Agriculture Commissioner Steve Troxler has stated that firearms, even those carried pursuant to a concealed carry permit, will be prohibited at the North Carolina State Fair, which opens next week. Grass Roots North Carolina, a gun-rights group, contends that the Commissioner’s policy is unlawful. In the post, I’ll explore the legal issue.
Let me start with a disclaimer. The School of Government is policy neutral. Institutionally, we don’t have a position on what the law should be. We are educators who try to explain what the law is. So nothing in this post should be construed as expressing an opinion about whether the law should or should not permit guns at the State Fair.
With that out of the way, let’s get to the legal analysis.
Concealed carry. The principal concealed carry statute is G.S. 14-415.11. It establishes the general rule that a person with a concealed carry permit “may carry a concealed handgun unless otherwise specifically prohibited by law.” So, under the law, concealed carry is allowed at the State Fair unless there is a law specifically prohibiting it, or allowing the Agriculture Commissioner to prohibit it.
To the best of my knowledge, the Commissioner hasn’t publicly identified any such law. Discussion in the media has focused on two possible candidates:
1. Specified state property. The concealed carry statute says that concealed carry is not allowed in “areas prohibited by G.S. 14-269.4,” which makes it a crime to possess a gun on certain state property. But the statute applies only to “the State Capitol Building, the Executive Mansion, the Western Residence of the Governor,” their grounds, and any courthouse. The fairgrounds aren’t covered, so this provision can’t support the Commissioner’s policy.
2. Assemblies where a fee is charged for admission. The concealed carry statute says that concealed carry is not allowed in “[a]reas prohibited by . . . G.S. 14-269.3,” which generally makes it unlawful to carry a gun “into any assembly where a fee has been charged for admission.” There’s a fee to enter the State Fair, so at first glance, it would appear to be covered. However, in 2013, the General Assembly amended G.S. 14-269.3 to create an exception for permit holders, who now may legally carry in such assemblies. See S.L. 2013-369 (adding new G.S. 14-269.3(b)(5)).
There’s an exception to the exception where the “person in legal possession or control of the premises has posted a conspicuous notice prohibiting the carrying of a concealed handgun on the premises in accordance with G.S. 14-415.11(c).” It seems that the Commissioner is in control of the fairgrounds, so one could argue that this provision gives him the authority to ban concealed carry. However, the reference to G.S. 14-415.11(c) is important. The only part of that subsection that’s relevant is subdivision (c)(8), which allows the prohibition of concealed handguns on “private premises” when posted. The fairgrounds aren’t private premises, so any signs posted at the fairgrounds couldn’t be “in accordance with G.S. 14-415.11(c).” For that reason, I tend to think that the Commissioner doesn’t have the authority to ban concealed carry at the State Fair.
However, the issue isn’t as open-and-shut as I thought at first. A possible rejoinder to the above argument would be to note G.S. 14-415.23(a), the statute that allows local governments to prohibit concealed carry in local government buildings and appurtenant premises. That statute requires local governments to post any “prohibition against carrying a concealed handgun[] in accordance with G.S. 14-415.11(c).” The fact that a statute concerning only public property refers to the posting requirement of G.S. 14-415.11(c) may suggest that references to G.S. 14-415.11(c) don’t necessarily incorporate the “private premises” requirement.
Note that even if G.S. 14-269.3 allows the Commissioner to prohibit concealed carry, it does not require him to do so. As far as I know, the only part of the fairgrounds where concealed carry is prohibited by statute is inside any buildings that contain state offices. G.S. 14-415.11(c)(6)-(7).
Open carry. Open carry is a different question. As I noted in a previous post, federal law regarding open carry is unsettled. Under the state constitution, as interpreted in State v. Kerner, 181 N.C. 574 (1921), open carry is generally permitted. But Kerner states that open carry may be prohibited under a variety of circumstances, including at a “public assembly.” I don’t know whether Grass Roots North Carolina contends that open carry should be permitted at the State Fair, so I don’t know whether any possible litigation will address the issue.
What is the law about the commissioner being liable for any injury or death to someone going to the fair that could have been prevented by their lawful carrying of a weapon. How can we ask the Agri Commissioner to sign a form accepting all liablity for injuries or death of a citizen denied their inalienable rights on his whim.
Mr. Welty this is an excellent post. At first when I read the law I was fully convinced that the property would need to be private in order to prohibit concealed weapons with a conspicuous sign. Identifying the language found in 14-415.23 as you did makes you question what the legislative intent is. At the end of the day though, I think charging someone with carrying a concealed weapon at the state fair based on 14-269.3 is invalid and would be dismissed by a judge.
