Sometimes a legislature enacts a statute that has consequences beyond the direct impact of the statute’s provisions. West Virginia’s statute allowing the carrying of a concealed weapon with a permit may be such an example, based on the February 23, 2016, ruling of the Fourth Circuit Court of Appeals in United States v. Robinson. The court ruled that a West Virginia officer did not have reasonable suspicion to conduct a frisk because there was insufficient evidence of dangerousness, relying in part on a person’s right in West Virginia to carry a concealed weapon with a permit. And this ruling may impact cases in other states, such as North Carolina, that have a statute similar, although not identical, to West Virginia’s. This post discusses this ruling and its potential impact in North Carolina state courts. Continue reading
Tag Archives: concealed carry
Frisking a Person for a Weapon When a State Allows Carrying a Concealed Weapon with a Permit
Changes to the Gun Permit Laws
North Carolina has two kinds of gun permits: pistol purchase permits and concealed carry permits. Both types of permits are issued by sheriffs. The statutes concerning both kinds of permits were amended during the 2015 legislative session by S.L. 2015-195. This post summarizes the most important changes. Continue reading →
Guns at the State Fair
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.
Concealed Carry in Parks and on Playgrounds
Can a concealed carry permit holder carry a concealed handgun in a park? On a playground? The legislature has changed the law in this area twice in recent years and I get lots of questions about it. This post summarizes the basics.
Concealed weapons generally are forbidden. Carrying a concealed weapon of any kind, including a gun, is generally against the law in North Carolina. G.S. 14-269 (making it “unlawful for any person willfully and intentionally to carry concealed about his person” a deadly weapon, including any “pistol or gun”).
Concealed carry with a permit generally is allowed. If a person obtains a concealed handgun permit, the person may carry a concealed handgun “unless otherwise specifically prohibited by law.” G.S. 14-415.11(a). In other words, having a concealed carry permit brings the permit holder outside the scope of the generic concealed weapons prohibition. G.S. 14-269(a1)(2).
When concealed carry with a permit isn’t allowed. Even concealed carry permit holders can’t carry everywhere. Concealed carry is prohibited in certain places, most of which are listed in G.S. 14-415.11(c). So, for example, even permit holders can’t carry on school grounds, G.S. 14-269.2, in courthouses, G.S. 14-269.4, in a “law enforcement or correctional facility,” G.S. 14-415.11(c)(5), or on any private premises where a notice prohibiting concealed handguns has been posted. There are other exceptions, too, and there are exceptions to some of the exceptions, but they don’t concern parks so I won’t get into them in this post.
Where do state parks fit in? Permit holders may carry concealed weapons in state parks under G.S. 14-415.11(c1).
Where do local parks fit in? Most of the questions I’ve had are about local parks. State law does not prohibit concealed carry in local parks, so any limitations on concealed carry in local parks would have to come from local government. Generally, however, local governments don’t have the authority to regulate or restrict concealed carry. G.S. 14-415.23 (stating that “no political subdivisions . . . of the State nor any county [or] city . . . may enact ordinances . . . concerning legally carrying a concealed handgun,” except as provided in that section). The apparent purpose of this preemption statute is to prevent the creation of a patchwork of local regulations that would make moving around the state with a concealed weapon impossibly complex. Most states have similar statutes.
There are exceptions to the preemption statue, and at one time, parks were among them. Before 2011, G.S. 14-415.23 provided that local governments could “adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun . . . on local government buildings, their appurtenant premises, and parks.”
In 2011, though, the General Assembly amended this exception to the preemption statute, essentially replacing “parks” with the narrower phrase “municipal and county recreational facilities that are specifically identified by the unit of local government.” Recreational facilities were defined to “include only the following: a playground, an athletic field, a swimming pool, and an athletic facility.” S.L. 2011-268. I received many questions about the new law, like what constitutes a playground, whether an athletic field included the adjoining bleachers and bathrooms, and whether a greenway was an athletic facility. But before we got definite answers to those questions, the legislature changed the law again.
