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Thread: Carry in Jails

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    Carry in Jails

    So I was reading the a memo regarding the City Council Meeting from the City Attorney in Portland and it quoted No carry in Courthouses, Jails, School Grounds, Augusta. The law it posted for Guns Prohibited in Jails is 17-A M.R.S.A §767. So I looked up that law.

    The law does not say that carry into a jail is a crime. Only that conveying or attempting to convey it to a prisoner, or being in possession of it while a prisoner is a crime. I would read this to mean that carrying to the open parts of the jail, such as when going to the jail to bail someone out would not be a crime, and since it's not regulated by the state, it cannot be prohibited by the jail due to state preemption.

    I would also conservatively say that if you were visiting a prisoner and had access to them, then having the pistol on you could give the prisoner means to take it, and a jury may convict you for conveying it to them by making it available for them to take.

    In conclusion. My (non-lawyer) opinion on the matter is that as long as you don't have access to a prisoner, and aren't one yourself, you can carry into a jail in Maine and they cannot legally stop you from doing so.

    Here's a link

    §757. Trafficking in prison contraband

    1. A person is guilty of trafficking in prison contraband if:
    A. That person intentionally conveys or attempts to convey contraband to any person in official custody; or [1989, c. 706, §2 (AMD).]
    B. Being a person in official custody, he intentionally makes, obtains or possesses contraband. [1975, c. 499, §1 (NEW).]
    [ 1989, c. 706, §2 (AMD) .]
    2. As used in this section, "official custody" has the same meaning as in section 755. As used in this section, "contraband" means a dangerous weapon or anything that a person confined in official custody is prohibited by statute from making, possessing or trafficking in or a scheduled drug as defined in section 1101, subsection 11, unless the drug was validly prescribed to the person in official custody and was approved for use by the person pursuant to the procedures of the custodial agency.
    [ 2009, c. 608, §6 (AMD) .]
    3. Trafficking in prison contraband is a Class C crime.

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    Law enforcement and corrections officers have their firearms removed and secured when entering jails and prisons.

    VISITOR APPLICATION
    Last edited by Maine CWP Training; 09-17-2010 at 07:15 AM.

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    Procedure D: Processing and Supervising Visitors

    1. Each facility shall post signage at the visitor entrance stating that firearms and other weapons are not allowed on State property, that trafficking in prison contraband is a crime, and that all visitors are subject to search. Each facility shall post visitation rules in the visiting area(s).

    2. Any visitor suspected of being under the influence of alcohol or drugs shall not be permitted to visit any prisoner and shall be required to leave facility property immediately.

    3. Adult visitors shall be required to present government-issued picture identification, such as a driver’s license, prior to admittance into the facility. Minor visitors may be required to present government-issued picture identification, such as a State of Maine identification card, or other government-issued identification, such as a birth certificate, prior to admittance into the facility. Professional visitors may also be required to present proof of professional capacity.

    4. Each facility shall develop and implement written facility specific practices for the staging, processing, and supervision of visitors. Facilities with a secure perimeter shall develop and implement written facility specific practices for accurate and complete documentation of all visits to prisoners by the use of a Visit Card for each individual prisoner and a Visitor Sign-in Sheet for each day visits are allowed. Other facilities shall develop and implement written facility specific practices for ensuring that any person who is on a prisoner’s Prohibited Visitor List is not permitted a visit with the prisoner.

    SOURCE

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    Quote Originally Posted by Maine CWP Training View Post
    Law enforcement and corrections officers have their firearms removed and secured when entering jails and prisons.

    VISITOR APPLICATION
    These are employees and therefore are subject to the terms of their employment which include disarming in this area. There is still no law that doesn't allow firearms.

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    1. Each facility shall post signage at the visitor entrance stating that firearms and other weapons are not allowed on State property, that trafficking in prison contraband is a crime, and that all visitors are subject to search. Each facility shall post visitation rules in the visiting area(s).
    Trust me, you won't get through the secure area doors.