I would like your thoughts on approaching the ban in a different fashion. State Fair officials could simply ban firearms and those that try to bring them in can be asked to leave. Refusing to leave would subject the firearm possessor to arrest for trespass. The law allows reasonable regulation and exclusion of both public and private property open to the public. I think a reasonable argument can be made that having a weapon free State Fair furthers the interest of public policy of safety. Constitutionally speaking it is no different than statutes prohibiting firearms at public parks or recreational facilities. Just because property is public does not give you the right to use the property however you please. I certainly agree that most concealed carry permit holders are law abiding citizens and their presence in public normally benefits the citizens, but whether you agree with the ban or not, I don’t think you would defeat a trespass charge for refusing to leave after trying to bring a firearm in. Most public venues that are used for entertainment events and social gatherings prohibit weapons. I am a ardent supporter of gun rights, but allowing weapons at the State Fair does not pass the common sense test.
Even if a court ruled that the threat of criminal prosecution of a carry concealed permit holder for concealing a firearm on the premises of the State Fair was irreparable injury and enjoined authorities from enforcing the ban through injunctive relief, I still don’t think it changes the trespass argument.
“State Fair officials could simply ban firearms and those that try to bring them in can be asked to leave” Under what legal authority would they be instituting this ban. The gist of this article is that they likely have no legal authority to ban concealed carry. If that’s the case, then you’re not committing a trespass, since the rule you’re violating isn’t legally valid. The standard for “trespassing” is higher for public spaces. A private property owner only has to say he/she doesn’t want you there, and it’s case closed, you leave. Public space, on the other hand, pretty much requires a violation before you can be trespassed.
“I think a reasonable argument can be made that having a weapon free State Fair furthers the interest of public policy of safety” The fallacy of this argument is the assertion that a sign or prohibition will guarantee a “weapon free State Fair”, when in fact, I can promise you, anyone bent on doing something illegal will only see this as an indicator that he’s not likely to face much armed opposition. Bad guys ignore signs.
More people are killed in gun free zones. This is why the Constitution allows everyone to possess and carry a weapon.Gun free zones are the most dangerous places to be so public safety argument does not work. it’s not rocket science.
So, Brett, you claim you are “an ardent supporter of gun rights” but your language testifies you are less of an ardent supporter and more of a progressive, anti-gunner.
Mr. Welty’s post is an excellent post, however, I believe the argument could be made that the State Fairgrounds are not local government controlled.
Besides, Brett, you need to become more familiar with 14-415.11(c) as it regards local government restrictions on carrying concealed handguns in recreation areas. In fact, local governments across the state are opening their doors to concealed permittees as they examine the changes of 10/1/2013.
I applaud the efforts of GRNC in pointing out the truth of the fairgrounds situation. They are TRUE, ardent supporters of gun rights!
Mr. Welty,
The Commissioner has publicly stated that he’s relying on 14-269.3. You can see the signage in the video of his press conference. The sign very clearly says “All Weapons including concealed handguns are prohibited in accordance with NC Gen. Stat. 14-269.3”
http://youtu.be/dUgj-7LpChc
You hear me at the 7 minute 30 second mark challenging him on the law.
As for 14-415.23, it clearly states ” A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun, in accordance with G.S. 14-415.11(c), on local government buildings and their appurtenant premises.”
In no possible way can the State Department of Agriculture be considered “a unit of local government.” It is a department of the State government.
Brett,
This is a completely nonsense argument. Basically you would have us believe that, in the very likely case that the State has no authority to ban CHP holders from carrying firearms in the State Fair, they could ban them anyway, bar people with guns in the absence of any legal authority to do so, and then arrest people for a trespass that they did not commit. A government official cannot just say “You can’t do this” in the absence of a law prohibiting that conduct. He most certainly cannot cause someone to be arrested for trespass because that person did not follow orders that he was not empowered to give.
Whoops. I forgot to post this part of 14-415.23
§ 14-415.23. Statewide uniformity.
(a) It is the intent of the General Assembly to prescribe a uniform system for the regulation of legally carrying a concealed handgun. To insure uniformity, no political subdivisions, boards, or agencies of the State nor any county, city, municipality, municipal corporation, town, township, village, nor any department or agency thereof, may enact ordinances, rules, or regulations concerning legally carrying a concealed handgun. A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun, in accordance with G.S. 14-415.11(c), on local government buildings and their appurtenant premises.
I think the operative wording here is
“To insure uniformity, no political subdivisions, boards, or agencies of the State”
The Department of Agriculture is clearly an agency of the State. There is no exception in the law for boards or agencies. The exception is for units of local government, which, again, clearly excludes the State Department of Agriculture.
