Preemption Violation?

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  • Compatriot G

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    I live in New Castle. A couple of months ago I noticed the city had put up new signs in our main city park (Baker Park). These signs had park rules on them. The park has been closed to vehicular traffic until Easter weekend. I drove up to one of the signs this week. I noticed one of the rules stated, "No fireworks, fires or weapons."

    Would this violate the preemption statute? I am familiar with the Hammond case. However, if I remember correctly, Hammond's signs existed prior to the law going into effect. Does "weapon" include firearms?

    I suppose I need to go to a city council meeting and raise the issue with the mayor and the city council.


    Or I guess I could just OC through the park and see what happens.
     

    Expat

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    This has come up several times. I think the local legal beagles said that there is no real violation until they enforce it. Several people have reported similar signs across the state.
     

    fullmetaljesus

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    Inal but I believe that state law trumps local laws. If there is no state /fed law saying no park carry, you're good.
     

    KellyinAvon

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    I live in New Castle. A couple of months ago I noticed the city had put up new signs in our main city park (Baker Park). These signs had park rules on them. The park has been closed to vehicular traffic until Easter weekend. I drove up to one of the signs this week. I noticed one of the rules stated, "No fireworks, fires or weapons."

    Would this violate the preemption statute? I am familiar with the Hammond case. However, if I remember correctly, Hammond's signs existed prior to the law going into effect. Does "weapon" include firearms?

    I suppose I need to go to a city council meeting and raise the issue with the mayor and the city council.


    Or I guess I could just OC through the park and see what happens.

    Morning CG, it's been a while. If the park is city property and not leased to another (private) entity this would violate Indiana's preemption statute (IC 35-47-11.1-2)

    IC 35-47-11.1-2 Political subdivision regulation of firearms, ammunition, and firearm accessories prohibited Sec. 2. Except as provided in section 4 of this chapter, a political subdivision may not regulate:
    (1) firearms, ammunition, and firearm accessories;
    (2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories; and
    (3) commerce in and taxation of firearms, firearm ammunition, and firearm accessories.
    As added by P.L.152-2011, SEC.4.

    https://law.justia.com/codes/indiana/2017/title-35/article-47/chapter-11.1/section-35-47-11.1-2/
     

    Compatriot G

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    This has come up several times. I think the local legal beagles said that there is no real violation until they enforce it. Several people have reported similar signs across the state.
    That is what I understand about the Hammond case. No violation unless they try to enforce it.

    It is interesting that the old signs stated nothing about prohibiting weapons.
     

    Compatriot G

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    The park is city property and isn't leased to anybody.

    However, there is a softball diamond in the park that is used by the high school girl's softball team. Does this make it school property?
     

    KellyinAvon

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    The park is city property and isn't leased to anybody.

    However, there is a softball diamond in the park that is used by the high school girl's softball team. Does this make it school property?

    You are bringing some good questions this AM, CG. The "moving school based GFZ" for the lack of a better term went away years ago. If it's not leased by the school, it's not school property. I'd need to look at current wording to IC 35-47 and how HB 1284 will change that, specific to this situation on 1 July 2019 to provide a good answer.

    Can I get an INGO lawyer to weigh-in??
     

    chipbennett

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    This has come up several times. I think the local legal beagles said that there is no real violation until they enforce it. Several people have reported similar signs across the state.

    Isn't the sign prima facie evidence of effort to enforce a policy that violates preemption? Especially if said sign replaced a prior sign that did not have the "no weapons" wording included?
     

    KellyinAvon

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    Isn't the sign prima facie evidence of effort to enforce a policy that violates preemption? Especially if said sign replaced a prior sign that did not have the "no weapons" wording included?

    Chip is bringing the Latin at 0830 on a Saturday! In south of US-50 speak, "Why are these ******-heads spending my tax dollars on signs with a policy they can't possibly enforce, because if they try it'll cost a lot more of my tax dollars? These ******-heads don't know duck **** from apple butter!"
     

