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Thread: State Preempted Roaonke County Code

  1. #1
    Regular Member Sesrun's Avatar
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    State Preempted Roaonke County Code

    Found a section of Roanoke County, Virginia, Code of Ordinances that is preempted yet still on the books. I figured that if I'm going to carry that I would scour the Code of Ordinances of places I frequent often.

    Sent an email as follows:

    ---------------------------------
    To: phaislip@roanokecountyva.gov
    ---------------------------------

    Mr. Pete Haislep, Director
    Roanoke County Parks and Recreation Department
    1206 Kessler Mill Rd.
    Salem, VA 24153
    May 4, 2011

    Mr. Haislep,

    It has come to my attention that there is an invalid and unenforceable ordinance published in Roanoke County's Code of Ordinances; Chapter 15 - Parks and Recreation, Section 15-8 - Prohibited uses of parks, Item #6: "Hunting and firearms."
    http://library.municode.com/HTML/122...RE_S15-8PRUSPA

    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/legp...0+cod+15.2-915 (attached).

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

    Your attention to this matter is appreciated and I look forward to your early response.
    Sincerely,
    Ryan (lastname)
    (my address)

    cc:
    Mr. Ray Lavinder, Chief of Police
    rkern@roanokecountyva.gov
    Public Safety Center
    5925 Cove Rd.
    Roanoke, VA 24019

    Mr. Paul Mahoney, County Attorney
    pmahoney@roanokecountyva.gov
    Roanoke County Atorney's Office
    5204 Bernard Dr.
    Fourth Floor
    Roanoke, VA 24018

    Mr. Michael Winston, Sherrif
    mwinston@roanokecountyva.gov
    Roanoke County Sheriff's Department
    401 E. Main St.
    Salem, VA 24153

    ---------------------------------

    Borrowed the letter format as was previous suggested.
    "No sense reinventing the wheel every time one of these comes up."

    Will post a response when and if one is received.

  2. #2
    Regular Member Sesrun's Avatar
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    Received a reply after only 6 minutes.

    ---------------------------------
    [Sesrun],
    I believe this was addressed in the last revision of the ordinance. Please contact the county attorney's office for clarification. Thank you.
    ---------------------------------

    Guess the online code has not been updated yet...

  3. #3
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    Quote Originally Posted by Sesrun View Post
    Received a reply after only 6 minutes.

    ---------------------------------
    [Sesrun],
    I believe this was addressed in the last revision of the ordinance. Please contact the county attorney's office for clarification. Thank you.
    ---------------------------------

    Guess the online code has not been updated yet...
    We're getting some mileage out of that letter format...

    Good job. Make sure you follow up with the county attorney for their version/update.

  4. #4
    Regular Member TFred's Avatar
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    Quote Originally Posted by Sesrun View Post
    Received a reply after only 6 minutes.

    ---------------------------------
    [Sesrun],
    I believe this was addressed in the last revision of the ordinance. Please contact the county attorney's office for clarification. Thank you.
    ---------------------------------

    Guess the online code has not been updated yet...
    If you pull up the "top level" of the Roanoke County page on Municode, part of it says this:

    Codified through
    Ordinance No. 101210-4, enacted October 12, 2010.
    (Supp. No. 18)

    Then below that, is this following explanation:

    "The listing below includes all legislation received by Municipal Code since the last update (printed or electronic) to the Code of Ordinances. This legislation has been enacted, but has not yet been codified."

    Next there is a link to one updated ordinance enacted since that October 12th date:

    Ordinance No. 030811-1 3/8/2011 Amending Zoning Ordinance relating to Small Wind Energy System.

    So unless this code has been updated since March 8, 2011 (only 2 months ago), you've been sold a load of horse manure.

    You did CC the County Attorney (according to your original post), so I'd give him a couple days to respond before further action. But yeah... first response: FAIL!

    TFred

  5. #5
    Regular Member TFred's Avatar
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    By the way... this section on parades may also need some attention. They do have a disclaimer at the end, but it doesn't matter, any ordinance about firearms is preempted and invalid.

