Got pulled over tonight. An officer saw a box of .22 under my seat that I’d forgotten about and started asking me about any guns I had in the car. I did have a few in the trunk - I’d recently gone shooting. So he’s grilling me, asking for details of make and model (why I have no idea, what am I going to say? I have babykiller mark 4 and an RPG-7).
There’s a municipal statute in my city (9.32.080) that you can’t carry a gun in your car unless it’s necesary for your job (like armed guard) or you’re on the way to some sporting purpose. However, recently they passed into law that with certain exceptions not relevant here, city ordinances could not create gun laws stricter than state law - IOW a state-wide pre-emption.
Anyway - he informs me that I’m not allowed to be carrying guns in the car unless I’m actually going to or from sport shooting, but acts like he’s letting me off the hook anyway. He asked if I had any guns in the passenger compartment, and I didn’t - he then tells me that it’d be illegal. Not wanting to argue enough to piss him off (I haven’t done anything wrong and he’s going to let me go), I say in as non-argumentative a tone I can “actually, last year they passed a statewide pre-emption law that renders that law unenforcable.”
He told me that no - it’s a perfectly valid city ordinance and they will enforce it.
I’ve been considering carrying a gun in the car - it’s now clearly legal yet from what I’ve read on some forums, the police here seem to have the attitude that they’re above the state-wide preemption law and they’re going to enforce the (now nullified) statutes anyway. I’m not sure how much is ignorance of the law, and how much is just being dicks.
So if I excercise my legal rights and carry a gun in my car, what would happen? Would it help for me to carry a printout of the laws that made it clear that I was doing so legally? If they arrested me, would the DA immediately throw out the case or would I actually have to go to court to resolve the issue? Would I be entitled to any sort of compensation for the false? erroneous? arrest since they’re enforcing an unenforcable law?
Edit: Related - open carry is legal generally in Nevada and the pre-emption also nullifies city bans on open carrying (not 100% sure my city bans it, I haven’t found the law but heard there’s an ordinance). Other people have asked the police to confirm that open carrying is legal - but in some cases their position seems to be “it’s legal, but we’ll detain you if you do it” - do they have any grounds for this?
I would check with a lawyer licensed to practice law in your area and expert in these laws if it is, in fact, legal for you to carry a gun in the passenger compartment. Forums are all well and good but I would not rely on them to keep you out of jail. Get a written opinion from a lawyer and you have some defense if the lawyer is wrong and you get busted.
I would think state law trumps city ordinances. That said it may be the police are obliged to enforce the city ordinances even if they are trumped by state law. The police are not the courts, it is not for them to decide when a law is in error (although in practice they may well be choosy in what they want to enforce). As such, you may well get arrested for carrying a gun in violation of city ordinance. It is then up to a DA to decide whether to prosecute and they may well find there is no case and let you go. You still have all that hassle. If the DA does prosecute then you have your test case and argue to the court that the ordinance is in error. If they agree the ordinance gets tossed, if not then have fun with appeals and sitting in jail/paying fines till it all gets sorted.
“Never try to teach a pig to sing; it wastes your time and it annoys the pig.” Robert Heinlein
Arguing law with the LEO is generally futile. The DA would probably kick the charge and the judge certainly would. Not sure what level of offence it is/was, but it’s possible you could spend a weekend in jail before getting to see a judge to petition dismassal. Then you’ll have to jump through hoops to get your weapon returned.
So by all means, carry if you wish, but be prepared for the hassles which can ensue.
Most likely, you can’t really do anything unless someone actually tries to enforce the law, meaning that actually lay a charge and ask for your plea.
If all they’re doing is stopping you and issuing warnings, there’s probably not much you can do, but discuss the issue with a lawyer if it’s something that you believe is worth pursuing.
There have been several cities in a couple of states trying to get around or push the envelope regarding firearm preemption laws. Pennsylvania has recently seen a couple of them.
This bullshit has to be met with lawsuits in order to stop it. Local officials need to have their wee-wee’s smacked, and the voters who put them there need to lose their tax dollars via legal costs.
SenorBeef, please go into the Nevada forum over on Open Carry.org and report your story. It may be the first step to get the ball rolling against this nonsense!
