State law has local agencies reviewing gun-ban policies

vhoneycutt@herald-leader.comFebruary 7, 2013 

  • What's the law?

    65.870 Local firearms control ordinances prohibited — Exemption from immunity — Declaratory and injunctive relief.

    (1) No existing or future city, county, urban-county government, charter county, consolidated local government, unified local government, special district, local or regional public or quasi-public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations may occupy any part of the field of regulation of the manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof.

    (2) Any existing or future ordinance, executive order, administrative regulation, policy, procedure, rule, or any other form of executive or legislative action in violation of this section or the spirit thereof is hereby declared null, void, and unenforceable.

    (3) Any person or organization specified in subsection (1) of this section shall repeal, rescind, or amend to conform, any ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action in violation of this section or the spirit thereof within six (6) months after July 12, 2012.

    (4) Pursuant to Section 231 of the Constitution of Kentucky, insofar as any person or organization specified in subsection (1) of this section is considered an agent of the Commonwealth, it is the intent of the General Assembly to exempt them from any immunity provided in Section 231 of the Constitution of Kentucky to the extent provided in this section. A person or an organization whose membership is adversely affected by any ordinance, administrative regulation, executive order, policy, procedure, rule, or any other form of executive or legislative action promulgated or caused to be enforced in violation of this section or the spirit thereof may file suit against any person or organization specified in subsection (1) of this section in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief. A court shall award the prevailing party in any such suit:

    (a) Reasonable attorney's fees and costs in accordance with the laws of this state; and

    (b) Expert witness fees and expenses.

    (5) If any person or organization specified in subsection (1) of this section violates this section or the spirit thereof, the court shall declare the improper ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action specified in subsection (1) of this section null, void, and unenforceable, and issue a permanent injunction against the person or organization specified in subsection (1) of this section prohibiting the enforcement of such ordinance, administrative regulation, executive order, policy, procedure, rule, or any other form of executive or legislative action specified in subsection (1) of this section.

    (6) A violation of this section by a public servant shall be a violation of either KRS

    522.020 or 522.030, depending on the circumstances of the violation.

    (7) The provisions of this section shall not apply where a statute specifically authorizes or directs an agency or person specified in subsection (1) of this section to regulate a subject specified in subsection (1) of this section.

    Source: Lrc.ky.gov/krs/065-00/870.pdf

  • What's the Bottom Line?

    State and local governments are generally prohibited from regulating the open carry of deadly weapons. This has always been the law, and has not changed recently, through HB 500 or any other law. The state can make, and has made, laws governing regulation of concealed weapons. Cities are generally prohibited from regulating concealed weapons as well as openly carried weapons, except as described above. HB 500 simply broadens the coverage of this prohibition on local gun control and establishes clear penalties for violating the law.

    Source: Klc.org/news/2006/Update_on_Gun_Control_Laws

The Lexington-Fayette Health Department has a sign banning firearms from its building. The public library has a sign on its doors, banning concealed weapons. And Lextran, Lexington's public transit authority, has signs that ban firearms from its buses and its property.

But officials with the three agencies say they are taking a closer look at a recent revision to state law to see whether posting the signs violates the law.

Whether all health departments, libraries and transit authorities in Kentucky may no longer regulate firearms as a result of the revision is not an easy matter to address, because there's no "blanket answer," said Lexington lawyer Christopher Hunt, who specializes in gun-related cases.

The revision, which went into effect last month, was made to beef up a Kentucky law prohibiting a city, county or merged government from regulating firearms. It extended the reach of the old law to include more types of local governments and local government agencies, including Louisville's consolidated local government, that are barred from regulating firearms.

Newly added types of government that may not regulate firearms include charter, county and consolidated local governments; special districts; and a local or regional public or quasi-public agency, board, commission, department or public corporation.

As some local governments officials are determining how the revision affects them, they are analyzing another state law that permits a city, county, or merged government to ban concealed deadly weapons from their buildings if visible signs are posted.