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    Quote Originally Posted by Maine CWP Training View Post
    Trust me, you won't get through the secure area doors.
    I realize that they are going to stop you, what I'm saying is that they would be violating state law when they did stop you. Just because they can and will, doesn't make it a lawful stop.

    Nothing in State law prevents it, and State preemption would not allow them to make policy against it. Note that my belief is any area where you can come into contact with the prisoners would be off limits because you are providing them opportunity to obtain the firearm. But as long as you remain in areas where the prisoners do not have access, then you are on solid legal ground to carry into that portion of the jail. As long as you aren't attempting to convey the contriband to the prisoners, you can't be stopped from carrying.

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    Bureau of Prisons has the authority granted by the legislature and Governor to make rules. Like Parks and UM campuses...

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    Quote Originally Posted by Maine CWP Training View Post
    Bureau of Prisons has the authority granted by the legislature and Governor to make rules. Like Parks and UM campuses...
    I still contend that State Preemption would override a rule when it comes to firearms because "The State intends to occupy and preempt the entire field of legislation concerning the regulation of firearms" and the jail is usually owned by the county not the state.

    They're granted the authority to make rules, but state law also expressly forbids rules dealing with firearms. Therefore, they can make rules regarding anything else, but firearms are out of their authority.

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    I read the Statute afore-referenced and it appears NOT to Prohibit Lawful Possesion of Firearms by Citizens, and therefore, inmy Unprofessional Opinion, does not run afoul with State Law.
    It is Legal to Carry a Firearm into Jails in New Hampshire, and therefore, I would assume Maine may have followed suit.
    Unless I am mistaken..., the ONLY two Statutes that Regulate Firearms in Maine, as far as off-limit places, are: 1. CourtHouses and 2. Licensed Establishments that Serve Alcohol for consumption on-premesis.

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    Quote Originally Posted by aadvark View Post
    I read the Statute afore-referenced and it appears NOT to Prohibit Lawful Possesion of Firearms by Citizens, and therefore, inmy Unprofessional Opinion, does not run afoul with State Law.
    It is Legal to Carry a Firearm into Jails in New Hampshire, and therefore, I would assume Maine may have followed suit.
    Unless I am mistaken..., the ONLY two Statutes that Regulate Firearms in Maine, as far as off-limit places, are: 1. CourtHouses and 2. Licensed Establishments that Serve Alcohol for consumption on-premesis.
    And licensed establishments must post a sign in order for the law to be applicable. You forgot that schools are off limits. source

    Now I know that if I did try to enter a jail with an open carried pistol, they WOULD stop me, WOULD kick me out, and would probably arrest me. But as I read State law, they would be breaking the law by doing so.
    Last edited by boyscout399; 09-18-2010 at 03:44 PM.

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    State preemption does not limit the state in changing or modifying the preemption law by passage of other laws. This is effectively what they have done wherein they gave your Bureau of Prisons the ability to make their own rules.

    This is not a case you are likely to win either in court or public opinion, so why spin your wheels? There are more beneficial ways to apply your energy.

    Would like to see a cite on legal to carry in jails in NH - quite sure it is not carte blanche.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

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    Quote Originally Posted by Grapeshot View Post
    State preemption does not limit the state in changing or modifying the preemption law by passage of other laws. This is effectively what they have done wherein they gave your Bureau of Prisons the ability to make their own rules.

    This is not a case you are likely to win either in court or public opinion, so why spin your wheels? There are more beneficial ways to apply your energy.

    Would like to see a cite on legal to carry in jails in NH - quite sure it is not carte blanche.
    I'm just engaging in an academic discussion. I do not plan on pushing this issue with any jail. I'm just trying to expand my understanding of law.

    It seems to me though, that your argument about them giving the bureau of prisons authority to make their own rules would only hold weight if there wasn't another law limiting what the rule was about. Law>rule correct?

