utbagpiper
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The following email was sent to various officials in Cedar City. It is self-explanatory.
I've had a phone conversation with the City Attorney who was surprised to learn of these State limits on cities, but did not seem adverse to helping correct the situation.
Please try to politely educate your own city council members as to State Premption and let me know of any violations you may encounter.
Thank you.
Charles
Charles Hardy
Public Policy Director
GOUtah! (Gun Owners of Utah!)
xxx
xxx
xxxx
July 23, 2007
Cedar City Mayor Gerald Sherratt
Members of the Cedar City Council
Cedar City Attorney
Dear Mayor Sherratt, Honorable Members of the Cedar City Council, et al,
I am writing regarding the recently enacted ATV ordinance which allows the use of ATVs on certain city roads, city ordinance 0509-07. I reference the version located at <http://www.cedarcity.org/Website/Ordinances/Ord 35B Off-Road Vehicles.pdf>
While GOUtah! takes no position one way or the other on issues such as ATVs, I would like to personally thank the city for adopting such an ordinance and accommodating the responsible use of ATVs on appropriate city streets. I sincerely hope that your experience over the next few months will demonstrate that reauthorization of this ordinance is acceptable next year near the sunset date.
However, GOUtah! is concerned with one aspect of the ordinance as it relates to the possession of firearms. We believe and assert that one provision of the ordinance is in violation of State law. The ordinance prohibits the possession of a loaded firearm (or strung bow) while operating an ATV under the provisions of this ordinance. However, the City is prohibited under State statute from passing any ordinances relative to the lawful possession of firearms. It is lawful for persons with a valid permit to carry a firearm to have a loaded, and/or concealed firearm on our about their persons, including while operating motor vehicles.
A call to your police department confirmed that officers currently believe the black letter of this ordinance would allow (though not mandate) an officer to cite anyone, including a person with a concealed firearms permit, for having a loaded firearm while operating an ATV on permitted city streets.
I've spoken this morning with your city attorney and believe this issue can be easily corrected. You and your city attorney may wish to review the statutes included below as they relate to city authority to enact ordinances as well as official Utah Attorney General opinion 01-002 available at <http://www.attygen.state.ut.us/Opinions_AttorneyGeneral/agop01002.htm>, and Utah Supreme Court decision No 20030877, University of Utah v. Shurtleff, issued Sept. 8, 2006, available at <http://caselaw.findlaw.com/data/ut/cases/supopin/UnivofUtah090806.pdf>.
Or, you may wish to contact Attorney General Mark Shurtleff, cc'd on this email, for official legal counsel on this matter of State law.
I respectfully request that acknowledgement of receipt of this email be directed to either the above email or physical address. I further request that you immediately advise your officers of the legal exemption for those with concealed weapons permits and instruct them NOT to issue citations to such persons. Finally, I request that City Ordinance 0509-07 be amended so as to fully comply with State law regarding the rights of person with concealed weapons permits to possess loaded firearms while operating ATVs and other vehicles.
We would suggest that Section 35B-5, paragraph (12) be amended to apply only to strung bows and that a paragraph (13) be created with a cross reference to UCA 76-10-505. This will allow those reading the ordinance to be aware of the State prohibition on carrying a loaded weapon on vehicles, and the Class B Misdemeanor for violation of this law, rather than the Class C Misdemeanor imposed under city Ordinance. It would also maintain the legal exemption for those with permits to carry firearms. Most importantly, it will allow the city to avoid violation of 76-10-500 since the city would no longer be attempting to regulate the possession of firearms.
Sincerely,
Charles Hardy
Public Policy Director
GOUtah!
City Ordinance and State Statutes:
Cedar City Ordinance:
SECTION 35B-5 Prohibited Operation reads:
"It shall be unlawful for any person to drive or operate any off-highway vehicle in the following ways or under the following circumstances, which are hereby declared to be unsafe and a public nuisance:
...
"12. While carrying a strung bow or loaded firearm."
GOUtah! can certainly understand the desires to maintain the greatest degree of safety possible. In general, a prohibition on loaded firearms (or strung bows) in or on any vehicle makes sense. Indeed, Utah Code, 76-10-505 prohibits that very thing under penalty of a class B misdemeanor:
" 76-10-505. Carrying loaded firearm in vehicle or on street.
" (1) Unless otherwise authorized by law, a person may not carry a loaded firearm:
" (a) in or on a vehicle;
" (b) on any public street; or
" (c) in a posted prohibited area.
" (2) A violation of this section is a class B misdemeanor. "
However, 76-10-523 provides an exemption to this section for all persons holding a valid permit to possess a firearm:
" 76-10-523. Persons exempt from weapons laws.
...
" (2) The provisions of Subsections 76-10-504(1)(a), (1)(b), and Section 76-10-505 do not apply to any person to whom a permit to carry a concealed firearm has been issued:
" (a) pursuant to Section 53-5-704; or
" (b) by another state or county. "
Most relevant to city ordinance 0509-07 is 76-10-500 and relevant definitions in 76-10-501:
" 76-10-500. Uniform law.
" (1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
" (a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
" (b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
" (2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms."
" 76-10-501. Definitions.
" As used in this part:
...
"(19) "State entity" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state."
As confirmed by the official AG opinion and Supreme Court decision referenced above, these sections of code invalidate the city ordinance ban on carrying a loaded firearm on an ATV insofar as that ban may be directed at persons with a permit to carry a concealed firearm. Persons without such a permit would be subject to conviction of Class B Misdemeanor under UCA 76-10-505.
The following email was sent to various officials in Cedar City. It is self-explanatory.