This year, the General Assembly further amended G.S. 14-415.23, changing the definition of recreational facilities to include only:
- athletic fields, “including any appurtenant facilities such as restrooms,” but only during scheduled, organized athletic events
- swimming pools, “including any appurtenant facilities used for dressing, storage of personal items, or other uses related to the swimming pool”
- “[a] facility used for athletic events, including, but not limited to, a gymnasium”
The law now specifies that greenways and “open areas” aren’t recreational facilities. S.L. 2013-369. Playgrounds have been removed from the definition. I have been asked many times why the General Assembly chose to remove playgrounds. I don’t know, and I’m not aware of any meaningful legislative history that would answer the question. If readers are aware of information on point, please let me know or post a comment.
Current law in a nutshell. As things stand now, local governments generally lack the authority to prohibit concealed carry in parks. They may prohibit concealed carry at the recreational facilities listed in the statute, which include neither playgrounds nor greenways.
Local governments retain the authority, under G.S. 14-415.23, to prohibit concealed carry in “local government buildings and their appurtenant premises.” Therefore, if there are buildings in a park, concealed carry may be prohibited in the buildings and on related premises like adjoining parking lots. It isn’t clear exactly what counts as an “appurtenant” premise with respect to G.S. 14-415.23, but in Blackwelder v. Holyoke Mut. Fire Ins. Co., 10 N.C. App. 576 (1971), the court of appeals discussed the meaning of “appurtenant private structure” as used in a fire insurance policy. Generally, the court stated that “appurtenant” means connected in use to, or incidental to the use of, another location.
In order to prohibit concealed carry at a location where it has the power to do so, a local government must pass an ordinance and post conspicuous signs.
Constitutional right to carry? It might be possible to argue that there is a federal or state constitutional right to carry concealed weapons that is broader than state law currently protects, but that strikes me as an uphill battle. Existing law suggests that concealed carry may be completely prohibited, so North Carolina’s system of allowing permit holders to carry concealed handguns in most places appears to be more permissive than is constitutionally required. See District of Columbia v. Heller, 554 U.S. 570 (2008) (interpreting the Second Amendment by examining founding-era cases and materials and noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues”); N.C. Const., Art. I, Sec. 30 (providing the same general right to bear arms as the Second Amendment but also stating that “[n]othing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice”).
Open carry. I may do a future post on open carry in parks, which raises a different set of issues and on which the law is less clear.
Do law-abiding North Carolina residents have a right to carry a gun openly in public? Generally, yes.
Federal constitutional right? The Supreme Court has recently ruled that the Second Amendment protects an individual right to bear arms, including handguns, District of Columbia v. Heller, 554 U.S. 570 (2008), and that it protects that right from infringement by state and local governments as well as the federal government, McDonald v. Chicago, 561 U.S. 3025 (2010). Heller makes clear that the Second Amendment encompasses the right to have a gun in one’s home, but whether the Amendment also guarantees a right to carry a gun in public, and if so, whether it guarantees a right to carry a gun openly as opposed to concealed, is a matter of debate. As a judge of the Seventh Circuit recently observed, “[t]he Supreme Court has not yet decided whether the post- Heller individual right to keep and bear arms at home under the Second Amendment extends beyond the home.” Moore v. Madigan, __ F.3d __, 2013 WL 656749 (7th Cir. Feb. 22, 2013) (Hamilton, J.). See also James Bishop, Note, Hidden or on the Hip: The Right(s) to Carry after Heller, 97 Cornell L. Rev. 907 (2012) (discussing the widely varying approaches of the states to this issue). I won’t speculate here about how the Supreme Court might, or should, rule when presented with the issue.