    TFred

    Sec. 14-7. - Carrying of dangerous weapons by participants.

    No person participating in any parade shall carry any weapon which if concealed would constitute a violation of section 18.2-308 of the Code of Virginia or whose possession would otherwise constitute a violation of any section of title 18.2 of the Code of Virginia, 1950, as amended. The chief of police shall retain the authority to require that all participants in any parade submit to a pat-down search or other procedure, including passage through a metal detector, to insure compliance with this section prior to any parade. This prohibition shall not apply to members of any color guard, drill team, military unit, lodge or any other persons by whom the display of weapons during a parade would not constitute a threat to the maintenance of law and order or the preservation of the public peace.

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    Regular Member wylde007's Avatar
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    Exclamation

    Quote Originally Posted by TFred View Post
    By the way... this section on parades may also need some attention. They do have a disclaimer at the end, but it doesn't matter, any ordinance about firearms is preempted and invalid.
    No. Localities are forbidden from issuing or enforcing ordinances which restrict beyond those permitted by statute.

    As the referenced section quotes directly to statutory law, it is not invalid.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  7. #7
    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    No. Localities are forbidden from issuing or enforcing ordinances which restrict beyond those permitted by statute.

    As the referenced section quotes directly to statutory law, it is not invalid.
    There's a state law about carrying in a parade? Never have seen that....

    TFred

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    Regular Member wylde007's Avatar
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    Cool

    Quote Originally Posted by TFred View Post
    There's a state law about carrying in a parade? Never have seen that...
    No, silly. They specifically reference 18.2-308.

    It is likely (this is the impression I get) that they are trying to infer that parade dress or costume does not supersede state code and that if you are wearing a concealed weapon, even if in costume, you should still be bound by 18.2-308.

    It specifically says that when marching in a parade, you do not get any special considerations. 18.2-308 still applies.

    I see absolutely nothing out of sorts with this ordinance.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  9. #9
    Regular Member Sesrun's Avatar
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    Quote Originally Posted by TFred View Post
    Quote Originally Posted by wylde007 View Post
    No. Localities are forbidden from issuing or enforcing ordinances which restrict beyond those permitted by statute.

    As the referenced section quotes directly to statutory law, it is not invalid.

    There's a state law about carrying in a parade? Never have seen that....

    TFred
    I believe wylde007 was stating that localities can enact ordinances regarding firearms as long as they do not place any greater restrictions than are already stated in the state code statutes. I can find no state code statute regarding the regulation of parades nor the regulation of weapons or firearms at parades. Regardless, I do believe that Sec 14-7, as cited by TFred, may in fact be invalid do to the preemption statute and I plan to look further into this. If it does not contradict the preemption statute then it may still need to be rewritten in order to negate a claim of Void for Vagueness.

    Presently I am waiting for a reply from the County Attorney regarding Sec 15-8. If I do not receive a reply by Friday morning (~36 hours from original email) then I will be sending a request for more information regarding this unidentifiable revision to Sec 15-8 that does not appear on the Municode website nor in any of the Board of Supervisors Agenda with Reports (19870105-20110426).

    I'll update when I receive a response.
    Last edited by Sesrun; 05-05-2011 at 10:22 AM.

  10. #10
    Regular Member wylde007's Avatar
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    Exclamation

    I believe the ordinance is saying that just because you are marching in a parade does not mean you are exempt from 18.2-308, which is 100% correct.

    Not vague at all by my reading.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  11. #11
    Regular Member TFred's Avatar
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    I think a more careful reading of both these ordinances is in order.

    First the local parade ordinance:

    Sec. 14-7. - Carrying of dangerous weapons by participants.

