State and Local Legal Blog

Some more about HB 2

August 19, 2013
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If a consensus can be gleaned from the news media’s interviews of various law enforcement officers, they seem unconvinced that, despite Article 3, Section 12 of our Constitution, we are an open carry state.  It seems that is not the way it’s taught at the Academy.  For example, while Representative Charles Busby (GOP-Pascagoula), interviewed by April H. Havens on gulflive.com[1], indicated he believed that all Mississippi citizens have a right to carry a weapon, but it cannot be concealed unless the citizen holds a carry permit, in which case the citizen can “carry it any way you want to.” Representative Busby went further:  “Anyone who isn’t a felon can strap a holster outside their clothes and openly carry a gun in Mississippi.”  That seems to answer the question of whether mental patients, or those who are impaired by alcohol or drugs; if the individual is not a felon, he can openly carry a gun in Mississippi.

 

However, various members of law enforcement in Representative Busby’s district, also interviewed by Ms. Havens, seem to disagree.  Per Moss Point Police Chief Keith Davis:  “In all my years in law enforcement, I’ve never understood that it was legal in Mississippi for someone to walk down the street with a gun for everyone to see.”[2]  Chief Davis is harking back to sub-section 18 of the “carry permit” statute which seems to support the Attorney General’s opinion:  Thus, it is illegal to carry the weapons described in Section 97-37-1(1) without securing a license as provided in Section 45-9-101, which license authorizes the carrying of a concealed pistol or revolver.”[3]  Jackson County Sheriff Mike Byrd expressed to Ms. Havens:  “The way I understand the law is that if you’re going to carry a weapon on your person, you must have a permit and it must be concealed.”

 

It’s the same in North Mississippi.  The Corinth Police Chief, David Lancaster, has asked the Attorney General to opine about a rally that is scheduled in Corinth City Park shortly after July 1.  He has also encouraged business owners to obtain signs banning guns in businesses, which he says must be visible from not less than 10 feet of the business entrance.[4]  Verona Police Chief Anthony Anderson and Tupelo Police Chief Tony Carlton are both concerned about how to enforce the law.  Prentice County Sheriff Randy Tolar, who holds the opinion that after July 1 “so long as a person isn’t a convicted felon and isn’t concealing their firearm, they can have it in public”[5] is establishing training for his force on how to address the issue of carrying unconcealed weapons.  Most police chiefs are awaiting further instruction at the Annual Association of Police Chiefs’ meeting in mid-June.

 

One thing that local law enforcement have in mind, and that is no doubt on the minds of forward thinking municipal and county legislative bodies, is whether any action can be taken in order to thwart open carry. In order to answer that question, one must consider the issue of preemption.  Federal preemption refers to the invalidation of a state law in conflict with a federal law.  The Supremacy Clause[6] of the U.S. Constitution ensures that any state laws which are in conflict with federal law will be invalid.  Likewise, there is a doctrine of state preemption which applies to ordinances or other local orders or resolutions which are in conflict with state law.  State preemption laws prevent local jurisdictions from enacting ordinances that irreconcilably conflict with state statutes or address matters in an area in which the legislature has demonstrated an intent to occupy the entire field of regulation.

 

So are localities preempted from regulating firearms?  Particularly when given broad authority to address nuisances in their communities and to take steps to protect public health and safety?  What about “home rule” after all?

 

Mississippi’s home rule statute came about in 1985 with the adoption of a “limited home rule” as reflected in Miss. Code Ann. §21-17-5.[7]   In addition to the exceptions to home rule which are expressly addressed in the statute, Attorneys General in Mississippi have often taken a restrictive view of preemption and indicated that if the state legislature had already addressed a subject, the municipality could not act. In the next post, we’ll discuss “home rule” and its impact on packing heat and lots of other things that happen in your community.

 



[2] Id.

[3] Of course, an attorney general’s opinion does not carry the force of law, but the statute does, and if anything, this sub-section seems to contradict the “open carry” law.

[5] Id.

[6] Article VI, Clause 2:  “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or the laws of any State to the contrary notwithstanding.”

[7] Home Rule:  “(1) The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances.  In addition to those powers granted by specific provision of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsection (2) of this section, the powers granted to governing authorities of municipalities in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi.