    Frost49

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    Dec 21, 2012
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    "Weapons" is such a subjective word. So no pocket knives, bats, crow bars, tire irons or sticks off the ground? If I were to pick up a rock, am I now guilty of having a weapon? What is a angry mob to do if we can't have pitchforks and torches to carry through the park? I live in New Castle as well and it's a very laid back place when it comes to OC or CC. I see it a few times a week and people aren't screaming about a man with a gun and hiding behind things or calling the police. I have 2 good friends in town on the police department and they usually don't get calls for MWAG. We specialize in drunks and meth heads. If you can't have a bat then they need to swoop in during a high school girls softball game and round them all up with SWAT members, tear gas and flash bangs...
     

    rsklar

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    Hey guys, So I just noticed this sign at our local public safety building. No Court, houses the Police and Fire station as well as ambulance. This is a public entrance to the community room used for Town Council meetings, training, other community activities. I asked the Town Marshal about the legality of the sign and he simply stated that it was legal as long as they do not enforce it. Thoughts? I am more than willing to file for an injunction but if "enforcement" is an element to the legality than it would be a waste of money. I did ask the Marshal if I was violating the law if I had a firearm on me. He said no. but they will not remove the sign.

    Here is the pic. Sorry I cannot get it to load properly.
    IMG_20200116_095556 (1).jpg
     

    eldirector

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    Current case law, as far as I can tell, says that they can "post but not enforce" legally. BS, if you ask me. But, I'm not a lawyer.

    Reserve the community room for an INGO meet-and-greet OC event, and let's see how this goes...
     

    BehindBlueI's

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    Hey guys, So I just noticed this sign at our local public safety building. No Court, houses the Police and Fire station as well as ambulance. This is a public entrance to the community room used for Town Council meetings, training, other community activities. I asked the Town Marshal about the legality of the sign and he simply stated that it was legal as long as they do not enforce it. Thoughts? I am more than willing to file for an injunction but if "enforcement" is an element to the legality than it would be a waste of money. I did ask the Marshal if I was violating the law if I had a firearm on me. He said no. but they will not remove the sign.



    Indiana Code 2019 - Indiana General Assembly, 2020 Session

    [FONT=&amp]IC 35-47-11.1-5Civil actions concerning political subdivision violations
    [/FONT]

    [FONT=&amp] Sec. 5. A person adversely affected by an ordinance, a measure, an enactment, a rule, or a policy adopted or enforced by a political subdivision that violates this chapter may file an action in a court with competent jurisdiction against the political subdivision for:[/FONT]
    [FONT=&amp](1) declarative and injunctive relief; and[/FONT]
    [FONT=&amp](2) actual and consequential damages attributable to the violation.


    [/FONT]
    [FONT=&amp] A person is "adversely affected" for purposes of section 5...[/FONT][FONT=&amp]The individual is or was subject to the ordinance, measure, enactment, rule, or policy of the political subdivision that is the subject of an action filed under section 5 of this chapter.[/FONT]

    But note:




    [FONT=&amp]Sec. 4. This chapter may not be construed to prevent any of the following:
    ...[/FONT]
    [FONT=&amp]The enactment or enforcement of a provision prohibiting or restricting the intentional display of a firearm at a public meeting.


    [/FONT]
     

    BehindBlueI's

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    So it's just a meaningless sign, and not an illegal local ordinance? :dunno:

    But it's true. The govmint sez so.

    Remember this is a civil penalty, not criminal. The question isn't just "is it illegal" the question is "are all the prongs of the law met" and "what's the enforcement mechanism". Having the law doesn't meet all the prongs, at least as the law is currently understood. Adverse action is required. Once both prongs are met (ordinance/rule/etc exists AND you meet the definition of "person adversely affected" per the listed code), an enforcement mechanism becomes available. That is a a civil suit with eligible penalties also listed in the linked IC code. Legal fees x3, recovery of damages, etc.
     
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