    No person participating in any parade shall carry any weapon which if concealed would constitute a violation of section 18.2-308 of the Code of Virginia or whose possession would otherwise constitute a violation of any section of title 18.2 of the Code of Virginia, 1950, as amended. The chief of police shall retain the authority to require that all participants in any parade submit to a pat-down search or other procedure, including passage through a metal detector, to insure compliance with this section prior to any parade. This prohibition shall not apply to members of any color guard, drill team, military unit, lodge or any other persons by whom the display of weapons during a parade would not constitute a threat to the maintenance of law and order or the preservation of the public peace.

    The parade ordinance has nothing to do with carrying a concealed weapon. They reference 18.2-308 only to define a list of weapons they wish to prohibit anyone from carrying during a parade. Miles different from saying that the concealed weapon law also applies during a parade. Why would anyone need a law to say that?

    Next, the preemption law, partially says:

    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute.

    There is nothing about "as long as they do not place any greater restrictions than are already stated in the state code statutes." Any law that is not expressly authorized is illegal. Period. That means that the state code must explicitly say "you may write an ordinance about this", in so many words. As noted, there is no state code which authorizes a locality to restrict carry during a parade, therefore preemption invalidates this local ordinance.

    I hope that clears it up, I really don't know how it could be said any plainer.

    TFred

  12. #12
    Regular Member wylde007's Avatar
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    Thumbs down

    Quote Originally Posted by TFred View Post
    I hope that clears it up, I really don't know how it could be said any plainer.
    You have plainly said how you do not understand the context of the quotes you have presented.

    No person shall carry a handgun which IF CONCEALED would be in violation of 18.2-308. That is statutory law and they have simply reiterated it within the "parade" context. Since carrying a concealed weapon without a permit (or without being a "special" class) would be illegal in any regard, this ordinance does not say prohibit anything which is not generally already prohibited.

    As I said above, I read it as a reminder to those participating in such a parade that the wearing of parade dress or costume does not present sufficient device to violate 18.2-308.

    And I don't know how it could be said any plainer.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  13. #13
    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    You have plainly said how you do not understand the context of the quotes you have presented.

    No person shall carry a handgun which IF CONCEALED would be in violation of 18.2-308. That is statutory law and they have simply reiterated it within the "parade" context. Since carrying a concealed weapon without a permit (or without being a "special" class) would be illegal in any regard, this ordinance does not say prohibit anything which is not generally already prohibited.

    As I said above, I read it as a reminder to those participating in such a parade that the wearing of parade dress or costume does not present sufficient device to violate 18.2-308.

    And I don't know how it could be said any plainer.
    Well we'll just have to agree to disagree. My understanding of English is clearly different than yours, and that is fine.

    The key part of this whole difference is the phrase: "which if concealed would". That explicitly implies that the rest of the sentence applies to weapons that are not concealed.

    I won't go to the trouble of breaking down the rest of the sentence, because you have already made up your mind what it says. I disagree with your assessment, as do I suspect most other folks, but it's not a matter for voting.

    I suspect that if this ordinance is brought to the attention of the proper folks in light of 15.2-915, they will fix it. Or they may not. I believe they would lose, should it ever go to trial.

    TFred

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    Agree with TFred. The statute is stating that a parade member may not carry any weapon that would result in a violation of statute 18.2-308 if it were to be carried concealed. Thus this county ordinance attempts to prohibit even the open carrying of handguns, because those openly carried handguns could be carried concealed in violation of 18.2-308.

    * On another note I've started working my way through the county and city codes of the counties and independent cities in my general area. I've already found that some counties have no offending code section, however there are several, such as in Halifax Co., Altavista and Danville, which are certainly in violation. I'm preparing a spreadsheet to list the counties / cities I've searched, the source website, the infracting code sections & wording, and the words I've searched for.

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    Regular Member wylde007's Avatar
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    Cool

    Quote Originally Posted by TFred View Post
    The key part of this whole difference is the phrase: "which if concealed would". That explicitly implies that the rest of the sentence applies to weapons that are not concealed.
    Wrong. Wrong. Wrong.

    For starters it is a grammatical misconstruction to say "explicitly implies". Something is either explicit (said plainly) or implied (alluded to). It is one or the other, not both.

