may:

    (14) Adopt rules, not in conflict with general law, governing the use of and the safeguarding of its property, grounds, buildings, equipment, and facilities, safeguarding persons and their property located on or in port authority property, and governing the conduct of its employees and the public, in order to promote the public safety and convenience in and about its terminals and grounds, and to maintain order. Any such regulation shall be posted at no less than five public places in the port authority, as determined by the board of directors, for a period of not fewer than fifteen days, and shall be available for public inspection at the principal office of the port authority during regular business hours. No person shall violate any lawful regulation adopted and posted as provided in this division."


    9.68 Right to bear arms - challenge to law.

    (A) The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.

    (B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.

    (C) As used in this section:

    (1) The possession, transporting, or carrying of firearms, their components, or their ammunition include, but are not limited to, the possession, transporting, or carrying, openly or concealed on a person’s person or concealed ready at hand, of firearms, their components, or their ammunition.

    (2) “Firearm” has the same meaning as in section 2923.11 of the Revised Code.

    (D) This section does not apply to either of the following:

    (1) A zoning ordinance that regulates or prohibits the commercial sale of firearms, firearm components, or ammunition for firearms in areas zoned for residential or agricultural uses;

    (2) A zoning ordinance that specifies the hours of operation or the geographic areas where the commercial sale of firearms, firearm components, or ammunition for firearms may occur, provided that the zoning ordinance is consistent with zoning ordinances for other retail establishments in the same geographic area and does not result in a de facto prohibition of the commercial sale of firearms, firearm components, or ammunition for firearms in areas zoned for commercial, retail, or industrial uses.

    Effective Date: 03-14-2007"

    His response:

    To: Bryan
    Subject: RE: Eastlake Fishing Pier: Banning the carry of firearms in violation of ORC 9.68

    Mr. L******: I am in receipt of your email below. Would you kindly advise as to whether you make your objection as a licensed concealed carry person. This will help me evaluate the matter more fully. The status of that particular property is rather complicated and the possession of firearms may ultimately be determined to be prohibited thereon. With information about your concealed carry status, I can better evaluate your concerns.

    That aside, you referenced a conversation with Lt. Doyle. Please understand that Lt. Doyle has no authority to provide you the city's position in response to your concern or to otherwise provide you counsel on the issues you raised.

    Thank you for your attention to this matter.

    Joseph Randolph Klammer, Esq.

    My Response:

    Mr Klammer,

    I appreciate your prompt response. As far as my status is concerned as a concealed handgun licensee (CHL), I don't believe that is relevant.

    Carrying openly does not require a license in the State of Ohio and falls under the protections spelled out under ORC 9.68.

    I make my objection without regard as to whether I'm a CHL holder or not.

    Once again, I thank you for your speedy reply.

    Bryan L******
    Last edited by rDigital; 08-12-2010 at 10:48 AM.

  12. #12
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    Very good job rDigital

  13. #13
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    Latest response from Eastlake Law Director:

    Latest response from Eastlake Law Director:

    Mr. L******: Thanks first for the pleasantness of your response and then, of course, your answer to my inquiry. I appreciate your position. Accept this as a response to provide you a short status of my position on this matter. The ownership and right to use the property is rather complicated. As I understand, the property is that of CEI and use of the property has been extended as a courtesy to the city. I expect that CEI will have a position either way on the possession of firearms on the property. I hope to learn more about its position shortly. I am presently evaluating the right to openly possess a firearm on the property in light of the various property interests in the parcel. That said, I suspect you are aware of the prohibitions against a concealed possession of a firearm absent compliance with Ohio permitting.

    With that, I thank you for your patience while I evaluate this matter and ask that you remain faithful to the laws of Ohio with regards to possession of a firearm. I, of course, cannot give you legal advice on that issue, however.

    Thanks again.

    Joseph Randolph Klammer, Esq.

  14. #14
    Regular Member usamarshal's Avatar
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    Just curious on what the outcome of this was? After the ruling in Cleveland I'm guessing its a done deal.

  15. #15
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    The out come was about 15 of us showed up at the breakwall with a reporter from some tv station that never aired the protest. However no LEO showed up or challenged us on our Constitutional rights to open carry on public property. More OC's to follow.

  16. #16
    Regular Member usamarshal's Avatar
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    Nice!!!!

  17. #17
    Regular Member 1MOA's Avatar
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    Again?

    Let me know when your going fishing again... i'm in!

  18. #18
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    I am mixed in my opinion on this but have finally come to the conclusion that the police should enforce all local laws even when they conflict with state or federal laws. I have arrived at this because I am tired of all the local (towns) governments passing some all encompassing law and letting state law work out the details. For instance in the city I live in there is a law that says that it is illegal for anyone to fire a gun, bow and arrow or slingshot inside the city limits. This law makes no exception for LEO, self-defense or any other case including the archery ranges in sporting good stores or even starter pistols at track events. They just pass a law and then say "well that exception is covered by some other law and we will selectively enforce it".

    I think that the police should enforce all local laws and then when they are caught falsely arresting someone the city should have to pay dearly untill they start taking their job serioulsy. I know that this is a screwed up situation but local governments have got to start taking their jobs seriously and pass meaningful laws rather than these BS laws that they do right now and hope no one calls them on it or be allowed the selective enforcement of them. LEO's cannot be expected to know every law in the country and which ones conflict with which, that is the job of those making the laws and if there is a possibility of it conflicting then don't pass it. The average cititzen should not have to take a government to court to show them that they have passed an illegal law but of they do then they should be rewarded.

    Just my rambling thoughts.

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