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[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. 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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Attorney General Holder is sore about the Shelby County decision.

July 31, 2013
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And who would be surprised?  Mid-July, about 3 weeks after the Shelby County decision (the one that found Section 4 of the Voting Rights Act unconstitutional, which meant that preclearance by the DOJ is no longer required under Section 5, which only applies to jurisdictions identified by Section 4) he has intervened in Texas asking the federal courts there to make Texas continue seeking preclearance.

I have been searching to see if he suggested a substitute to Section 4 which could be applied to “Texas”.  Frankly, I don’t think that General Holder is going to have a lot of success with this matter.

Governor Bryant stated yesterday that he would fight any effort to make Mississippi return to a federal preclearance process for election changes.  Of course, one of The Governor’s (and the Secretary of State’s) big pushes is for Voter ID, which Holder (and DOJ in general) opposes.

While there are lots of arguments out there about disenfranchisement as a result of a Voter ID statute, it simply doesn’t seem unreasonable to me.  In Mississippi, as in most states, I suspect, you get a voter ID card when you register.  If a photo is required, then I am sure that the counties in Mississippi could buy the photo equipment, or perhaps work a mutual deal with the Highway Patrol, which is equipped to take photos.

The Governor said that in November of 2011, 61% of Mississippians favored Voter ID, but he gave no source for his poll results that I am aware of.  However, as I said, it doesn’t seem very onerous a requirement to me — but that’s just my opinion.  The rest of this post is “fact”.


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The fate of Mississippi’s murdering juveniles

July 29, 2013
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Mississippi is one of the states that demands life without parole for juveniles who are found guilty of some levels of homicide.  For example, under the capital murder (Miss. Code Ann. Sections 97-3-21 and 99-19-101 (1972) and simple murder (Section 97-3-21), life without parole is a mandatory sentence.  See Mississippi’s Probation and Parole Law, Miss. Code Ann. Sections 47-7-3(1)(f) and (h).  Likewise, a juvenile who is a habitual offender (two prior felony convictions) would also be subject to life without parole.  See Miss. Code Ann. Sections 99-19-81 and 99-19-83.

In 2005 the US Supreme Court, in Roper v. Simmons, 543 US 551, 578 (2005), determined that the 8th and 14th Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when they committed their crimes.  In Graham v. Florida, 130 SCT 2011 (2010), the Court determined that a juvenile offender convicted of a non-homicide offense and facing a sentence of life without parole as a habitual offender could not be sentenced to life without parole.  This case categorically bans life without parole in this situation, and any challenge of a like sentence should be filed under Graham as opposed to Roper.

Now, in Miller v. Alabama, ___ US ___ (2012), the Court has determined that the 8th Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.  Miller did not categorically forbid life without parole sentences for juveniles, but does urge the sentencing judge, even in murder cases, to consider the mitigating qualities of youth before imposing such a sentence.  The Court stated, in pertinent part:  “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences.”

The Court also asked the sentencing judge to consider “…family and home environment that surrounds [the juvenile] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional.”  The Court suggested that the judge also include a consideration of the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him and a child’s capacity for change and rehabilitation.

Anticipate that your Mississippi Supreme Court will resolve this issue soon, as there are a number of post-petition claims already filed before the Court.

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Secession is not an ugly word…

July 26, 2013
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particularly when it isn’t Southerners that are bandying it around.  As I write, Vermont is discussing secession (which actually they do every year or two — so that is not big news), but so are northern counties in Colorado.  But these counties don’t want to secede from the US — just from Colorado.

The last time a portion of a state seceded from another was way back when West Virginia was created.

The amazing thing is that, when touted by non-Southerners, secession is not an ugly word.  I can only guess that while we Southerners were chafing under the yoke of big government telling us how to live in the 1860s, nobody was telling other folks what they could and could not do.  But now it looks like all of us are chafing under the yoke of big — and some would argue — ineffective government.  It’s a great time to be interested in political policy




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BIG News from U. S. Supreme Court

June 25, 2013
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A big week at the court:  The justices released two important decisions, Fisher v. University of Texas, which is a very narrow opinion that strikes down a portion of UT’s acceptance criteria which is based on affirmative action, and Shelby County v. Fisher, which declares portions of Section 5 of the Voting Rights Act unconstitutional.  Both opinions are long.  More on each later.