State constitutional right. There’s no need for such speculation, because the Supreme Court of North Carolina has already ruled on open carry under the state constitution. State v. Kerner, 181 N.C. 574 (1921). The defendant in Kerner got in a confrontation with another man. The defendant went to his workplace, grabbed his gun, and came back to the fight. He was charged with, among other things, “carrying a pistol off his premises unconcealed,” which violated a local act applicable to Forsyth County and was a misdemeanor. The trial judge dismissed the charge as unconstitutional. The state appealed, and the supreme court affirmed.
In keeping with prevailing federal constitutional doctrine at the time, the court first stated that the Second Amendment didn’t apply because “the first ten amendments to the United States Constitution are restrictions upon the federal authority and not upon the states.” Therefore it focused on the state constitution, which mimicked the Second Amendment, providing in Article I, Section 24 that: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” (The quoted language now appears, after the constitutional overhaul of 1971, in Article I, Section 30 of the North Carolina Constitution.)
The court clearly viewed the provision as protecting the right to carry arms in public, condemning the Forsyth County local act as “especially objectionable” because it limited a person’s right “to carry a pistol off his own premises, even openly, and for a lawful purpose.” Indeed, the court found that the people have a “sacred right . . . to bear arms and [be] ready to use them for the protection of their liberties or their country when occasion serves.” It also specifically ruled that the state constitution protects right to carry pistols, as “[t]he historical use of pistols as ‘arms’ of offense and defense is beyond controversy.”
State laws relevant to open carry. Kerner does not preclude all regulations regarding the carrying of firearms. The court noted several types of regulations that would be consistent with the state constitution, such as:
- Prohibiting the carrying of concealed weapons. (In fact, the state’s authority to do so is expressly mentioned in Article I, Section 30.)
- “[P]rohibit[ing] the carrying of deadly weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror.”
- “[R]equir[ing] that a pistol shall not be under a certain length, which if reasonable will prevent the use of pistols of small size which are not borne as arms but which are easily and ordinarily carried concealed.”
We now have on the books a number of state laws that limit the scope of the right to open carry, such as the ban on guns on school grounds, G.S. 14-269.2, the ban on guns in “any assembly where a fee has been charged for admission . . . or into any establishment in which alcoholic beverages are sold and consumed,” G.S. 14-269.3, the ban on guns in courthouses and certain state buildings, G.S. 14-269.4, and the ban on guns at parades and demonstrations, G.S. 14-277.2. Obviously, those statutes don’t neatly track the regulations that Kerner said were permissible. Therefore, while some of the state’s gun laws have been upheld over constitutional challenges, see, e.g., State v. Sullivan, 202 N.C. App 553 (2010) (upholding ban on guns in courthouses); State v. Fennell, 95 N.C. App. 140 (1989) (upholding ban on sawed-off shotguns), it’s possible that other existing regulations could be challenged on constitutional grounds. Still, they illustrate the general idea that the right to open carry is not unlimited.
One issue that comes up in connection with open carry is the common law offense North Carolina of going armed to the terror of the people. (Jessie Smith discusses the elements of the crime here.) As relevant to open carry, the law prohibits a person from carrying a gun for the purpose of terrorizing others and in a manner that is likely to cause terror. Generally, a person doesn’t commit this offense by carrying a weapon in a non-threatening and orderly manner, such as going about one’s daily business with a handgun in a hip holster.
Local regulations regarding open carry. In addition to state law, local governments also have some authority to limit open carry rights. However, local government authority is limited by the pre-emption statutes that, with some exceptions, make gun regulation a matter of state rather than local concern. (I previously discussed those statutes here.)
An example of a regulation that is within the power of local government is the power to prohibit open carry in “public‑owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas.” G.S. 14-409.40(f). (Concealed carry in some of those areas may be permissible, but that’s a subject for another day.)
However, it appears that local governments do not have the authority to ban open carry completely, even on public property such as streets and sidewalks. One could argue that such authority exists under two statutes, both of which are recognized as exceptions to the statewide pre-emption laws:
- G.S. 160A-189, which allows cities to “by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law‑enforcement officers, and [to] regulate the display of firearms on the streets, sidewalks, alleys, or other public property.”
