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Hancock County ordinance violating state preemption statute

Is this law illegal?


  • Total voters
    3
  • Poll closed .

ICBM

Member
Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
The county ordinance;
§ 130.06 DEADLY WEAPONS PROHIBITED IN COUNTY STRUCTURES.
(C) (2) No person may intentionally display a firearm at a public meeting in any structure owned or leased by the county.

The state preemption statute;
IC 35-47-11.1-2
Political subdivision regulation of firearms, ammunition, and
firearm accessories prohibited
Sec. 2. Except as provided in section 4 of this chapter, a political
subdivision may not regulate:
(1) firearms, ammunition, and firearm accessories;
(2) the ownership, possession, carrying, transportation,
registration, transfer, and storage of firearms, ammunition, and
firearm accessories; and
(3) commerce in and taxation of firearms, firearm ammunition,
and firearm accessories.

IC 35-47-11.1-4
Not prohibited by chapter
Sec. 4. This chapter may not be construed to prevent any of the
following:
(6) The enactment or enforcement of a provision prohibiting or
restricting the intentional display of a firearm at a public
meeting.
However, except as provided in subdivision (5) concerning a
building that contains a courtroom, a unit may not prohibit or
restrict the possession of a handgun under this subdivision in a
building owned or administered by the unit if the person who
possesses the handgun has been issued a valid license to carry
the handgun under IC 35-47-2.

Conclusion;

It looks like this ordinance violates the preemption law. The only loophole they might have is the wording at the end, "a unit may not prohibit or restrict the possession of a handgun." Would banning people from open carrying a handgun restrict the possession? I think so.
 
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cce1302

Regular Member
Joined
Aug 8, 2008
Messages
270
Location
South Bend, Indiana, USA
No, it doesn't violate state preemption because of the exception that you posted:

IC 35-47-11.1-4
Not prohibited by chapter
Sec. 4. This chapter may not be construed to prevent any of the
following:
(6) The enactment or enforcement of a provision prohibiting or
restricting the intentional display of a firearm at a public
meeting.


They use almost the exact same words as the state statute allows. They are prohibiting the intentional display of a firearm at a public meeting.
 
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ICBM

Member
Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
Read the end of the statute again...

"However, except as provided in subdivision (5) concerning a
building that contains a courtroom, a unit may not prohibit or
restrict the possession of a handgun under this subdivision in a
building owned or administered by the unit if the person who
possesses the handgun has been issued a valid license to carry
the handgun under IC 35-47-2."

They can restrict firearms in all the places listed in IC 35-47-11.1-4 (Subsections 1-13), UNLESS you have a valid License to Carry Handgun,
which then they may ONLY restrict possession in a courthouse (5), and other secure areas listed under state law, like a school, airport, annual state fair, etc.
 

cce1302

Regular Member
Joined
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Messages
270
Location
South Bend, Indiana, USA
Read the end of the statute again...

"However, except as provided in subdivision (5) concerning a
building that contains a courtroom, a unit may not prohibit or
restrict the possession of a handgun under this subdivision in a
building owned or administered by the unit if the person who
possesses the handgun has been issued a valid license to carry
the handgun under IC 35-47-2."

They can restrict firearms in all the places listed in IC 35-47-11.1-4 (Subsections 1-13), UNLESS you have a valid License to Carry Handgun,
which then they may ONLY restrict possession in a courthouse (5), and other secure areas listed under state law, like a school, airport, annual state fair, etc.
I've both read it and comprehended it.

Please note the differences in wording: possession vs. display.
 

ATM

Campaign Veteran
Joined
Aug 1, 2009
Messages
361
Location
Indiana, USA
I've both read it and comprehended it.

Please note the differences in wording: possession vs. display.
Agreed.

They can prohibit or restrict the intentional display of a firearm at a public meeting.

They cannot prohibit or restrict the possession of a handgun by a licensee.

So, although they may legally impose upon the visibility of the object, they may not impose further upon its mere presence.
 

ICBM

Member
Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
Hmmm....

I read a case concerning the preemption statute being used against a county with a similar measure on paper, but not being enforced.

The case went to the State Supreme Court (I believe), and they basically said it's not an issue if it's not being enforced, even though
the statute is still on the books and not removed after the preemption took effect. The statute states you adversely affected if you are
within the boarders of the county, town, or city at any time the law is in effect.

So basically, they can't be held liable for not removing old laws from the books they are not enforcing.

I just can't find the case again.

But I respectfully disagree, curbing it's display would be a restriction under the statute... if it's enforced.
It might be a small difference, but technically unlawful.