    The sentence states quite plainly that participating in a parade does not grant permissions which would be superior to statutory law. They are not talking about the enforcement of anything other than 18.2-308.

    Now, if the sentence were constructed as:

    "No person participating in any parade shall carry any weapon which, if concealed, would constitute a violation of section 18.2-308 of the Code of Virginia or whose possession would otherwise constitute a violation of any section of title 18.2 of the Code of Virginia, 1950, as amended."

    I could agree with you.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Quote Originally Posted by wylde007 View Post
    Wrong. Wrong. Wrong.

    For starters it is a grammatical misconstruction to say "explicitly implies". Something is either explicit (said plainly) or implied (alluded to). It is one or the other, not both.

    The sentence states quite plainly that participating in a parade does not grant permissions which would be superior to statutory law. They are not talking about the enforcement of anything other than 18.2-308.

    Now, if the sentence were constructed as:

    "No person participating in any parade shall carry any weapon which, if concealed, would constitute a violation of section 18.2-308 of the Code of Virginia or whose possession would otherwise constitute a violation of any section of title 18.2 of the Code of Virginia, 1950, as amended."

    I could agree with you.
    Except, your reading would then make the rest of the ordinance unnecessary.
    No person participating in any parade shall carry any weapon which if concealed would constitute a violation of section 18.2-308 of the Code of Virginia or whose possession would otherwise constitute a violation of any section of title 18.2 of the Code of Virginia, 1950, as amended. The chief of police shall retain the authority to require that all participants in any parade submit to a pat-down search or other procedure, including passage through a metal detector, to insure compliance with this section prior to any parade. This prohibition shall not apply to members of any color guard, drill team, military unit, lodge or any other persons by whom the display of weapons during a parade would not constitute a threat to the maintenance of law and order or the preservation of the public peace.
    The part in blue would be meaningless if it is meant to merely restate 18.2-308, and the part in red goes well beyond anything authorized by that same statute.

    The explicit statement that the prohibition doesn't apply to "persons by whom the display of weapons during a parade would not constitute a threat to the maintenance of law and order or the preservation of the public peace" suggests that they consider anyone else to be prohibited from carrying any type of weapon.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

  17. #17
    Regular Member wylde007's Avatar
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    Quote Originally Posted by grylnsmn View Post
    Except, your reading would then make the rest of the ordinance unnecessary.
    That's exactly my point. The rest of the ordinance IS unnecessary.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  18. #18
    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    That's exactly my point. The rest of the ordinance IS unnecessary.
    Shouldn't the fact that they did indeed write the rest of the ordinance be a pretty big clue?

    Ok... that's all, I'm done. Just pokin' fun now...

    TFred

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    Regular Member wylde007's Avatar
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    Thumbs up

    Quote Originally Posted by TFred View Post
    Shouldn't the fact that they did indeed write the rest of the ordinance be a pretty big clue?
    A clue to what? That they're all a bunch of gibbering idiots?

    I'll drink to that.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  20. #20
    Campaign Veteran roscoe13's Avatar
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    Sorry wylde007, I've got to agree with TFred and others on this one, your interpretation is dead wrong based on my understanding of the English language...

    Roscoe

  21. #21
    Regular Member wylde007's Avatar
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    I shall pity you en-masse then for your, ah, "understanding" of the English language.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  22. #22
    Campaign Veteran roscoe13's Avatar
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    Quote Originally Posted by wylde007 View Post
    I shall pity you en-masse then for your, ah, "understanding" of the English language.
    Right back atchya...

    Roscoe

  23. #23
    Regular Member Sesrun's Avatar
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    I have not received a reply from the County Attorney from my previous Cc so I just sent the following:

    ----------------------------------

    Mr. Paul Mahoney, County Attorney
    Roanoke County Atorney's Office
    5204 Bernard Dr.
    Fourth Floor
    Roanoke, VA 24018

    Mr. Mahoney,

    As requested by Mr. Haislip I am contacting you for clarification
    regarding Roanoke County's Code of Ordinances; Chapter 15 - Parks and
    Recreation, Section 15-8 - Prohibited uses of parks, Item #6: "Hunting
    and firearms" (http://library.municode.com/HTML/122...RE_S15-8PRUSPA).