- G.S. 153A-129, which allows counties to “by ordinance regulate, restrict, or prohibit the discharge of firearms . . . except when used to take birds or animals . . . when used in defense of person or property, or when used pursuant to lawful directions of law‑enforcement officers. A county may also regulate the display of firearms on the public roads, sidewalks, alleys, or other public property.”
But reading the power to “regulate the display of firearms” to allow local governments to ban open carry in public is probably wrong for two reasons. First, it would be unconstitutional under Kerner. As the court noted, “[t]o exclude all pistols, however, is not a regulation, but a prohibition, of arms which come under the designation of ‘arms’ which the people are entitled to bear.” Second, such a reading ignores the fact that both statutes allow local governments to “regulate . . . or prohibit” the discharge of firearms, but only to “regulate” the display of firearms. The lack of parallelism appears to be intentional. Therefore, although the precise extent of local government authority isn’t clear, and a variety of local regulations might be permissible, a complete ban on public open carry does not appear to be.
Gun law webinar. Those interested in the law of gun rights and gun control may wish to participate in an upcoming webinar on the subject. I’m the presenter. The webinar will take place on Wednesday, March 20, from 10:00-11:15 a.m. It’s free, and we’ve applied for CLE credit. Registration is required. Details are here.
Guns in Parks
I’ve had a huge number of calls about one particular aspect of S.L. 2011-268, the omnibus gun rights bill enacted during the recently completed legislative session. The provision in question is Section 21.(b) of the bill, which limits municipalities’ authority to regulate guns in parks. Specifically, Section 21.(b) amends G.S. 14‑415.23 as follows:
14‑415.23. Statewide uniformity.
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, their appurtenant premises, and parks.buildings and their appurtenant premises. A unit of local government may adopt an ordinance to prohibit, by posting, the carrying of a concealed handgun on municipal and county recreational facilities that are specifically identified by the unit of local government. If a unit of local government adopts such an ordinance with regard to recreational facilities, then the concealed handgun permittee may, nevertheless, secure the handgun in a locked vehicle within the trunk, glove box, or other enclosed compartment or area within or on the motor vehicle. For purposes of this section, the term “recreational facilities” includes only the following: a playground, an athletic field, a swimming pool, and an athletic facility.“
So generally, the statute says that municipalities can’t regulate concealed carry – only the state can do that. But the statute provides a limited exception, formerly encompassing municipal “buildings, their appurtenant premises, and parks,” but now limited to municipal “buildings, their appurtenant premises” and certain “recreational facilities.”
Here are some of the recurrent questions I’ve had, usually from municipal officials, and the answers I’ve given. If you have additional questions, or have something to say about the answers, please join the conversation.
Q. My municipality has an ordinance that prohibits concealed handguns on all municipal property. Is it invalid now?
A. Not completely. It is certainly invalid as to parks, greenways, and other property that isn’t a building, appurtenant to one, or a recreational facility. And because it likely doesn’t “specifically identif[y]” any recreational facilities as defined in the current version of G.S. 14-415.23, it is probably ineffective as to those locations. But if the ordinance was otherwise valid under the former version of the statute, it should still be valid under the new statute as to municipal buildings and their appurtenant premises. Certainly the ordinance is overbroad when compared to the authority given in the current version of the statute, but “[t]he overbreadth doctrine has been applied almost exclusively in the areas of first amendment expressive or associational rights.” Treants Enterprises, Inc. v. Onslow County, 94 N.C. App. 453, 458 (1989) (quoting Clark v. City of Los Angeles, 650 F.2d 1033 (9th Cir. 1981)). So a person who brings a concealed gun into a county building can’t rely on the overbreadth of the ordinance, which remains valid as to his conduct.
Q. Most of our parks have buildings in them, if only restrooms. Can we say that the parks are “appurtenant premises” to the buildings?