What if they passed a law where you could only keep it in a case, or only under 17 layers of Bill Cosby sweaters? (Roofies not included)
That's the point, under your reasoning, if they can restrict it's possession a little, then they could restrict it more.
 

cce1302

Regular Member
Joined
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Messages
270
Location
South Bend, Indiana, USA
I read a case concerning the preemption statute being used against a county with a similar measure on paper, but not being enforced.

The case went to the State Supreme Court (I believe), and they basically said it's not an issue if it's not being enforced, even though
the statute is still on the books and not removed after the preemption took effect. The statute states you adversely affected if you are
within the boarders of the county, town, or city at any time the law is in effect.

So basically, they can't be held liable for not removing old laws from the books they are not enforcing.

I just can't find the case again.

But I respectfully disagree, curbing it's display would be a restriction under the statute... if it's enforced.
It might be a small difference, but technically unlawful.

What if they passed a law where you could only keep it in a case, or only under 17 layers of Bill Cosby sweaters? (Roofies not included)
That's the point, under your reasoning, if they can restrict it's possession a little, then they could restrict it more.
Are we doing this again?

Go read my first post on this thread. Seriously.
 

ICBM

Member
Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
rebuttal

Are we doing this again?

Go read my first post on this thread. Seriously.
This is a forum on open carry, and until I think I've properly convinced you, I'm happy to continue debating.

The case that I couldn't recall was Dykstra v. City of Hammond, 985 N.E.2d 1105 (Ind. Ct. App. 2013), for reference.

I read your first post, and still think that point is moot given the last paragraph of the statute saying only subsection 5 (courthouse) is enforceable when a person has an LCH.

Also, prohibiting or regulating the form of carrying is expressly prohibited under the preemption statue. A county saying how you can carry is forbidden under state law.

The question is, in my opinion, will they enforce it? That would bring them into legal jeopardy.
 

cce1302

Regular Member
Joined
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Messages
270
Location
South Bend, Indiana, USA
This is a forum on open carry, and until I think I've properly convinced you, I'm happy to continue debating.

The case that I couldn't recall was Dykstra v. City of Hammond, 985 N.E.2d 1105 (Ind. Ct. App. 2013), for reference.

I read your first post, and still think that point is moot given the last paragraph of the statute saying only subsection 5 (courthouse) is enforceable when a person has an LCH.
it's not.
Also, prohibiting or regulating the form of carrying is expressly prohibited under the preemption statue. A county saying how you can carry is forbidden under state law.
no it isn't.
The question is, in my opinion, will they enforce it? That would bring them into legal jeopardy.
Oh good, I thought you were kidding.

This time, I'll put some of the words in bold.

IC 35-47-11.1-4 clearly allows a county to enact or enforce a provision prohibiting or
restricting the intentional display of a firearm at a public meeting.

Hancock county has enacted a provision prohibiting the intentional display of a firearm at a public meeting in any structure owned or leased by the county.


subsection 5 is still not about intentional display. It's about possession.


Ask me again, and I'll even C&P definitions of the words "display" and "possess" for you. [Spoiler alert: they're not the same thing.]



And I have a question for you: if IC 35-47-11.1-4 does not allow a county to enact or enforce a provision prohibiting or restricting the intentional display of a firearm at a public meeting (as you so astutely observed Hancock County has done), then what does it do?
 

ICBM

Member
Joined
Jun 14, 2014
Messages
76
Location
McCordsville, IN
Yes, they have two separate meanings, there is no denying that. But they do somewhat overlap, at least in this context.

Scenario;

Public meeting in some random county building.

You have your handgun in an outside the belt holster and you have a License to Carry Handgun.

Because you have the LCH, you can take it into the building and attend the meeting
(at this point we are not discussing how it is carried, just that you can take it with you in general).

What you are saying is that the ordinance is lawful because it only prohibits "intentional display" not "possession" of the handgun.

What I am try to say is that exemptions listed under the preemption statute state that they still can not restrict the possession of a LCH holder.

"IC 35-47-11.1-4
However, except as provided in subdivision (5) concerning a
building that contains a courtroom, a unit may not prohibit or
restrict the possession of a handgun under this subdivision in a
building owned or administered by the unit if the person who
possesses the handgun has been issued a valid license to carry
the handgun under IC 35-47-2."

Fine, lets look at the definition of possession...

"Definition of possession in English:

noun

1. The state of having, owning, or controlling something:

1.1 Law Visible power or control over something, as distinct from lawful ownership; holding or occupancy:"

-Oxford Dictionaries

You see that it mentions "the state of... controlling" in the first, and "Visible power or control over something" in the second.