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Mississippi Tort Claims Act — governmental misconduct

February 25, 2013
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The case of Tawanda Sandifer is a tragic story of a disturbed young woman who clearly was not getting the support she may have needed from her home, her school, her friends and family, and the government officials who are charged with her protection.

There are many lessons to be learned by Tawanda’s tragic death in 2006, but one of them has to do with liability for governments for behavior of their employees.

Lesson One:  Governmental immunity is waived for employee misconduct only if an employee is acting within the course and scope of his employment.  City of Jackson v. Powell, 917 So. 2d 59, 73 (Miss 2005).

Lesson Two:  An employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employees if the employee’s conduct constitutes…any criminal offense.  Miss. Code Ann. Section 11-46-7 (2).

Lesson Three:  Policemen who commit criminal activities with juveniles while they are not acting “within the course and scope of their employment when the alleged misconduct occurred” and were not “acting in furtherance of their employers’ business” do not subject their employer to any tort.

Lesson Four:  An employee’s personal unsanctioned recreational endeavors are beyond the course and scope of employment.  Cockrell v. Pearl River Valley Water Supply Dist., 856 So.2d 357, 362 (2004).

Lesson Five:  Do not depend on a governmental body to seriously investigate misconduct.  City of Jackson v. Powell, at 74.  “There is no doubt that the choice to employ and the manner of supervision of police officers does affect public policy, and the make-up of the police force interently affects the social policy of a city.  The manner in which a police department supervises, disciplines and regulates its police officers is a discretionary function of the government and thus the city is immune to suit under Section 11-46-9 (1) (d).

Oh woe are we!

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Mississippi Tort Claims Act — What about discretionary undertakings?

September 17, 2012
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In the case of Pratt v. Gulfport-Biloxi Regional Airport Authority (GBRAA), No. 2009-CT-01202-SCT (September 6, 2012) the Mississippi Supreme Court addressed a consideration of whether discretionary or ministerial acts compromised the ability of the Mississippi Tort Claims Act [MTCA] is applicable in actions against a governmental entity.  The MTCA provides an exclusive remedy for claims against governmental entities (See Mississippi Code Annotated, Section 11-46-7 (Rev. 2002)  It is undisputed that the GBRAA is a political subdivision subject to the MTCA.

Under the MTCA, governmental entities are not liable for claims arising from discretionary functions.  There is a two-part public function test which was set forth in Miss. Transp. Comm’n v. Montgomery, 80  So. 3d 789, 795 (Miss. 2012):  did the activity in question (on which the claim for damages is based) involved an element of choice or judgment?  If so, did the choice or judgment involve social, economic or political-policy considerations?

To answer the first question, the Court must consider whether the activity was discretionary or ministerial.  A duty or activity is discretionary if it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.  A ministerial function is one positively imposed by law and required to be performed at a specific time and place, removing the officer’s or entity’s choice or judgment.

Protected discretionary functions can be made at an operational or planning level and include day-to-day decisions made by governmental actors.  While the United State Supreme court has said “if the routine or frequent nature of a decision were sufficient to remove an otherwise discretionary act from the scope of the exception, then countless policy-based decisions by regulators exercising day-to-day supervisory authority would be actionable.”  The Mississippi Court, following this logic, said that the fact that day-to-day decisions may be routine or frequent does not remove them from protection as discretionary functions attendant to the operation of the public entity.

When the Court finds that the activity was discretionary, the second step of the public-policy function test requires that the Court decide whether the choice or judgment involved social, economic or policy considerations.  “State tort standards cannot adequately control those government decisions in which, to be effective, the decision maker must look to considerations of public policy and not merely to established professional standards or to general standards of reasonableness.”  Dancy v. E. Miss. State Hosp., 944 So. 2d 10, 17 (Miss. 2006).

Since the cause of action was based on actions occurring as the GBRAA was making improvements to its facility, the authority had taken economic factors into consideration, and the use of airstairs for temporary access to the tarmac, adding anti-slip tape to the stairs, and other decisions made during construction were for the convenience and safety of the airport patrons and are daily decisions that fall under the overall operation of the airport, thus satisfying the second part of the public-policy functions test.  GBRAA is entitled to discretionary-function immunity against this claim under the MTCA.

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