Mr. Cline,
I understand that you are a concealed carry instructor and I respect you. Unfortunately, some people allow their passionate beliefs to confuse their analysis of what the controlling law is. If it makes you feel better to call me progressive anti-gunner then so be it. I fully support your ability to carry a concealed weapon in accordance with the law. Unfortunately you have misinterpreted what Jeff Welty has written. Jeff Welty is not implying that a local government controls the state fairgrounds. Mr. Welty is pointing out legislative intent in regards to their purpose of referencing the posting requirements of NC GS 14-415.11(c). He is suggesting that a legal argument could be made that the reference to 14-415.11(c) in NC GS 14-269.3 does not incorporate the “private premises” due to the fact that a statute referencing public property only refers to the same posting requirement of 14-415.11(c). It would make no sense to reference this statute if the General Assembly intended to restrict to private premises only. It is an interesting argument and very cleverly discovered by Mr. Welty. I agree it is a gray area in the law and I agree that a criminal charge in this situation would likely fail. I do however believe that the State Fair can legally ban weapons and trespass those that refuse to comply.
Also with all due respect, it is responses such as yours that forces Mr. Welty to issue long preface statements about being policy neutral in regards to firearm issues. It is very troublesome when certain subjects continue to think every piece written that does not declare gun regulation illegal is an affront to man’s liberty. I would encourage you to formulate a legal argument instead of an opinion as to how you expect a judge to be able to issue a temporary restraining order that will overcome all of the legal ways that the fair officials can ban weapons to include firearms. The legal standing issues and the inability to demonstrate the likelihood of prevailing would be very troublesome for the plaintiff of such a lawsuit. I am also curious as to whether you think only permit holders should be allowed in with concealed guns or if you believe open carry should be allowed as well. I don’t mean to criticize as you I truly do respect you and your beliefs.
Way to obfuscate, Brett!
First, let’s allow Mr. Welty to defend his position if he wants. I do see his point. I was merely expressing my opinion. The statement is redundant, and apparently out of context.
Second, if you “fully support (my) ability to carry a concealed weapon in accordance with the law.”, why does everything you write here do the opposite? Even the word “ability” seems out of context. I, alone, am responsible for my abilities. If you support the opportunity, or the privilege, since carrying a concealed handgun requires a permit, fine. But, that’s not what you said.
Third, I am NOT a “subject.” I am a free citizen with an opinion, a vote and a voice. I am no one’s subject.
So, I expressed my opinion. I was not attempting to build a legal argument, so you are correct in that. I have not seen anything in connection with the rules for this forum that state that I must agree with anyone, and no one is required to agree with me. It appears that you are expressing your opinions, as well.
So, my further opinion is: The “State Fair” you reference is actually organized by the North Carolina Department of Agriculture and Consumer Services. Therefore, since the management of the State Fair, and the State Fairgrounds are essentially the same, I would disagree with you on the validity of trespassing anyone carrying a concealed handgun. That is my opinion, in all due respect.
If they post, they post, and we will see how it comes out in the courts.
Mr Cline you spotted that too?
Brett’s confusion of Rec facilities then subsequent claim, “I think a reasonable argument can be made that having a weapon free State Fair furthers the interest of public policy of safety. ” solidified his intents. Subtle for the ignorant masses but fallible for cursory observation.The empirical data substantially shows that gun free zones are anything but safe and in most cases they are prime targets for criminal behavior. There is nothing “reasonable” about herding innocents together and then placing their responsibilities to themselves or their charges into the hands of others.
I have dropped the pretense and subject myself to all scrutiny. The sign that notes my home alarm company is in front of the hedge, not tossed behind it. I open carry.
When the wolf looks down upon the sheep it will not choose the sheep wearing a dog. Some sheep fear dogs, some sheep hide their dog. That is their choice. I will not blend in with prey.
And I will not be in attendance where I’m prohibited.
Notice it!?! There were enough red flags in Brett’s posts to be a parade at the Kremlin of old.
I appreciate, and share your thoughts on open carry. I open carry, myself, but prefer to keep the wolves guessing as to where the sheep dogs are.
I stopped parsing Brett’s words out of respect for the time, and brevity. He finds it “very troublesome when certain subjects continue to think every piece written that does not declare gun regulation illegal is an affront to man’s liberty.” Well, that’s exactly what gun regulation is, especially when a government official seeks to impose his will to control the people. He also said: “Unfortunately, some people allow their passionate beliefs to confuse their analysis of what the controlling law is.” Described himself as far as I could tell. An agency of the state is the controlling office, and the controller, Mr. Troxler, is flaunting his will in violation of the state law. Mr. McRory, according to a staffer, is supporting that position, even though he signed the bill into law.
McRory was the lesser of two evils in this fight, but not my favorite choice. He showed that when he balked at the repeal of the PPP, another remnant of the Jim Crowe Era. But, that was his only concern, that we know of.