Now, lets look at the definition of "Restrict"...

"Definition of restrict in English:

verb

1. Put a limit on; keep under control:

1.1 Deprive (someone or something) of freedom of movement or action:

1.2 (restrict someone to) Limit someone to only doing or having (a particular thing) or staying in (a particular place):

1.3 (restrict something to) Limit something, especially an activity, to (a particular place, time, or category of people):"


So, what the state laws say is that the county may not "restrict (Put a limit on) the possession (Visible power or control over something)."

Therefore, restricting the intentional display, is hence, restricting possession.

What may be confusing to you and others is that the preemption section says "possession, carrying", while the exemptions with an LCH section only mention "possession."
The preemption section states "ownership, possession, carrying, transportation" which technically only needs the word "possession" without the other 3, because the "possession" encompasses the meanings over the others as well, and seems redundant.

The point of all of this is, that the word "Possession" has a broader meaning to it than you seem to believe.

If a police officer comes up to you and says "Cover up your handgun", he is restricting your possession and how you carry.
If a police officer comes up to you and says "You can't have that handgun", he is only restricting specifically your possession.
 
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ICBM

Member
Joined
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Messages
76
Location
McCordsville, IN
And I have a question for you: if IC 35-47-11.1-4 does not allow a county to enact or enforce a provision prohibiting or restricting the intentional display of a firearm at a public meeting (as you so astutely observed Hancock County has done), then what does it do?
Not sure which angle you're getting at but I'll address the two I see.

1.) They CAN still restrict the display of a firearm that is NOT a handgun.

IC 35-47-1-6
"Handgun"
Sec. 6. "Handgun" means any firearm:
(1) designed or adapted so as to be aimed and fired from one (1) hand, regardless of barrel length; or
(2) any firearm with:
(A) a barrel less than sixteen (16) inches in length; or
(B) an overall length of less than twenty-six (26) inches.

2.) Here is a precedent from a recent Indiana Appellate Court ruling in City of Evansville v. Magenheimer,

"In Dykstra, this Court held that Indiana Code chapter 35-47-11.1 did not authorize suits merely because a political subdivision had left an ordinance or measure on its books after the statute went into effect. Id. at 1108. This Court concluded that “the statute was meant to prevent the adoption of future ordinances that may conflict with state law and to prevent the enforcement of statutes that were in place at the time Indiana Code section 35-47-11.1-2 was adopted.” Id. (emphases added). However, the instant case is distinguishable from Dykstra in that, here, Evansville actually enforced its ordinance against Magenheimer."
 
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cce1302

Regular Member
Joined
Aug 8, 2008
Messages
270
Location
South Bend, Indiana, USA
Yes, they have two separate meanings, there is no denying that. But they do somewhat overlap, at least in this context.
no they don't
Scenario;

Public meeting in some random county building.

You have your handgun in an outside the belt holster and you have a License to Carry Handgun.

Because you have the LCH, you can take it into the building and attend the meeting
(at this point we are not discussing how it is carried, just that you can take it with you in general).

What you are saying is that the ordinance is lawful because it only prohibits "intentional display" not "possession" of the handgun.
No, I'm saying the ordinance is lawful because the IC specifically allows it. I posted it. I cited it. I comprehended it.
What I am try to say is that exemptions listed under the preemption statute state that they still can not restrict the possession of a LCH holder.

"IC 35-47-11.1-4
However, except as provided in subdivision (5) concerning a
building that contains a courtroom, a unit may not prohibit or
restrict the possession of a handgun under this subdivision in a
building owned or administered by the unit if the person who
possesses the handgun has been issued a valid license to carry
the handgun under IC 35-47-2."

Fine, lets look at the definition of possession...

"Definition of possession in English:

noun

1. The state of having, owning, or controlling something:

1.1 Law Visible power or control over something, as distinct from lawful ownership; holding or occupancy:"

-Oxford Dictionaries

You see that it mentions "the state of... controlling" in the first, and "Visible power or control over something" in the second.

Now, lets look at the definition of "Restrict"...

"Definition of restrict in English:

verb

1. Put a limit on; keep under control:

1.1 Deprive (someone or something) of freedom of movement or action:

1.2 (restrict someone to) Limit someone to only doing or having (a particular thing) or staying in (a particular place):

1.3 (restrict something to) Limit something, especially an activity, to (a particular place, time, or category of people):"


So, what the state laws say is that the county may not "restrict (Put a limit on) the possession (Visible power or control over something)."

