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State Preempted Roaonke County Code

Sesrun

Regular Member
Joined
May 4, 2011
Messages
84
Location
Roanoke, VA
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/12222/level2/PTICOCO_CH15PARE.html#PTICOCO_CH15PARE_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/legp504.exe?000+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.
 

Sesrun

Regular Member
Joined
May 4, 2011
Messages
84
Location
Roanoke, VA
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...
 

Blk97F150

Regular Member
Joined
Dec 21, 2010
Messages
1,179
Location
Virginia
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... :banana:

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

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
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
 

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
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.​
 

wylde007

Regular Member
Joined
Jan 23, 2009
Messages
3,035
Location
Va Beach, Occupied VA
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.
 

wylde007

Regular Member
Joined
Jan 23, 2009
Messages
3,035
Location
Va Beach, Occupied VA
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.
 

Sesrun

Regular Member
Joined
May 4, 2011
Messages
84
Location
Roanoke, VA
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:

wylde007

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Joined
Jan 23, 2009
Messages
3,035
Location
Va Beach, Occupied VA
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.
 

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
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
 

wylde007

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Jan 23, 2009
Messages
3,035
Location
Va Beach, Occupied VA
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.
 

TFred

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Most historic town in, Virginia, USA
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
 

jmelvin

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Messages
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Location
Lynchburg, Virginia, USA
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.
 

wylde007

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Va Beach, Occupied VA
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.
 

grylnsmn

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Joined
Dec 28, 2010
Messages
620
Location
Pacific Northwest
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.
 

roscoe13

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Joined
Apr 18, 2007
Messages
1,134
Location
Catlett, Virginia, USA
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
 
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