Why should communities modify preempted ordinances?

grinner · Sep 3, 2010

I'm starting the process of getting the Village of Pewaukee to modify our local ordinance that prohibits carry of a loaded firearm.

I expect their response to be, "What does it hurt to have an antiquated ordinance on the books? It's expensive to change it." I'll need to explain why changing the ordinance is beneficial to the community. Here are my thoughts:

1) Enforcement of firearms violations in the Village can be problematic while the current wording makes this ordinance unenforceable under State Law.

2) A person who references the ordinance to understand his/her right to carry a firearm in the Village will receive incorrect information.

3) Someone who witnesses a person legally carrying a firearm in the Village may incorrectly believe this person is breaking the law.

What are your thoughts on these reasons, and does anyone have any reasons that might be more compelling to a Village President / Board?

Wisconsin Carry Inc. - Chairman · Sep 3, 2010

I think you might be stating this in #1, but removing ordinances that can't be enforced because of preemption is important because:

The number one reason I'd give to the municipality would be:

-if a new officer, or untrained officer didn't know about the preemption law, and someone just pointed out a local ordinance and the officer tried to enforce it that could expose the village to legal repercussions (civil suits) etc. Those could be much more costly than the cost of removing the ordinance

-they have an obligation to their residents to have clear and only enforceable ordinances on the books. Not every resident would be aware of preemption, but morally a resident who went to look up local ordinances should not be incorrectly led to believe they couldn't exercise a right they have a lawful ability to.

------

Now having said that, for OUR purposes, a city may or may not want to act using this justification.

We want them removed for the reasons above in addition to the fact that if preemption was ever removed from the state statutes. If a future state legislature got rid of preemption, instantly those local ordinances would be enforceable (constitutional challenges not withstanding)

If we get them removed, then if preemption goes away, a city would have to go through the mechanics of reintroducing and reestablishing them. Putting in a layer of accountability and responsibility to the people who would be currently holding that office and their constituents who elected them.

Doug Huffman · Sep 3, 2010

Why should communities modify preempted ordinances? Because it is the right thing to

grinner said:
I'm starting the process of getting the Village of Pewaukee to modify our local ordinance that prohibits carry of a loaded firearm.

I expect their response to be, "What does it hurt to have an antiquated ordinance on the books? It's expensive to change it." I'll need to explain why changing the ordinance is beneficial to the community. Here are my thoughts:

1) Enforcement of firearms violations in the Village can be problematic while the current wording makes this ordinance unenforceable under State Law.

The Village cop is not likely charged with or paid to enforce State Law. Their ordinance does not depend on State Law for enforcement. A world without "problematic" challenges is a dull one indeed

grinner said:
2) A person who references the ordinance to understand his/her right to carry a firearm in the Village will receive incorrect information.

The Village is empowered to deny rights in the name of the community's well being. See Village Powers in the Statutes.

grinner said:
3) Someone who witnesses a person legally carrying a firearm in the Village may incorrectly believe this person is breaking the law.

The Village ordinance is as correct as is any state statute that you believe contradicts federal law. See Home Rule in the Wisconsin Statutes.

grinner said:
What are your thoughts on these reasons, and does anyone have any reasons that might be more compelling to a Village President / Board?

They are politician legislators. They are compelled by political force and not by reason or law. Been there, got the hair-shirt and wore it.

grinner · Sep 3, 2010

Doug, I agree with you entirely. It's not easy to come up with motivations for a community board to act on this. Politically, relatively few people care about firearms ordinances, or if they do, they're just as likely to be on the other side.

I'm going to give this a shot. Before I do, I want to be able to make the most motivating argument I can, as weak as that might turn out to be.

Doug Huffman · Sep 3, 2010

Your argument is precisely equal to one vote however rational and well phrased.

grinner · Sep 3, 2010

Doug Huffman said:
Your argument is precisely equal to one vote however rational and well phrased.

The Village President and Trustees are elected, no doubt. But I believe they have motivations beyond being re-elected. And I don't mean altruistic motivations. I mean selfish ones common to human nature, such as pride or seeking praise or controlling things or whatever. I need to tap into these motivations, as well as the political one, to motivate action.

Other community Boards have changed their ordinances to align with state statutes. They did this because an individual resident somehow motivated them to do so. I'm looking for creative solutions here before I dive in.

By the way, I looked up Home Rule. Interesting. 1924 amendment that permitted cities and villages to determine their local affairs and government, subject only to other provisions of the Wisconsin Constitution and to legislative enactments of statewide concern that uniformly affect every city and village.

The purpose of 66.0409 is to create uniformity of firearms regulations among all WI communities. Seems to pass the layman's check of validity, which is all I need for this purpose. I'm not looking for a watertight position to argue in a law school faculty lounge. I'm looking to motivate a Village Board of Trustees.

aadvark · Sep 3, 2010

Wisconsin Law 66.0409 spells out Preemption on the subject matter of Firearms.
Preemption is Preemption, period.

Doug Huffman · Sep 3, 2010

grinner said:
The purpose of 66.0409 is to create uniformity of firearms regulations among all WI communities.