A. I doubt it. I would expect a court to interpret “appurtenant premises” to mean something similar to the “grounds or parking areas” of a municipal building, G.S. 14-409.40(f), or to the curtilage of the building (even though buildings other than residences technically don’t have curtilages).
Q. Can we still ban the open display of guns in parks?
A. Yes. North Carolina has two preemption or uniformity statutes. G.S. 14-415.23 concerns concealed carry specifically, while G.S. 14-409.40 concerns guns generally. The general preemption statute allows municipalities to “prohibit the possession of firearms in public-owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas.” G.S. 14-409.40(f). See also G.S. 153A-129 (counties may prohibit the display of firearms “on the public roads, sidewalks, alleys, or other public property”); G.S. 160A-189 (same, for cities). The more specific concealed carry preemption statute trumps the general one when it comes to concealed handguns, but the general statute allows municipalities to ban other firearms on public property, including those carried openly. Of course, a gun rights advocate might argue that the Second Amendment protects the right to carry a gun openly but peaceably in a public park. If a court were to agree, that would trump municipalities’ statutory authority. This post isn’t intended to express an opinion on the merits of such a claim.
Q. Can we still ban the discharge of guns in parks?
Yes. G.S. 153A-129 allows a county to “regulate . . . or prohibit” the discharge of firearms at any time except when used for defensive purposes or to hunt birds, and G.S. 160A-189 provides similar authority to cities.
Q. What about other weapons?
A. There’s no preemption provision that applies to knives, nunchucks, brass knuckles, and other weapons, so municipalities presumably may prohibit their possession in parks, or on all municipal property, under their general health and welfare ordinance-making authority. See generally G.S. 160A 174(a) (cities); G.S. 153A-121 (counties).
Q. What are the limits of an “athletic field” and the other locations named in the statute?
A. The new version of the statute uses several terms that are not defined in the law: “athletic field,” “athletic facility,” “swimming pool,” and “playground.” Boundary issues exist for each of the terms. For example, presumably “swimming pool” includes more than just the pool itself – I doubt that many people want to bring their firearms in the water – and extends to the pool deck. But does it include the locker rooms? The snack bar? The grassy area used for tanning? Likewise, I doubt that “athletic field” was intended to include only the playing surface. I presume that it includes the stands and sidelines. But what about the wooded area next to the field where the ball gets lost? “Playground” clearly includes the teeter-totter, but does it include the picnic table fifteen yards away? My recommendation to municipalities interested in exercising their authority under G.S. 14-415.23 is to be as specific as possible when enacting their ordinances. If a municipality believes that the sideline, stands, and snack bar are part of a soccer field, include those areas in the ordinance. A court can always disagree, but at least the municipality will have given as much guidance as possible to officers attempting to enforce the ordinance and to citizens attempting to comply with it.
Q. The statute says that we can ban concealed carry at “municipal and county recreational facilities that are specifically identified by the unit of local government.” Does that mean that our ordinance has to list each and every pool, playground, and soccer field where we want to prohibit concealed handguns?
A. I think so. The most natural reading of the statute, to me, is that the municipality must “specifically identif[y]” the recreational facilities in the ordinance, though I can imagine an argument in favor of having an ordinance that delegates the task of identifying recreational facilities and keeping a list of them to a municipal official such as a parks and rec director. Similarly, to me, the most natural reading of “specifically identif[y]” is to list, by name or by a precise description. I don’t recommend enacting an ordiance that identifies recreation areas by category – e.g., “all swimming pools owned and operated by the City of Raleigh” – because categories are inherently general rather than specific, and such an ordinance may be invalid.
Sorry for the long post, but as I mentioned, this issue has been burning up my phone, so I wanted to get as much information as possible out there. As I noted at the beginning, please weigh in on this if you have a point of view. It’s slightly outside my bailiwick and I want to be as accurate and as helpful as possible.