OC in Durham question??

Gunslinger · Jul 8, 2011

EricDailey X-NRA said:
I'll have a copy of the email message with me at the Meetup in Durham. It states that the DPD Chief will take appropriate immediate action to address this bad ordinance and the Department will notify the Durham City Attorney to advise the Durham city council to correct the ordinance when they return from summer recess.

"...attention of the Chief of
Police for immediate appropriate action. As I mentioned, the City
Council has adjourned for a summer break, but I have brought this matter
to the attention of the City Attorney so that we can address with
Council. Thank you for bringing this issue to our attention...."

The Meetup Event at Bob Evans restaurant on Mt. Moriah road is a very nice place with a big semi-private area for our group. The manager is friends with the operator of the place we had our last Event in Raleigh. We should get a warm welcome from them. I'd like to be able to tell him how many to expect later today. A big turnout would be very nice. Thanks.

Bob Evans has a large parking lot at the back where we can assemble and go in. I hope to see folks there.

Check out this Meetup with Triangle Open Carry http://meetu.ps/3d7t

Good work and good luck!

dmatting · Jul 8, 2011

Ok, so after all that back and forth, what is the deal with the city of Durham? Is their ordinance against OC going to cause problems until the ordinance is reversed? I'm within the boundaries of the city quite a bit and would like to know what I can and cannot do in there.

And if anyone can help point to these municipal codes, that would be helpful. I can't seem to find them myself.

Dreamer · Jul 8, 2011

dmatting said:
And if anyone can help point to these municipal codes, that would be helpful. I can't seem to find them myself.

http://www.municode.com/library/ClientListing.aspx?stateID=33

Please not that many cities and towns are NOT included, because they have not made their municipal codes publicly available. Many cities don't even put their muni codes on their official city websites--you must go to the city building or local library to get them in print form. The only reason for this is to keep them secret or difficult for the public to access--there is NO other excuse...

dmatting · Jul 11, 2011

EricDailey X-NRA said:
I'll have a copy of the email message with me at the Meetup in Durham. It states that the DPD Chief will take appropriate immediate action to address this bad ordinance and the Department will notify the Durham City Attorney to advise the Durham city council to correct the ordinance when they return from summer recess.

"...attention of the Chief of
Police for immediate appropriate action. As I mentioned, the City
Council has adjourned for a summer break, but I have brought this matter
to the attention of the City Attorney so that we can address with
Council. Thank you for bringing this issue to our attention...."

The Meetup Event at Bob Evans restaurant on Mt. Moriah road is a very nice place with a big semi-private area for our group. The manager is friends with the operator of the place we had our last Event in Raleigh. We should get a warm welcome from them. I'd like to be able to tell him how many to expect later today. A big turnout would be very nice. Thanks.

Bob Evans has a large parking lot at the back where we can assemble and go in. I hope to see folks there.

Check out this Meetup with Triangle Open Carry http://meetu.ps/3d7t

Can you post the email here? This junk ordinance is really going to affect a lot of my normal activities if I want to OC - it sounds as though OCing at the Walmart, Lowes, etc can cause a problem with the way the ordinance is currently written. I can always CC but would rather not. I don't live in the city limits but most of the businesses that I frequent are in the city.

EricDailey X-NRA · Jul 11, 2011

Better Yet.

dmatting said:
Can you post the email here? This junk ordinance is really going to affect a lot of my normal activities if I want to OC - it sounds as though OCing at the Walmart, Lowes, etc can cause a problem with the way the ordinance is currently written. I can always CC but would rather not. I don't live in the city limits but most of the businesses that I frequent are in the city.

Maybe you should call the Durham City Police Department Attorney and talk to her directly. She is familiar with the question. You could give us a report and that would be even more assurance on the situation.

Ms. Toni Smith.

edit: We had at least 5 OC'ers at the Meetup Friday July 8th. The Event was great fun. No problems. The Mt. Moriah Bob Evans has the best staff in the RTP.
No one from Durham showed up but we will go back when we think folks will attend.

dmatting · Jul 13, 2011

OK, so don't post the email - I have no problem with getting the info on my own.

Anyway, I've started looking at the municipal codes for the city and the county and the laws that were listed for the state. It looks like there is also an issue with Durham county - restrictions in parking lots, etc and it also appears that they have made it illegal to OC pretty much anywhere outside except private property that isn't used for "public use".

The Durham City ordinance (Sec 46-23.a) wanted to ban OC in "Public Places" and defined it as such (in Sec 46-23.b):

Public place means privately owned property or part thereof which is commonly made available for the use and enjoyment of the general public, including but not limited to, religious facilities, hospitals, medical clinics, restaurants, service stations and garages, shopping malls and shopping centers, stores, office buildings and theatres, and the public parking areas thereof.