    By your logic, the state gives the right of towns to create rules about their town. Does that mean the town doesn't have to follow the preemption law? I think not. I see no difference in the bureau of prisons, the parks service, and a town or community. All are subdivisions of authority in the state.

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    Quote Originally Posted by Grapeshot View Post
    State preemption does not limit the state in changing or modifying the preemption law by passage of other laws. This is effectively what they have done wherein they gave your Bureau of Prisons the ability to make their own rules.

    This is not a case you are likely to win either in court or public opinion, so why spin your wheels? There are more beneficial ways to apply your energy.

    Would like to see a cite on legal to carry in jails in NH - quite sure it is not carte blanche.
    Quote Originally Posted by boyscout399 View Post
    I'm just engaging in an academic discussion. I do not plan on pushing this issue with any jail. I'm just trying to expand my understanding of law.

    It seems to me though, that your argument about them giving the bureau of prisons authority to make their own rules would only hold weight if there wasn't another law limiting what the rule was about. Law>rule correct?

    By your logic, the state gives the right of towns to create rules about their town. Does that mean the town doesn't have to follow the preemption law? I think not. I see no difference in the bureau of prisons, the parks service, and a town or community. All are subdivisions of authority in the state.
    When the state gives an agency, department or municipality legal permission to do something that becomes an exception or superior to prior laws. So yes preemption is indirectly circumvented that way.

    The wording of each is important and I am not that well versed on the nuances of this application for Maine, but that is my take on it.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Grapeshot View Post
    When the state gives an agency, department or municipality legal permission to do something that becomes an exception or superior to prior laws. So yes preemption is indirectly circumvented that way.

    The wording of each is important and I am not that well versed on the nuances of this application for Maine, but that is my take on it.
    but they didn't expressly give them permission to regulate firearms. They gave them permission to make rules. The law still expressly forbids them from making rules regarding firearms. So the state has given them permission to make rules regarding everything else, but expressly forbids them from making rules about firearms.

    Like I said earlier. They give permission to towns to make rules, but still expressly forbid them from making rules pertaining to firearms. The way preemption is written, I feel it would apply just as much to a town as to the parks dept, or a county jail.
    Last edited by boyscout399; 09-19-2010 at 09:46 PM.

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    Quote Originally Posted by boyscout399 View Post
    but they didn't give them permission to regulate firearms. They gave them permission to make rules. The law still expressly forbids them from making rules regarding firearms.

    Like I said earlier. They give permission to towns to make rules, but still expressly forbid them from making rules pertaining to firearms. The way preemption is written, I feel it would apply just as much to a town as to the parks dept, or a county jail.
    Virginia attorney generals have consistently held that preemption applies to municipalities, but NOT to agencies of the state. Perhaps getting someone to submit the question to your attorney general is the route to take.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Grapeshot View Post
    Virginia attorney generals have consistently held that preemption applies to municipalities, but NOT to agencies of the state. Perhaps getting someone to submit the question to your attorney general is the route to take.
    Therefore, a county or city owned jail would fall under preemption, but a state owned jail would not, correct?

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    another side question. What could be the penalty for breaking a park or jail rule? They could not charge you with a crime because you have not violated any statute. What could they charge you with?

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    Quote Originally Posted by boyscout399 View Post
    another side question. What could be the penalty for breaking a park or jail rule? They could not charge you with a crime because you have not violated any statute. What could they charge you with?
    Here is just one example:
    "She has been charged with aiding an escape and trafficking in prison contraband."
    http://www.correctionsone.com/correc...-hostage-plan/

    In Virginia agency rules do have the force of law - suspect that much the same is true in Maine.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Grapeshot View Post
    Here is just one example:
    "She has been charged with aiding an escape and trafficking in prison contraband."
    http://www.correctionsone.com/correc...-hostage-plan/

    In Virginia agency rules do have the force of law - suspect that much the same is true in Maine.
    She was charged based on a statute though. How is the statute written in VA? Was she convicted of that crime? In Maine in order for the charge of trafficking in prison contraband to be valid, you have to attempt to convey that contraband to a prisoner. It seems that if I carried in the jail, but had no access to prisoners and made no attempt to have access to prisoners, then a defense attorney could beat that charge. I have no doubt that they WOULD charge me with that same crime, trafficking in prison contraband.

