Fauquier County parks firearms prohibition...

roscoe13 · Apr 29, 2011

Fauquier County has a preempted prohibition on firearms in county parks.... Sent a letter to the Board Of Supervisors today:

It has come to my attention that there is an invalid and unenforceable ordinance on the books for Fauquier County. Specifically: Sec. 16-7. Firearms, knives, weapons, fireworks and explosives, paragraph (a).

This ordinance is clearly in violation of the Code of Virginia § 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915

Please advise me as to how Fauquier County will correct this situation.

Your attention to this matter is appreciated and I look forward to your early response.

roscoe13
Catlett, VA.

Shamelessly plagiarized from jmelvin.

Will let you know if/when I get a response....

Roscoe

Blk97F150 · Apr 29, 2011

Nice job. Good luck with it!

wylde007 · Apr 29, 2011

roscoe13 said:
Shamelessly plagiarized from jmelvin.

No sense reinventing the wheel every time one of these comes up.

roscoe13 · Apr 29, 2011

So far, all I've gotten was an out of office auto-reply from the Deputy Clerk of the BOS.... She'll apparently be back Monday.

Roscoe

ed · Apr 29, 2011

roscoe13 said:
Sent a letter to the Board Of Supervisors today:

Nice job.. when I do it, I also copy the chief of Police or Sheriff, the county attorney, etc.

Also.. thanks for learning from others and taking the action instead of just posting here for "others" to fix it for you. Big Kudos for that.

Ed

jmelvin · Apr 29, 2011

roscoe13 said:
Shamelessly plagiarized from jmelvin.

Hey if you like the wording feel free to copy and paste all but my name.

Marco · Apr 29, 2011

Excellent job my friend.

TFred · Apr 30, 2011

Right in their Municode, they include a note saying that it in unenforceable.

Note: * Following the adoption of Ordinance No. 09-07, the General Assembly amended § 15.2-915 of the Code of Virginia to prohibit the County from adopting or enforcing any ordinance. . ."governing the purchase, possession, transfer, ownership, carrying, storage or transportation of firearms, ammunition, or components or combinations thereof other than those expressly authorized by statute". Any provision of said ordinance which is in conflict with this Code provision is invalid and unenforceable.

I would almost guarantee you that they will reply with "But... we had the ordinance first, so we did not adopt it in violation of the law, and we are clearly not enforcing it..."

If you read the preemption law very carefully, I'm not sure that it is actually in violation if the ordinance was in place first, as long as it is now not enforced.

We need User to chime in.

TFred

roscoe13 · Apr 30, 2011

I wasn't clear to me if that was the County's note, or Municode's note... We'll see how they respond.

Roscoe

skidmark · Apr 30, 2011

TFred said:
Right in their Municode, they include a note saying that it in unenforceable.

SNIP

I would almost guarantee you that they will reply with "But... we had the ordinance first, so we did not adopt it in violation of the law, and we are clearly not enforcing it..."

If you read the preemption law very carefully, I'm not sure that it is actually in violation if the ordinance was in place first, as long as it is now not enforced.

We need User to chime in.

TFred

No need to wait for User -

From the Code section itself:

B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

They can control discharge of weapons, where/when/with what you can hunt, and the like but not "the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof" unless the GA specifically passes a law allowing them to. If they had the approval of the GA via such legislation they would have made that quite plain.

stay safe.

TFred · Apr 30, 2011

skidmark said:
No need to wait for User -

From the Code section itself:

B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.

Click to expand...

They can control discharge of weapons, where/when/with what you can hunt, and the like but not "the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof" unless the GA specifically passes a law allowing them to. If they had the approval of the GA via such legislation they would have made that quite plain.

stay safe.

Yes, I agree 100%, but my point was that I'm not sure it is actually a violation of 15.2-915 to leave an old law on the books, as long as they are not enforcing it.

Read the whole thing carefully... it says "No locality shall adopt or enforce any ordinance..."

Then as you note, the next section clearly makes any older ordinances invalid.

The only penalty for not removing old code appears to be in the last section which includes "C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, ..."