Laura Ross, legal services counsel for the Kentucky League of Cities, said the organization had received "quite a few calls" from government officials trying to clarify and understand the requirements of the new law.

Since 1891, the Kentucky Constitution has prohibited cities from banning the open carry of deadly weapons anywhere on city property, according to the KLC analysis. KLC said the revision clarifies what regulation is prohibited, which types of local government fall under the statutory requirements, and the consequences of breaking the new law. The revised law says that citizens can sue local governments that try to regulate firearms, and if the local governments lose, courts are directed to make governments pay the prevailing citizen's legal fees.

Some government agencies "think they can just put a sign up" to prohibit firearms, said state Rep. Bob Damron, D-Nicholasville, who presented the revision as House Bill 500 in the 2012 General Assembly. Damron said local officials need to understand "what the constitution allows them to do."

"The only entity that can override the state constitution is the federal government," he said.

A closer look

Hunt, the Lexington lawyer, said it's possible that local government agencies have long violated state laws by prohibiting firearms — openly carried and concealed — and that has been pointed out by Damron's legislation.

Several agency officials told the Herald-Leader that either they were unaware of the law or they needed to review their policies to see whether they need to remove signs that say "no guns."

Wayne Onkst, the state librarian and commissioner of Kentucky Department for Libraries and Archives, said he told library staffers who asked for information about the legislation that they cannot stop people from openly carrying weapons into their buildings under House Bill 500. Onkst said he has encouraged library officials to seek a legal opinion on whether they can post signs prohibiting concealed deadly weapons.

Hunt, the lawyer, said depending on the extent of local government oversight, he might advise library officials that they could not prohibit concealed deadly weapons.

A sign posted in the window of the Lexington Public Library on Main Street states that concealed deadly weapons are prohibited.

Lexington Public Library executive director Ann Hammond told the Herald-Leader that she has sought an opinion from the library's attorney on that ban.

Hammond said she could not discuss the legal opinion she received until she talked to library board members.

Jill Barnett, spokeswoman for Lextran, said the transportation company "will take a look at it and see if we need to make any updates to our policy."

Barnett said she thinks the ban was appropriate under state laws. Damron, however, said he didn't think signs that prohibit firearms can be posted on buses.

Kevin Hall, a spokesman for the Lexington-Fayette Health Department, said a sign posted on the front door has a picture of a gun with a slash through it saying that firearms and other weapons are prohibited.

The health department has requested legal guidance on whether the signs may stay, Hall said in an email.

The agency's "Violence in the Workplace — External Customers" policy, which was approved in September 2012, is silent on firearms but addresses threatening behavior, he said.

A controversial law

On Thursday, three liberal Kentucky lawmakers —Rep. Jim Wayne, D-Louisville, Rep. Mary Lou Marzian, D-Louisville, and Sen. Kathy Stein, D-Lexington — said they plan to file identical legislation in the House and Senate that, among other things, would essentially allow local governments to regulate guns. It also would prohibit guns on college campuses and require background checks for private gun sales to close the so-called "gun-show loophole."

Stein said she voted against House Bill 500 in 2012.

"I think we (should) give these governmental agencies the ability to look at their situations and whether or not it's appropriate for guns to be there," she said.

The revised law has drawn concern and changes in Louisville, where previously guns had not been allowed in city buildings.

"Folks can bring firearms into the mayor's office, in parks, in the community centers," as long as they are not concealed, said Chris Poynter, spokesman for Louisville Mayor Greg Fischer. "The mayor is concerned for the safety of employees. He is also concerned for the safety of citizens who use our parks and services, but we are complying.''

Guns were previously not allowed at the Louisville Zoo.

Louisville Zoo spokeswoman Kyle Shepherd said the zoo has removed a sign that prohibits concealed deadly weapons.

In Lexington, the mayor's spokeswoman, Susan Straub, said no changes are needed for policies regarding Urban County Government buildings.