I've seen that statement before here on OCDO-WI (and "preemption") without a citation to authority - "legislative intent"? Village Powers are required to regulate discharge, making some municipalities more uniform than others.

Doug Huffman · Sep 3, 2010

aadvark said:
Wisconsin Law 66.0409 spells out Preemption on the subject matter of Firearms.
Preemption is Preemption, period.

Yep. Wisc. Stats. uses "preemption" when the legislature thought it appropriate, but not in § 66.0409 - maybe not even in Chapter 66, Subchapter IV, REGULATION that contains § 66.0409. That might be some indication of legislative intent.

bnhcomputing · Sep 3, 2010

66.0409(2) Except as provided in subs. (3) and (4), no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.

As I read and understand this, it would be against the law for any city, village, town, or county to enact an ordinance or adopt a resolution that is "more stringent than, a state statute."

66.0409(4)(b) If a political subdivision has in effect on November 17, 1995, an ordinance or resolution that regulates the sale, purchase, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, and the ordinance or resolution is not the same as or similar to a state statute, the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995.

As I read and understand this, "the ordinance or resolution shall have no legal effect and the political subdivision may not enforce the ordinance or resolution on or after November 18, 1995," unless the ordinance is "the same as or similar to a state statute."

So I carry everywhere I go except those places prohibited by state law. If a local LEO decides to enforce or threaten to enforce an ordinance that is more restrictive than state law, I will sue them and I am certain I will win. I have statements from multiple municipal attorneys informing me that those parts of the local ordinances prohibiting carry by anyone other than a police officer are unenforceable, have been since 1995, and have not been enforced since 1995.

I will accept the legal opinion of the many attorneys I have talked to and carry on.

Local municipalities need to remove these ordinances or face civil litigation.

Doug Huffman · Sep 3, 2010

bnhcomputing said:
Local municipalities need to remove these ordinances or face civil litigation.

I-ANAL I believe that civil litigation applies to tortious acts, injuries suffered.

grinner · Sep 3, 2010

The point of my thread was to find motivations for communities to take ordinances off their books relating to OC. I'm going to make the argument to my local Board of Trustees and I need to find MOTIVATIONS for THEM to CARE.

I do find all of this discussion interesting. But if we can focus for a bit on this specific topic, that would help me take my next step in the Village of Pewaukee.

Edit: Thanks for the on-topic posts so far, and for the slightly off-topic posts that are equally interesting. I don't mean to imply that what has been posted so far hasn't been useful. I just want to invite further on-topic discussion.

bnhcomputing · Sep 3, 2010

1. I think you already touched on it and so did Nik, IF an officer tried to enforce such an ordinance they (municipality) could face litigation.

2. It provides FALSE/misleading information to the public concerning the free exercise of a civil right. It actually deters the free exercise of the right, which may be a federal crime.

My opinion, use as you see fit...

paul@paul-fisher.com · Sep 3, 2010

Here's the email I sent to the Town of Burlington

I saw in the newspaper an issue with one of your residents and the chief of police regarding his right to open carry in public.

You need to consult with your corporation counsel to verify this, however, your resident is right. The state of Wisconsin does not allow any municipality to have a more restrictive firearm law than the state. In most cases, the only thing a municipality can regulate is the discharge of a firearm. The carrying of the firearm is the pervue of the state.

State statute 66.0409 is the statute that relates to preemption.

In addition, the attorney general of the state of WI has issued a memo that declares that solely openly carrying a weapon does not rise to the level of disorderly conduct. If a person is walking down the street with a properly holstered weapon and is doing nothing illegal, even if the police get a man with a gun call, the police cannot even stop and question the person with a gun unless the police believe that the person has or is about to commit a crime, and, by the way, open carrying the gun isn't a crime so that can't be used.

Specifically, you need to change your ordinance 9.24.010 Discharging of firearms restricted. No person except a sheriff, constable, police officer or their deputies shall fire or discharge any firearm, rifle, spring or air gun within any residential zoned district in the town or have any firearm, rifle, spring or air gun in his possession or under his control unless it is unloaded and knocked down or enclosed within a carrying case or other suitable container. (Prior code § 9.02)

If you remove the words "firearm, rifle," from the part highlighted, I believe your ordinance will be brought into compliance.

Please take this seriously. Other municipalities have been found civilly liable for enforcing unenforceable laws.

If I can be of any assistance in this matter, please let me know. I worked with the City of Elkhorn and got their ordinance re-worded.

http://www.wisconsincarry.org/pdf/Fi...nCarryMemo.pdf is the Attorney General memo.

--
Paul L Fisher

I have not heard anything back but this covers all the bases, exposure to litigation for wrongful arrest, etc...

Why should communities modify preempted ordinances?

grinner

Regular Member

Wisconsin Carry Inc. - Chairman

Wisconsin Carry, Inc.

Doug Huffman

Banned

grinner

Regular Member

Doug Huffman

Banned

grinner

Regular Member

aadvark

Regular Member

Doug Huffman

Banned

Doug Huffman

Banned

bnhcomputing

Founder's Club Member

Doug Huffman

Banned

grinner

Regular Member

bnhcomputing

Founder's Club Member

paul@paul-fisher.com

Regular Member