Therefore, restricting the intentional display, is hence, restricting possession.
No it isn't, because possession is not the same as display.
What may be confusing to you and others is that the preemption section says "possession, carrying", while the exemptions with an LCH section only mention "possession."
The preemption section states "ownership, possession, carrying, transportation" which technically only needs the word "possession" without the other 3, because the "possession" encompasses the meanings over the others as well, and seems redundant.

The point of all of this is, that the word "Possession" has a broader meaning to it than you seem to believe.
That's the point? again, it's wrong. Possession does not encompass display in a public meeting, as evidenced by the statute that permits a county to restrict display, but not possession. It also doesn't cover ownership, carrying, or transportation. As you saw if you read the definition you posted, possession is "distinct from ownership." It's also distinct from display.
If a police officer comes up to you and says "Cover up your handgun", he is restricting your possession and how you carry.
No he isn't. He's restricting display.
If a police officer comes up to you and says "You can't have that handgun", he is only restricting specifically your possession.
Let's compare the definitions of display and possession (as promised), since it seems the definition of display has fallen by the wayside.

Display-
verb (used with object)
1.
to show or exhibit; make visible:
to display a sign.
2.
to reveal; betray:
to display fear.
3.
to unfold; open out; spread out:
to display a sail.
4.
to show ostentatiously; flaunt.
5.
Printing. to give special prominence to (words, captions, etc.) by choice, size, and arrangement of type.
6.
Computers. to output (data) on a CRT or other screen.


possess-
verb (used with object)
1.
to have as belonging to one; have as property; own:
to possess a house and a car.
2.
to have as a faculty, quality, or the like:
to possess courage.
3.
(of a spirit, especially an evil one) to occupy, dominate, or control (a person) from within:
He thought he was possessed by devils.
4.
(of a feeling, idea, etc.) to dominate or actuate in the manner of such a spirit:
He was possessed by envy.
5.
(of a man) to succeed in having sexual intercourse with.
6.
to have knowledge of:
to possess a language.
7.
to keep or maintain (oneself, one's mind, etc.) in a certain state, as of peace, patience, etc.

(Both definitions from dictionary.com)

Yes, one is often possessing something when he displays it, but possess doesn't cover the entire definition of display.

Not sure which angle you're getting at but I'll address the two I see.

1.) They CAN still restrict the display of a firearm that is NOT a handgun.

IC 35-47-1-6
"Handgun"
Sec. 6. "Handgun" means any firearm:
(1) designed or adapted so as to be aimed and fired from one (1) hand, regardless of barrel length; or
(2) any firearm with:
(A) a barrel less than sixteen (16) inches in length; or
(B) an overall length of less than twenty-six (26) inches.

2.) Here is a precedent from a recent Indiana Appellate Court ruling in City of Evansville v. Magenheimer,

"In Dykstra, this Court held that Indiana Code chapter 35-47-11.1 did not authorize suits merely because a political subdivision had left an ordinance or measure on its books after the statute went into effect. Id. at 1108. This Court concluded that “the statute was meant to prevent the adoption of future ordinances that may conflict with state law and to prevent the enforcement of statutes that were in place at the time Indiana Code section 35-47-11.1-2 was adopted.” Id. (emphases added). However, the instant case is distinguishable from Dykstra in that, here, Evansville actually enforced its ordinance against Magenheimer."
Yeah, I know what Guy and Ben are doing, but that precedent has nothing to do with your scenario, since state law specifically permits the language of the statute you're fighting against.

At the risk of reductio ad absurdum (though I believe that particular shark has already been jumped) let's apply your argument to another law on the books there in Hancock County.

Just a couple paragraphs ahead of the one you cite is this:

§ 130.01 DISCHARGE OF FIREARMS PROHIBITED.
(A) Outside the corporate limits of cities or towns, no person, other than a law enforcement officer, shall discharge a firearm or pellet gun within 300 feet of a residence, except when the discharge is permitted by law in the prevention of a crime or the apprehension of a criminal.
(B) Any person found to be in violation of this section shall be fined.
I have learned from your posts that:
1. "possession" encompasses anything that one can do while possessing a firearm, including display, ownership, carrying, and transportation. Just for the sake of your argument, I'll grant you these things to make my point. Don't get used to it, because it doesn't. They aren't interchangeable.
2. local governments are prohibited from restricting a person from possessing/controlling a handgun in any way except in a courthouse.


So, based on your argument, that the county may not put any limit on how an individual may control a firearm, the above statute does not apply to handguns, because it would be a limit to what one could do while controlling a handgun.
 
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