This sounds as it might be as much a political question as it is a legal one. I would not like to be caught in the middle of a pissing match between cuty/county/state governments. An elected DA might or might not want to press charges if it might improve the chances of re-election, even knowing that the charges might get tossed by a judge. An elected local judge might want to enforce a locally passed ordinance even if some state law theoretically nullifies it – the judge might decide it’s not his place to overturn local laws. So maybe you end up convicted of something and get sent up the food chain to an appeals court, even if all the parties are aware of the state law that trumps the local one.
How exactly are state preemptions enforced? Can a local municipality forever play a cynical game of arresting people under an invalidated ordinance knowing that each and every charge will be dismissed or overturned, but using the whole merry-go-round as quasi-punishment for violating the ordinance? Who has the authority to tell the local cops “stop this shit- NOW.”?
As a practical matter, if you really are interested in challenging the local ordinance, probably the safest way is to hire a lawyer to confirm that what you want to do is legal under state law and have the lawyer write a letter to the municipality asking for clarification of the city’s position. Best case, the city says “Yeah, you’re right, it’s not a legal ordinance anymore” and you carry around a copy of the city’s response to show to police who haven’t gotten the memo, and everybody gets on with their lives.
If the city’s response is not satisfactory, your attorney could then discuss legal steps to take. Worst case that involves arranging for the police to enforce the ordinance so it can be challenged in court, but there may be less dramatic possibilities. And even if there aren’t, better to know what your game plan is before the enforcement.
We recently went through something somewhat similar here in Wisconsin. Open Carry is legal under state law, and the firearms preemption law prohibits municipalities from having local ordinances against it.
So what some agencies were doing was charging Oc’ers with disorderly conduct.
About 2 months ago the Attorney General came out with an advisory opinion that Open Carry is not only legal, it is protected under the State Constitution, and that it is not an act of disorderly conduct.
What can the AG do if he’s continually disobeyed? I believe he has the authority to revoke an officers law enforcement certification, but YMMV depending on what state you’re in.
Right, never argue with the cop in the field, let your lawyer do it in the courtroom.
No matter what, you’d lose here: you’d lose a period of time in jail, the bail fee, you attorney fees, and possibly you’d never see the guns again. The arrest would be on your record.
Should the municipality make a practice of attempting to enforce ordinances which are preempted by state law, any aggrieved party should be able to bring a successful action in state court for declaratory and injunctive relief: a declaration that the ordinance is invalid, and an injunction against enforcing it. The prosecuting authority may also be liable for malicious prosecution under NRS 199.310.
One would probably be well-advised to hire an attorney to shepherd the process, keeping in mind that it will cost one a bunch of money, and if one does not have or is not willing to expend such, one is most likely hosed. Or one could wait for somebody with greater means to take up the cause, but the sad fact is that sometimes justice costs money.
Also, I’m not sure why the [sic] after “injunctive”… I’m still not a lawyer but I believe my terminology is correct. Am I wrong?
You also have state legislators (and a Governor’s office) who might not look kindly on local yokels disregarding laws that they passed, laws specifically intended to limit the actions of local government.
If you’re serious about it, go down to the local police station, without weapons in the car, and ask them point blank about the new law and their intention to abide by it.
But the Attorney General has the authority to take action immediately, whereas the legislature needs to have committees, take votes, yadda yadda yadda., in order to do anything about it.
Here in Wisconsin our current idiot Governor opposes the preemption law and wants it repealed, returning us to a nightmare patchwork of different laws all over the state.
I’d call the NRA. I would presume they have a legal fund setup to chase after things such as this and they will foot the bill to take it to court.
Of course resources are always limited, even for the NRA, so whether they would deem it a worthwhile effort or not only they can say (and presumably they’d want to think they have a good chance at success which while this seems like it would have a good chance in the law it is sometimes not so clear).
I like the idea of consulting a lawyer to confirm you are in the right.
After that, I would attend a city council meeting and recommend they rescind the ordinance, noting that a lawsuit could cost the city a lot of money and bad publicity. If they rescind it, great. If not, it’s now a matter of public record that the issue has been brought to the council’s attention. At this point you can contact the NRA and ask them if they’d fund a lawsuit if you are willing to deliberately get charged with violating it.
Again, my advice is to start with a letter (including the legal background). Not to the police, but to the Mayor/Town Administrator who will hopefull consult the City Attorney. Might solve things quickly and easily, and if not, you can always escalate, either through the city’s elected officials or legal avenues.