It sounds to me like the only way you can force them to remove the code is to sue them, and to be honest, if they've made any reasonably good effort to indicate that they are no longer enforcing the code, I'd say it's a coin-flip as to whether you'd win the case...

As always, IANAL... that's just how it appears to me in plain English.

TFred

skidmark · May 1, 2011

If they don't take any action to try to enforce it you don't have what's called "standing" to sue.

It seems they know they can't enforce the old code but for some reason want to leave it on the books with the notation that those evil folks at the GA took away their power.

stay safe.

Citizen · May 1, 2011

Wait a minute. Wasn't that last clause about winning an action challenging the ordinance just added within the last couple years specifically to help drive invalid ordninances off books?

I thought sure that was the whole reason that clause was added.

roscoe13 · May 1, 2011

skidmark said:
It seems they know they can't enforce the old code but for some reason want to leave it on the books with the notation that those evil folks at the GA took away their power.

stay safe.

I, for one, don't want to be the one trying to explain that to Deputy Fife....

Roscoe

roscoe13 · May 2, 2011

Status update..

Received today:

Dear Mr. roscoe13,

Thank you for your e-mail of April 29, 2011, a copy of which has been forwarded to the County Attorney for his review and response to your question. Please let me know if I can be of any further assistance in this regard.

Renée Andersen

Renée Andersen, CMC
Deputy Clerk to the
Fauquier County Board of Supervisors
10 Hotel Street
Warrenton, VA 20186
PH: (540) 422-8020
FX: (540) 422-8022
BOS@fauquiercounty.gov

roscoe

roscoe13 · May 2, 2011

Response

Received a response that, for now, I'll assume is from the county atty.:

Dear Mr. roscoe13: I have reviewed your inquiry. Please note the highlighted language in the attached ordinance which clearly reflects that the ordinance is not enforceable to the extent that it has been preempted. Much of this ordinance has not been preempted by the action of the General Assembly, which addresses only firearms and not other types of weapons. The County has neither adopted nor enforced any ordinance in conflict with the Code of Virginia since the adoption of the provision you cite. No further action of the County is required.

The "highlighted language" is:

Note: * Following the adoption of Ordinance No. 09-07, the General Assembly amended § 15.2-915 of the Code of Virginia to prohibit the County from adopting or enforcing any ordinance. . ."governing the purchase, possession, transfer, ownership, carrying, storage or transportation of firearms, ammunition, or components or combinations thereof other than those expressly authorized by statute". Any provision of said ordinance which is in conflict with this Code provision is invalid and unenforceable.

Replied to his e-mail such:

I'd certainly hate to be the law abiding citizen trying to explain that nuance to a Sheriff's deputy while being wrongfully arrested for legally carrying a firearm in a county park. Such a wrongful arrest would leave the county vulnerable to a lawsuit, which the county would almost certainly lose, resulting in the county having to pay what could be significant damages, in addition to the legal fees of the person filing the suit (see http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-915 paragraph C.) Removing any reference to firearms from Sec. 16-7 paragraph A would eliminate this risk to taxpayer dollars. I fail to see any benefit to the county in retaining the reference to firearms in Sec. 16-7 paragraph A, while, as a Fauquier County taxpayer, I find the risk to taxpayer dollars posed by not removing the reference to firearms as unacceptable.

roscoe13

Catlett, VA

TFred · May 2, 2011

roscoe13 said:
Received a response that, for now, I'll assume is from the county atty.:

The "highlighted language" is:

Replied to his e-mail such:

Quotes lost in re-quote... but that's exactly what I expected them to say. And your reply is right on the money. That is what has recently changed, and I would bet good money that most city/county attorney's do not know about or understand the implications that it brings to the table.

Hopefully your reply will pique an interest enough for them to take a second look at that new paragraph, and spend the 30 minutes or so required to remove the now-illegal references in the ordinance.

TFred

TFred · May 2, 2011

Especially now that the county attorney has been made aware of the problem, if such a false arrest ever happens, the judge would seem to have all kinds of reason to throw the book at them.

TFred

Marco · May 3, 2011

Is there a nice park in Fauquier County that can be used for a OC picnic?

altajava · May 3, 2011

C. M. Crockett Park

Capitals blew it

Fauquier County parks firearms prohibition...

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