(2) Unless such actions are specifically authorized by another statute or law of the State of Mississippi, this section shall not authorize the governing authorities of a municipality to (a) levy taxes of any kind or increase the levy of any authorized tax, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for municipal elections or establish any new elective office, (d) change the procedure for annexation of additional territory into the municipal boundaries, (e) change the structure or form of the municipal government, (f) permit the sale, manufacture, distribution, possession or transportation of alcoholic beverages, (g) grant any donation, or (h) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the municipality does not have a property interest.

(3) Nothing in this or any other section shall be construed so as to prevent any municipal governing authority from paying any municipal employee not to exceed double his ordinary rate of pay or awarding any municipal employee not to exceed double his ordinary rate of compensatory time for work performed in his capacity as a municipal employee on legal holidays.

 

 

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Packing Heat Continued — thoughts on HB 2

August 12, 2013
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When visiting the basic statutes on weapons — carrying them concealed or otherwise — the question is:  What does the clear language of these statutes tell us?

Suffice to say that we can with certainty glean the following:

1.    Any person who carries any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon, or any muffler or silencer for any firearm, whether or not it is accompanied by a firearm, and carries it concealed (under the new definition) is committing a crime, specifically a misdemeanor for a first or second offense, and a felony for third and subsequent defenses.

2.    A person can carry these weapons concealed without being charged with a crime if he obtains a license, most often referred to as a “carry permit”.

3.    The Mississippi Department of Public Safety is responsible for issuing the license, assuming statutory requirements are met by the applicant.

4.    Local legislation cannot “preempt” these laws by restricting the possession, transportation, sale, transfer or ownership of firearms or ammunition or their components in its jurisdiction, except by statutory exception.

5.    Statutory exceptions allow limited local legislation, chiefly:

a.     To require citizens or public employees to be armed for personal or national defense, law enforcement, or another lawful purpose;

b.    To regulate the discharge of firearms within the limits of the county or municipality;

c.    To regulate the use of firearms in cases of insurrection, riots and natural disasters when necessary to protect the health and safety of the public; or

d.    To regulate the carrying of firearms at a public park, a public meeting of a county, municipal or other government body, at a   political rally, parade or official political meeting, and at a non-firearm-related school, college or professional athletic event.

What questions remain?

Perhaps a few.  For example, if an instrument is not defined by or listed in Miss. Code Ann. §97-37-1, but it is carried by someone who has a license to carry, duly issued by the Mississippi Department of Public Safety, is that individual guilty of violating §97-37-1? And to what end is the language of §45-9-101 (18) which states:  “…nothing in this section shall be construed to allow the open and unconcealed carrying of any deadly weapon as described in §97-37-1”?

Assuming that Mississippi is an “open carry” state, meaning that Mississippi citizens can carry unconcealed weapons of any sort without violating any law, does this right apply to all  Mississippi citizens, or only those who might qualify to obtain a carry permit?  In other words, can Mississippi citizens who suffer from a physical infirmity which prevents the safe handling of these designated weapons still carry them unconcealed upon their person?  What about those who chronically or habitually abuse controlled substances to the extent that they are impaired?  Or our citizens who chronically and habitually use alcoholic beverages to the extent that they are impaired?  And what of our mentally impaired or incompetent citizens?

And how about those places that, even with a carry permit, an individual cannot carry a concealed weapon?  Places like police stations, sheriff’s departments, highway patrol stations, courthouses, places that governmental bodies meet, schools, bars, places of worship and all those other regulated areas?  Under the open carry concept, can citizens carry unconcealed weapons there?

There remain many confusing area to be sorted out in HB 2.  Perhaps a revision in the 2014 session will be forthcoming.


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House Bill 2, Judge Kidd and packing heat

August 2, 2013
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                This summer, we have not only the 100 degree temperature and 90% humidity days to worry about.  There is another form of heat for this Mississippi summer and, just like the weather, we as Mississippi citizens may have little control over it.  Recent action in the 2013 regular session of the Mississippi Legislature redefining a concealed weapon seems to have raised more questions than it clarified.