The Durham County ordinance (Sec 17-95) states that "It shall be unlawful for any person to display at any time a weapon on public property, as defined in this division, ..." and the definition is given (Sec 17-92):

Public property means any road, sidewalk or alley which is either under the road maintenance system of the state or which has been dedicated for public use by the owner or developer, or is a public vehicular area as defined in G.S. 20-4.01(32). This includes any area within the state that is generally open to and used by the public for vehicular traffic, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley or parking lot upon the grounds and premises of:

Any public or private hospital, college, university, school, orphanage, church or any of the institutions, parks or other facilities maintained and supported by the state or any of its subdivisions;

Any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business, residential or municipal establishment providing parking space for customers, patrons or the public; or

Any property owned by the United States and subject to the jurisdiction of the state. (The inclusion of property owned by the United States in this definition shall not limit assimilation of state law when applicable under the provisions of USC title 18, section 13.)

The terms "public property" and "public vehicular area" shall not be construed to mean any private property not generally open to and used by the public. They specifically does not include an area specially intended for lawful sport shooting, where the general expectation is for individuals present to be carrying, in possession of and discharging firearms.

Doesn't this mean that if I am OCing, go to a gas station, park in their parking lot and walk to the store that I am in violation of the county code? I take it that it does but once in the gas station (if there is no posting) I am fine and dandy. Also, it appears that I would not be able to walk along the roadside anywhere in the county while OCing.

EDIT: Actually, looking at the county code again, the definition includes "the premises" as well, so that would mean no OC anywhere in Durham county other than private property.

I also can not find any definitions for the General Statutes that were given above (G.S.160A-189 and G.S. 152A-129) that define public property.

My reading of all of this (and I am definitely not a lawyer) is that Durham County severely restricts Open Carry. State law seems to allow this from G.S. 153A-129, which gives mention to public property but does not give a definition for it.

So, what is the argument that can be used to say that these ordinances are violation of state law? And which parts of the ordinances are valid? Are the violating portions only the parts talking about "public property"?

................................................................................................
Here are links to everything...
Durham County Code
http://library.municode.com/HTML/12650/level4/COOR_CH17OFMIPR_ARTIIOFINFIOTWE_DIV4PODIWE.html

City of Durham Code:
http://library.municode.com/HTML/19967/level3/PTIICOOR_CH46PUSA_ARTIIWE.html

G.S. 153A-129:
http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bysection/chapter_153a/gs_153a-129.html

G.S. 160A-189:
http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=160a-189

dmatting · Jul 13, 2011

So with someone else's input, I found what all y'all were talking about with regards to pre-emption - I think.

14‑409.40. Statewide uniformity of local regulation.

(a) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, statewide concern, and that the entire field of regulation of firearms is preempted from regulation by local governments except as provided by this section.

(a1) The General Assembly further declares that the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public is not an unreasonably dangerous activity and does not constitute a nuisance per se and furthermore, that it is the unlawful use of firearms and ammunition, rather than their lawful design, marketing, manufacture, distribution, sale, or transfer that is the proximate cause of injuries arising from their unlawful use. This subsection applies only to causes of action brought under subsection (g) of this section.

(b) Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts.

(c) Notwithstanding subsection (b) of this section, a county or municipality, by zoning or other ordinance, may regulate or prohibit the sale of firearms at a location only if there is a lawful, general, similar regulation or prohibition of commercial activities at that location. Nothing in this subsection shall restrict the right of a county or municipality to adopt a general zoning plan that prohibits any commercial activity within a fixed distance of a school or other educational institution except with a special use permit issued for a commercial activity found not to pose a danger to the health, safety, or general welfare of persons attending the school or educational institution within the fixed distance.

(d) No county or municipality, by zoning or other ordinance, shall regulate in any manner firearms shows with regulations more stringent than those applying to shows of other types of items.

(e) A county or municipality may regulate the transport, carrying, or possession of firearms by employees of the local unit of government in the course of their employment with that local unit of government.

(f) Nothing contained in this section prohibits municipalities or counties from application of their authority under G.S. 153A‑129, 160A‑189, 14‑269, 14‑269.2, 14‑269.3, 14‑269.4, 14‑277.2, 14‑415.11, 14‑415.23, including prohibiting the possession of firearms in public‑owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas, except nothing in this subsection shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas. Nothing contained in this section prohibits municipalities or counties from exercising powers provided by law in declared states of emergency under Article 36A of this Chapter.

(g) The authority to bring suit and the right to recover against any firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association by or on behalf of any governmental unit, created by or pursuant to an act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, injunctive relief, or any other remedy resulting from or relating to the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public is reserved exclusively to the State. Any action brought by the State pursuant to this section shall be brought by the Attorney General on behalf of the State. This section shall not prohibit a political subdivision or local governmental unit from bringing an action against a firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association for breach of contract or warranty for defect of materials or workmanship as to firearms or ammunition purchased by the political subdivision or local governmental unit. (1995 (Reg. Sess., 1996), c. 727, s. 1; 2002‑77, s. 1.)

Is this what trumps the local ordinances??

Thanks

OC in Durham question??

Gunslinger

Regular Member

dmatting

Regular Member

Dreamer

Regular Member

dmatting

Regular Member

EricDailey X-NRA

Regular Member

dmatting

Regular Member

dmatting

Regular Member