Roanoke County’s preempted parks ordinance is prompting calls for legal action

A Roanoke County parks ordinance that violates the state’s preemption statute is prompting calls for legal action

I recently wrote about a Roanoke County ordinance which seemingly imposes a complete ban on the possession and carrying of firearms inside county parks. As I pointed out in the original article, such an ordinance would be void due to Virginia’s preemption statute.

However, Roanoke County claims that their ordinance was brought into compliance with the  preemption statute by the addition of a clumsily-worded clause in March of 2008.  Let’s look at how the evolution of such an ordinance would occur according to Roanoke County …

Clearly Preempted Ordinance Banning all Carry and Possession in County Parks

Sec. 15-8. – Prohibited uses of parks.

(6)  … No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety … The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity.

Roanoke County’s Corrected Ordinance

Sec. 15-8. – Prohibited uses of parks.

(6)  … No person shall within a park use, carry or possess firearms, ammunition or combinations thereof, as expressly prohibited by statute, or air rifles, spring guns, pellet guns, paintball guns, bow and arrows, slings or any other forms of weapons potentially dangerous to wildlife and to human safety … The director may permit authorization for the use of a firearm or other potentially dangerous instrument, to be used in a park for a special event or county managed activity.

Well that clears it right up doesn’t it?  After that change, any citizen could easily read that ordinance and understand that it is now perfectly legal to carry in County parks.  Of course not!  And the same is true of a law enforcement officer or a magistrate who is perhaps unfamiliar with the history of the ordinance and the scope of Virginia’s preemption statute.  Sooner or later, someone is going to be deprived of their liberty because of this ordinance.

When you look at it from the viewpoint of an outside observer, it is really hard to imagine any reason that Roanoke would choose to use such a misleading tactic unless they had an invidious purpose such as chilling the rights of gun owners.  And many residents of Roanoke County seem to agree with that assessment.  Since my original article, numerous parties have expressed interest in mounting a legal challenge to the ordinance.

In anticipation of such an eventuality, let’s see what we can discover about how the county made the decision that this particular language was the absolute best way to address the fact that their ban was completely voided by the preemption statute.  Guided by Roanoke County Attorney Paul M. Mahoney’s defense of the ordinance from my original article, I surfed over the the Roanoke County Board of Supervisor’s official website which I must congratulate them on.  They have on-line access to meeting minutes going back all the way to 1973.

But I was interested in the March 2008 meetings referenced by Mr. Mahoney.  Where the parks ordinance amendments are concerned, there were three distinct events that occurred that March.  The first reading of the ordinance occurred at the March 11th meeting.  And then at the March 25th meeting, there was a work session concerning the proposed changes followed by a second reading and passage.  The relevant sections of the minutes are below:

March 11, 2008 First Reading

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March 25, 2008 Work Session

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March 25, 2008 Second Reading

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As you will have no doubt noticed by the time that you finish scanning all three of these, there is no substantive discussion of how they came to develop that particular wording. They simply state that the Assistant Director of Parks Mark Courtright, in consultation with the Parks, Recreation and Tourism Department, the County Attorney’s Office and the Roanoke County Police Department undertook the task of reviewing and updating the ordinance.

Where the firearms regulation in particular is discussed, it is simply noted that it was updated to “reflect the state statute.”  We can only assume they are referring to the preemption statute.  During the March 25th Work Session, the minutes reflect specific questions and points of debate concerning many of the changes being made to the ordinance but the firearms section contains no discussion at all.

At this point, the next step is to submit FOIA requests for all memos, emails, and working papers that any of the involved parties might have concerning the development of the “corrected” wording.  Stay tuned …

About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
This entry was posted in Abuse of Power, Dillon Rule, FOIA, Local Ordinances, Public Parks, Virginia. Bookmark the permalink.

11 Responses to Roanoke County’s preempted parks ordinance is prompting calls for legal action

  1. Pingback: Roanoke ordinance may run afoul of state preemption statute | Monachus Lex

  2. Jack says:

    So are you going to file the request?

  3. jmelvin says:

    John is there any way to determine if anyone has been convicted of violating this county code, despite the state’s “preemption” statute? If there are folks who have been convicted of violating this code, then harm may have already occurred.

  4. John Pierce says:

    Jack,

    Yes. I am filing a FOIA request. I will keep you informed of the results.

    John

  5. Jack says:

    John,

    Is there a time limit that they have to respond?

  6. John Pierce says:

    Jmelvin,

    I can search the appeals court records online and a quick look does not reveal any cases. However, you can only search the General District court records by party name or case number so I am not sure if anyone has been prosecuted for a violation of this ordinance although I suspect not since the supposed purpose is not to provide a valid platform for prosecution but rather to prevent people from exercising the right to begin with … “chill” the right. The real question is … Has anyone been harassed, detained, or arrested based upon the ordinance?

    John

  7. Jack says:

    Right, John. They know that they could not win any prosecution against a person for carrying in the park, as long as that person is otherwise carrying legally, and they likely haven’t tried.

    Their goal is to prevent as many people from doing it as possible by applying a “chilling effect.”

    In other words, they are trying to scare people who don’t understand their rights into not exercising them. If you do know your rights, though, and you “call their bluff”, there really isn’t anything they can do, and they know that and likely wouldn’t even try.

    I’d bet there aren’t any cases.

  8. Ceefour says:

    So..w3hat the county has done is make the parks a gun free zone and everyone knows that gun free zones are perfectly safe places to bring your family. Ignore the fact that the monsters who enter the GFZ with weapons do nor care about any law..NOT like a citizen with a ccw license and is law abiding . Some people just never learn do they?

    • Jack says:

      They haven’t made the parks a gun free zone… they cannot do that. What they have done, though, is word the ordinance in such a way that it is designed to confuse people who don’t’ know that they cannot make it a gun free zone.

      Here is a post I made on Facebook explaining what a “chilling effect” is.

      A “chilling effect” is a legal term that describes the result of wording in a law or ordinance that is purposefully placed there as to make a person hesitate before exercising a Constitutional Right.

      For example, if there was a local ordinance that said “Freedom of Speech may be exercised in Roanoke County as long as the topic of said speech is authorized by the Government. Violators of this rule will be subject to a fine not to exceed $500 and incarceration for a term not to exceed 30 days.”

      Well, as we know, the government does not authorize specific topics… so any topic is good. There is really no topic that would subject you to the penalty.

      However, someone who might not know better might think that their topic isn’t authorized and would hesitate before exercising that right to free speech, or not exercise it at all due to the fear that their topic is off limits.

  9. Jack says:

    Have you submitted a FOIA request yet? The email I sent them more than a week ago has gone (not surprisingly) unanswered.

  10. Pingback: VCDL’s Roanoke County picnic was a rousing success | Monachus Lex

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