I've had a phone conversation with the City Attorney who was surprised to learn of these State limits on cities, but did not seem adverse to helping correct the situation.
Please try to politely educate your own city council members as to State Premption and let me know of any violations you may encounter.
Thank you.
Charles
Charles Hardy
Public Policy Director
GOUtah! (Gun Owners of Utah!)
xxx
xxx
xxxx
July 23, 2007
Cedar City Mayor Gerald Sherratt
Members of the Cedar City Council
Cedar City Attorney
Dear Mayor Sherratt, Honorable Members of the Cedar City Council, et al,
I am writing regarding the recently enacted ATV ordinance which allows the use of ATVs on certain city roads, city ordinance 0509-07. I reference the version located at <http://www.cedarcity.org/Website/Ordinances/Ord 35B Off-Road Vehicles.pdf>
While GOUtah! takes no position one way or the other on issues such as ATVs, I would like to personally thank the city for adopting such an ordinance and accommodating the responsible use of ATVs on appropriate city streets. I sincerely hope that your experience over the next few months will demonstrate that reauthorization of this ordinance is acceptable next year near the sunset date.
However, GOUtah! is concerned with one aspect of the ordinance as it relates to the possession of firearms. We believe and assert that one provision of the ordinance is in violation of State law. The ordinance prohibits the possession of a loaded firearm (or strung bow) while operating an ATV under the provisions of this ordinance. However, the City is prohibited under State statute from passing any ordinances relative to the lawful possession of firearms. It is lawful for persons with a valid permit to carry a firearm to have a loaded, and/or concealed firearm on our about their persons, including while operating motor vehicles.
A call to your police department confirmed that officers currently believe the black letter of this ordinance would allow (though not mandate) an officer to cite anyone, including a person with a concealed firearms permit, for having a loaded firearm while operating an ATV on permitted city streets.
I've spoken this morning with your city attorney and believe this issue can be easily corrected. You and your city attorney may wish to review the statutes included below as they relate to city authority to enact ordinances as well as official Utah Attorney General opinion 01-002 available at <http://www.attygen.state.ut.us/Opinions_AttorneyGeneral/agop01002.htm>, and Utah Supreme Court decision No 20030877, University of Utah v. Shurtleff, issued Sept. 8, 2006, available at <http://caselaw.findlaw.com/data/ut/cases/supopin/UnivofUtah090806.pdf>.
Or, you may wish to contact Attorney General Mark Shurtleff, cc'd on this email, for official legal counsel on this matter of State law.
I respectfully request that acknowledgement of receipt of this email be directed to either the above email or physical address. I further request that you immediately advise your officers of the legal exemption for those with concealed weapons permits and instruct them NOT to issue citations to such persons. Finally, I request that City Ordinance 0509-07 be amended so as to fully comply with State law regarding the rights of person with concealed weapons permits to possess loaded firearms while operating ATVs and other vehicles.
We would suggest that Section 35B-5, paragraph (12) be amended to apply only to strung bows and that a paragraph (13) be created with a cross reference to UCA 76-10-505. This will allow those reading the ordinance to be aware of the State prohibition on carrying a loaded weapon on vehicles, and the Class B Misdemeanor for violation of this law, rather than the Class C Misdemeanor imposed under city Ordinance. It would also maintain the legal exemption for those with permits to carry firearms. Most importantly, it will allow the city to avoid violation of 76-10-500 since the city would no longer be attempting to regulate the possession of firearms.
Sincerely,
Charles Hardy
Public Policy Director
GOUtah!
City Ordinance and State Statutes:
Cedar City Ordinance:
SECTION 35B-5 Prohibited Operation reads:
"It shall be unlawful for any person to drive or operate any off-highway vehicle in the following ways or under the following circumstances, which are hereby declared to be unsafe and a public nuisance:
...
"12. While carrying a strung bow or loaded firearm."
GOUtah! can certainly understand the desires to maintain the greatest degree of safety possible. In general, a prohibition on loaded firearms (or strung bows) in or on any vehicle makes sense. Indeed, Utah Code, 76-10-505 prohibits that very thing under penalty of a class B misdemeanor:
" 76-10-505. Carrying loaded firearm in vehicle or on street.
" (1) Unless otherwise authorized by law, a person may not carry a loaded firearm:
" (a) in or on a vehicle;
" (b) on any public street; or
" (c) in a posted prohibited area.
" (2) A violation of this section is a class B misdemeanor. "
However, 76-10-523 provides an exemption to this section for all persons holding a valid permit to possess a firearm:
" 76-10-523. Persons exempt from weapons laws.
...
" (2) The provisions of Subsections 76-10-504(1)(a), (1)(b), and Section 76-10-505 do not apply to any person to whom a permit to carry a concealed firearm has been issued:
" (a) pursuant to Section 53-5-704; or
" (b) by another state or county. "
Most relevant to city ordinance 0509-07 is 76-10-500 and relevant definitions in 76-10-501:
" 76-10-500. Uniform law.
" (1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
" (a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
" (b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
" (2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms."
" 76-10-501. Definitions.
" As used in this part:
...
"(19) "State entity" means each department, commission, board, council, agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory, library, unit, bureau, panel, or other administrative unit of the state."
As confirmed by the official AG opinion and Supreme Court decision referenced above, these sections of code invalidate the city ordinance ban on carrying a loaded firearm on an ATV insofar as that ban may be directed at persons with a permit to carry a concealed firearm. Persons without such a permit would be subject to conviction of Class B Misdemeanor under UCA 76-10-505.