"We were aware that state law concerning firearms supersedes local ordinance," Straub said. "So, in following the law, our policy has been to prohibit concealed firearms for property or buildings the city owns and controls.

Straub said, "There are always security concerns, and we take them seriously," so the city has "stepped up our police presence in City Hall and improved our security operation."

Until recently, Greenup Fiscal Court would not allow people to openly carry a gun into the fiscal court room. The fiscal court lifted that policy, Greenup County Judge-Executive Bobby Carpenter said.

Carpenter said no one had ever tried to bring a gun to a fiscal courtroom, but he didn't agree with or understand why the revision was passed by the 2012 General Assembly.

"I thought it was a bad idea," Carpenter said. He said the December shooting at a Connecticut elementary school, when a man killed 20 children and six adults, was on his mind as the fiscal court complied with the law. Marshall County Judge-Executive Mike Miller said he took down signs prohibiting firearms in a park, but that because of the large numbers of children who play there, "I just have a little fear about allowing firearms."

Overall, the revised law, Damron said, "has given the citizens of the Commonwealth recourse against governments who overstep their bounds on the regulation of firearms."

The confusion, Damron said, "points out that people don't really read the constitution of the Commonwealth."


What's the law?

65.870 Local firearms control ordinances prohibited — Exemption from immunity — Declaratory and injunctive relief.

(1) No existing or future city, county, urban-county government, charter county, consolidated local government, unified local government, special district, local or regional public or quasi-public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations may occupy any part of the field of regulation of the manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof.

(2) Any existing or future ordinance, executive order, administrative regulation, policy, procedure, rule, or any other form of executive or legislative action in violation of this section or the spirit thereof is hereby declared null, void, and unenforceable.

(3) Any person or organization specified in subsection (1) of this section shall repeal, rescind, or amend to conform, any ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action in violation of this section or the spirit thereof within six (6) months after July 12, 2012.

(4) Pursuant to Section 231 of the Constitution of Kentucky, insofar as any person or organization specified in subsection (1) of this section is considered an agent of the Commonwealth, it is the intent of the General Assembly to exempt them from any immunity provided in Section 231 of the Constitution of Kentucky to the extent provided in this section. A person or an organization whose membership is adversely affected by any ordinance, administrative regulation, executive order, policy, procedure, rule, or any other form of executive or legislative action promulgated or caused to be enforced in violation of this section or the spirit thereof may file suit against any person or organization specified in subsection (1) of this section in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief. A court shall award the prevailing party in any such suit:

(a) Reasonable attorney's fees and costs in accordance with the laws of this state; and

(b) Expert witness fees and expenses.

(5) If any person or organization specified in subsection (1) of this section violates this section or the spirit thereof, the court shall declare the improper ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action specified in subsection (1) of this section null, void, and unenforceable, and issue a permanent injunction against the person or organization specified in subsection (1) of this section prohibiting the enforcement of such ordinance, administrative regulation, executive order, policy, procedure, rule, or any other form of executive or legislative action specified in subsection (1) of this section.

(6) A violation of this section by a public servant shall be a violation of either KRS

522.020 or 522.030, depending on the circumstances of the violation.

(7) The provisions of this section shall not apply where a statute specifically authorizes or directs an agency or person specified in subsection (1) of this section to regulate a subject specified in subsection (1) of this section.

Source: Lrc.ky.gov/krs/065-00/870.pdf


What's the Bottom Line?

State and local governments are generally prohibited from regulating the open carry of deadly weapons. This has always been the law, and has not changed recently, through HB 500 or any other law. The state can make, and has made, laws governing regulation of concealed weapons. Cities are generally prohibited from regulating concealed weapons as well as openly carried weapons, except as described above. HB 500 simply broadens the coverage of this prohibition on local gun control and establishes clear penalties for violating the law.

Source: Klc.org/news/2006/Update_on_Gun_Control_Laws

Valarie Honeycutt Spears: (859) 231-3409. Twitter: @vhspears.

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