                House Bill 2 was passed in order to bring clarification to the definition of a concealed weapon.  The bill defines concealed weapons as “hidden or obscured from common observation” and clarifies that a weapon is a concealed weapon if it is in a holster or other carry device, even if a portion of the weapon or holster is partially visible.  The bill also notes that Mississippi’s permit and licensing requirements for concealed weapons do not apply to unconcealed weapons.  Thus, the bill has been tagged by many as authorization for open carry of weapons in Mississippi.  The unintended consequences of this clarification are to bring to a rolling boil all sorts of issues associated with handguns and other dangerous weapons in Mississippi.  Gun control advocates are opposed to the law. Second Amendment aficionados are in favor of it. The run of the mill citizen is confused, if he’s keeping up with the debate at all, and law enforcement is confounded.

                The author of House Bill 2, Representative Andy Gipson (GOP-Braxton) says that this legislation only clarified the definition of a concealed weapon and did nothing to change any aspect of Mississippi law that deals with weapons that are not concealed.  Gipson was apparently referring to Article 3, Section 12 of the Mississippi Constitution, which states:  “The right of every citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power when thereto legally summoned, shall not be called into question, but the legislature may regulate or forbid carrying concealed weapons.” According to the NRA-ILA website, Gipson, in sponsoring House Bill 2 which it claims as NRA-backed legislation, was attempting to make “important changes to vague and problematic language in Mississippi’s carry laws.”[1]  The article goes further to suggest that the legislation addresses a recent opinion by the Attorney General “that has caused additional confusion and concern among carry permit holders and Second Amendment advocates.”[2]  The “average Joe” in Mississippi (based on comments made in response to several blogs and news media articles or videos) seems to have no idea that many firearms advocates characterize Mississippi as an “open carry” state.  OpenCarry.org defines Mississippi as a “licensed open carry state”[3] while the International Business Journal categorizes it as “open carry with restrictions”[4] and a number of other sites call it an “anomalous open carry state”, which translated seems to mean that Mississippi weapons laws may appear confusing to the onlooker.

More next week…….as Judge Kidd’s temporary injunction runs out.  Judge Kidd in Hinds County had issued an injunction, enjoining the effectiveness of HB 2 (set to be effective 7/1/2013) until a hearing on July 8, 2013 in Hinds County.

 



[2] Id.

 


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Warrentless Cellphone Tracking

August 1, 2013
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The Fifth Circuit Court of Appeals (our circuit) has said that governmental authorities can extract historical location data from telecommunications carriers without the necessity for a search warrant.  The Court’s rationale:  the search is not per se unconstitutional because location data is a “business record” and not protected by the 4th Amendment.  The 5th Circuit case is the first to meet this constitutional issue (warrant-less search) head on.  And the decision surprised some court watchers.  Recently, the highest court in New Jersey required police to obtain a warrant to track a suspect’s whereabouts in real time.  This was based on the New Jersey Constitution, not our federal constitution.

This leads to just another reason for states to want to pass legislation to limit big government.  This will probably not happen in Mississippi, since we are such a law and order state, but in other more liberal areas of the country, you can bet this ruling is hard to swallow.  But other states have already taken notice.

Montana was the first state to pass a law requiring police to obtain a warrant before tracking the location of a suspect in a criminal investigation through his cell phone.  Montana HB 603 was signed into law on May 6.  Also in May, in Smallwood v. State, the Florida Supreme Court said that police could seize a cellphone without a warrant but had to obtain a warrant to search it.

The California Legislature had passed a bill similar to Montana’s HB 602l in its 2012 session, but the Governor vetoed it and the veto was not overridden.  Governor Brown’s reasoning in vetoing it was that it did not strike the “right balance” between law enforcement and privacy.

The New Jersey case, discussed above, is now pending before the Fourth Circuit Court of Appeals.  The New Jersey Supreme Court said:  When people enter into cellphone contracts…”they can reasonably expect that their personal information will remain private.”  I wonder what the 4th Circuit will say?  Usually when two or more circuits are in conflict, the US Supreme Court may be willing to take one of these cases on writ of certiorari in order to resolve the conflict between the circuits.  But sometimes not.

The 5th Circuit is the only federal court that has addressed warrant-less cell phone discovery in real time so far, but some who study the judiciary think that it is in conflict with a US Supreme Court decision from January 2012 which suggests that the current court may be prepared to apply broad privacy principles to bring the 4th Amendment ban on unreasonable searches into the digital age.  This case, however, is distinguishable because it was a GPS tracker case.


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