    If you break a rule, with no statute violation, then what charge could they make stick that a defense attorney couldn't beat? Can they charge you with rule 72b or whatever? My understanding was that they needed a statute to charge you with.

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    Quote Originally Posted by boyscout399 View Post
    She was charged based on a statute though. How is the statute written in VA? Was she convicted of that crime? In Maine in order for the charge of trafficking in prison contraband to be valid, you have to attempt to convey that contraband to a prisoner. It seems that if I carried in the jail, but had no access to prisoners and made no attempt to have access to prisoners, then a defense attorney could beat that charge. I have no doubt that they WOULD charge me with that same crime, trafficking in prison contraband.

    If you break a rule, with no statute violation, then what charge could they make stick that a defense attorney couldn't beat? Can they charge you with rule 72b or whatever? My understanding was that they needed a statute to charge you with.
    She was arrested in the parking lot - never set foot in the secure area where she would have had direct contact with an inmate. Do not know if she was convicted, but willing to bet that she was.

    Perhaps familiarizing yourself with the rule making provisions of the Maine Administrative Procedure Act and following that trail may provide you with more definitive answers. I assure you that somewhere there is a provision for such facilities/agencies.

    As I said previously, administrative rules do have the force of law in Virginia. Example: We may carry in the General Assembly Bldg and the State Capital, but ONLY if one possesses a permit (CHP) - there is NO statute stating that; it was decided by a joint rules committee - never voted on by the legislature nor signed by the governor.
    Last edited by Grapeshot; 09-19-2010 at 11:36 PM. Reason: added
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Grapeshot View Post
    She was arrested in the parking lot - never set foot in the secure area where she would have had direct contact with an inmate. Do not know if she was convicted, but willing to bet that she was.

    Perhaps familiarizing yourself with the rule making provisions of the Maine Administrative Procedure Act and following that trail may provide you with more definitive answers. I assure you that somewhere there is a provision for such facilities/agencies.

    As I said previously, administrative rules do have the force of law in Virginia. Example: We may carry in the General Assembly Bldg and the State Capital, but ONLY if one possesses a permit (CHP) - there is NO statute stating that; it was decided by a joint rules committee - never voted on by the legislature nor signed by the governor.
    Again, just out of curiosity, what would the charge be if you did violate that rule?

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    Quote Originally Posted by boyscout399 View Post
    Again, just out of curiosity, what would the charge be if you did violate that rule?
    I honestly do not know.

    At the very least, trespassing or possession of restricted/contraband item. When there is a draw in court, the judges here generally default to "for the common good or common safety" and I do not see a judge going against the General Assemblies wishes/intent - especially since they are allowed to make such rules.

    All visitors are screened coming in - those with guns and no permits are refused entry. Interestingly enough a permit holder may OC or CC - no distinction made.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    About 30 years ago I taught two U.S. history courses at the old Maine State Prison in Thomaston. I had direct contact with the prisoners, and I wasn't allowed to even have my car keys with me. Personally, I wouldn't even go on prison property with a firearm.

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    Quote Originally Posted by starcity View Post
    About 30 years ago I taught two U.S. history courses at the old Maine State Prison in Thomaston. I had direct contact with the prisoners, and I wasn't allowed to even have my car keys with me. Personally, I wouldn't even go on prison property with a firearm.
    If you did not have direct contact with the prisoners, would they still have made you turn over your stuff? Also, my question is more pondering the LEGALITY of it, not the consequences if you did it. It seems that under the LAW, it is not a crime.

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    Again, just out of curiosity, what would the charge be if you did violate that rule?
    Violation of the "RULE" in State Parks it is a Class E Crime.
    Last edited by Maine CWP Training; 09-24-2010 at 02:50 PM.

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