    In the ordinance the county is attempting to regulate the "carry
    or possess[ion]" of firearms. This is an invalid and unenforceable
    ordinance based on the Code of Virginia's preemption statute 15.2-915
    Control of firearms; applicability to authorities and local
    governmental agencies
    (http://leg1.state.va.us/cgi-bin/legp...0+cod+15.2-915).

    Mr. Haislip stated that he "believe[s] this was addressed in the
    last revision of the ordinance." According to the Roanoke County Code
    of Ordinances as it appears on the Municode website there has not been
    a revision to the aforementioned ordinance since June 2008, or the the
    specified item since March 2008. Additionally, I was unable to find
    any revisions to this ordinance section in the Board of Supervisors
    Agendas with Reports other than those previously mentioned.

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

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

    Sincerely,
    (Real Name)
    (Address)


    Cc:
    Mr. Joe Obenshain, Senior Assistant County Attorney
    Roanoke County Atorney's Office
    5204 Bernard Dr.
    Fourth Floor
    Roanoke, VA 24018

    ----------------------------------

    I will update when I receive a reply.

  24. #24
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    State Preempted Roaonke County Code

    This is in the "Town of Vinton" codes. Vinton is part of Roanoke County. They added (b) to make Sec. 62-81 correct under the law. Is this written properly or is it still in violation of 15.2-915? I don't speak legalese so I need to better understand if this needs to be corrected. Thanks for your help.......

    ARTICLE V. WEAPONS

    Sec. 62-81. Carrying loaded firearms in public places.
    (a) It shall be unlawful and a class 1 misdemeanor for any person to carry any loaded firearm in any public place, except on legally open hunting grounds and at authorized target shooting ranges. Upon a conviction of a violation of this section, any such firearm, together with the ammunition intended for use therewith, may, in the discretion of the court trying the case, be forfeited to the town by order duly entered, and may be seized by an officer as forfeited, and such as may be needed for police officers and conservation of the peace shall be devoted to that purpose. The remainder shall be destroyed by the officer having them in charge.
    (b) This section shall not apply to any person excepted from the provisions of Code of Virginia, 18.2-308.
    (Code 1982, 25-2)

  25. #25
    Activist Member Wolf_shadow's Avatar
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    Quote Originally Posted by doctork View Post
    This is in the "Town of Vinton" codes. Vinton is part of Roanoke County. They added (b) to make Sec. 62-81 correct under the law. Is this written properly or is it still in violation of 15.2-915? I don't speak legalese so I need to better understand if this needs to be corrected. Thanks for your help.......

    ARTICLE V. WEAPONS

    Sec. 62-81. Carrying loaded firearms in public places.
    (a) It shall be unlawful and a class 1 misdemeanor for any person to carry any loaded firearm in any public place, except on legally open hunting grounds and at authorized target shooting ranges. Upon a conviction of a violation of this section, any such firearm, together with the ammunition intended for use therewith, may, in the discretion of the court trying the case, be forfeited to the town by order duly entered, and may be seized by an officer as forfeited, and such as may be needed for police officers and conservation of the peace shall be devoted to that purpose. The remainder shall be destroyed by the officer having them in charge.
    (b) This section shall not apply to any person excepted from the provisions of Code of Virginia, 18.2-308.
    (Code 1982, 25-2)
    IANAL but on face value to me appears in violation of 15.2-915 as it looks like they are saying only persons with a CHP can carry which in it self is wrong.

    15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
    Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in 9.1-101 from acting within the scope of his duties.
    The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
    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.
    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, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.
    (1987, c. 629, 15.1-29.15; 1988, c. 392; 1997, cc. 550, 587; 2002, c. 484; 2003, c. 943; 2004, cc. 837, 923; 2009, cc. 735, 772.)

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