I also agree with you that I will not be found where my gun is not allowed, unless there is a particular requirement for me to be there. I am not a “sheeple”. I know when to duck, and run for the car where my gun is! However NCGS 14-415.21(a1) states: “A person who has been issued a valid permit who is found to be carrying a concealed handgun in violation of subdivision (c)(8) or subsection (c2) of G.S. 14-415.11 shall be guilty of a Class 1 misdemeanor.” That change was wrought on 10/1/2013.
BTW, Sean, I watched the video and found that Mr. Troxler is very affable and grandfatherly. I find myself liking him and agreeing with his logic. However, he is wrong about 2 things here.
1. It has been the policy for a very long time. However, the law has changed and no longer supports his policy. He claims it is open to interpretation. That’s fine, and he has a right to believe that, and state it if he desires. In fact, and this may surprise Brett, I support his stance and believe it will force the Legislature to further interpret the law for him, and all of the local governments, even more clearly in the next session.
2. The actual date of the change in the law is 12/1/1995. It was reiterated 12/1/2011 and further defined 10/1/2013. And yet, Mr. Troxler is still hanging on to his “it’s been this way for a long time” justification for delaying compliance.
So what exactly do you all eager-to-open-carry at the state fair this month think you might need to do with them amid the dense crowd attending the fair? I mean, aside from wanting to putting on a demonstrative display of your ability to do so according to your beliefs of what you are entitled to do by statute and 2A – setting aside for the moment the matter of the extent to which you are spot-on correct or not about those aspects.
I anticipate from earlier comments above that your answers to this question about the practical value of open-carry boil down to the argument that law-abiding people are made safer if people who otherwise might be inclined to violent or predatory criminal behavior are inhibited by knowing the fair public is full of armed citizens ready to take them on if they attack someone. But what-if a situation arises where you believe an incident of such criminal behavior is happening nearby – how do you plan to actually use your weapon safely amid the dense fair crowd? As a bystander – does that mean I have to rely on the good judgment of every open-carrier within range of the incident to: a) correctly interpret the true nature of the incident, b) the correct identity of the assumed perp, c) correctly deciding that the risks involve justify firing the weapon without excessive risk to collateral innocents? d) even if a-c are satisfied, are competent to accurately fire the weapon in the circumstances? AND e) the immediate urgency of your handling the situation is such to not defer to trained law enforcement people to handle it?
Frankly, who’s a greater risk to public safety here?
Apparently I expressed my point about G.S. 14-415.23 inartfully. I will attempt to clarify.
I don’t think the fairgrounds are local government property, nor that the Agriculture Department is a unit of local government. So I don’t think that the local government provisions of G.S. 14-415.23 have any direct application to the State Fair. But the pro-concealed-carry side of this debate contends that G.S. 14-269.3(b)(5) (no concealed carry at an assembly where a fee is charged for admission and the person in control of the premises has posted against concealed carry) can’t apply to the State Fair because it refers to G.S. 14-415.11(c)[8], which applies only to “private premises.” Yet G.S. 14-415.23 also refers to G.S. 14-415.11(c)[8], and G.S. 14-415.23 clearly authorizes the prohibition of concealed carry on public premises, not private premises — the relevant portion of G.S. 14-415.23 applies only to “local government buildings and their appurtenant premises.” The point I am making is that not every statute that refers to G.S. 14-415.11(c)[8] necessarily incorporates the “private premises” aspect of that subdivision, so perhaps the Commissioner could argue that the reference to G.S. 14-415.11(c)[8] contained in G.S. 14-269.3(b)(5) likewise does not incorporate the “private premises” limitation.
So, although I still think that the pro-concealed-carry argument is stronger, I don’t think it’s a slam dunk. Others are free to disagree, and obviously do. It looks like we’ll have a ruling from a judge soon enough.
On another point, although it is true that access to public property may be made subject to reasonable limits, enforced by the trespass laws, I doubt that individuals in charge of this or that specific piece of state property have the authority to limit access based on gun possession rules not embodied in a statute. Where guns can and can’t be carried is regulated extensively by statute and is the subject of express preemption in G.S. 14-415.23, so I doubt that there’s room for further regulation in the form of limitations on property access.
“I will attempt to clarify.”
Oh, that makes a lot more sense. I couldn’t figure out how you could miss something so obvious. I just misunderstood what you were saying.
I know the topic is clear as it pertains to the state fair, however, there are events held on these same grounds and the concerns at hand never seems to be an issue then. Gun shows take place in one building while other events take place in other buildings, while the flea market continues. There are people who exit the gun show and then mingle through out the flea market with concealed weapons all the while. What is the difference?