Concealed Carry in Parks and on Playgrounds

Tag Archives: parks

Concealed Carry in Parks and on Playgrounds

Posted on October 29, 2013 by Jeff Welty

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.

Category: Crimes and Elements, Uncategorized | Tags: concealed carry, firearms, guns, parks, playgrounds, preemption, second amendment

Second Amendment Update

Posted on June 12, 2012 by Jeff Welty

In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court held that the Second Amendment protects an individual’s right to possess firearms for lawful purposes such as self-defense. Heller unleashed a tsunami of litigation over the nature and scope of that right. Of particular interest to criminal lawyers, Heller led to constitutional challenges of many of the subsections of 18 U.S.C. § 922(g), the federal statute that prohibits the possession of firearms by, among others, illegal immigrants, drug users, and convicted felons. I spent some time last night looking at several recent Fourth Circuit cases in this area, and I thought I’d combine them into a Second Amendment update. At the end of this post, I’ll note a couple of relevant state law developments as well.

Here are the recent Fourth Circuit cases:

United States v. Moore, __ F.3d __ (4^th Cir. Jan. 25, 2012) (Agee, J.). The Fourth Circuit rejected a defendant’s facial and as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1), the federal statute prohibiting felons from possessing firearms.
United States v. Carter, __ F.3d __ (4^th Cir. Jan. 23, 2012) (Niemeyer, J.). A long-time marijuana user was prosecuted under 18 U.S.C. § 922(g)(3), the federal statute prohibiting drug users from possessing firearms. He appealed on Second Amendment grounds, and the court ruled: “Although we conclude, applying the intermediate scrutiny standard, that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and might have reasonably served that objective by disarming drug users and addicts, we nonetheless find that the government failed to make the record to substantiate the fit between its objective and the means of serving that objective. Therefore, we vacate the judgment and remand” to allow the parties to litigate the provision’s tailoring before the district court.
United States v. Chapman, __ F.3d __ (4^th Cir. Jan. 4, 2012) (Hamilton, J.). The Fourth Circuit rejected the defendant’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(8), the federal statue prohibiting persons subject to a DVPO from possessing a firearm. The court ruled that even assuming that the defendant retained his Second Amendment rights, the government had shown, through statistical and social science evidence, that section 922(g)(8) serves the important purpose of reducing domestic gun violence, and that the section is tailored to serve that interest. Therefore, the section passes constitutional muster under the intermediate scrutiny standard.
United States v. Staten, __ F.3d __ (4^th Cir. Dec. 5, 2011) (Hamilton, J.). The Fourth Circuit rejected the defendant’s as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(9), the federal statue prohibiting persons previously convicted of misdemeanor domestic violence offenses from possessing a firearm. The court ruled that even assuming that the defendant retained his Second Amendment rights, the government had shown, through legislative history and common sense, that section 922(g)(9) serves the important purpose of reducing domestic gun violence, and that the section is tailored to serve that interest. Therefore, the section passes constitutional muster under the intermediate scrutiny standard.

The take-home message is that most of the federal gun prohibitions have withstood Second Amendment challenges. And, although I don’t follow the other federal circuits very closely, my sense is that the results elsewhere have been pretty much in line with the Fourth Circuit.

There have also been several interesting developments at the state level:

A judge ruled that North Carolina’s statutory limits on gun possession during a declared state of emergency were unconstitutional. In response, the General Assembly amended the relevant statutes, tailoring gun restrictions more narrowly. My colleague Norma Houston has covered this issue in detail on the School of Government’s local government blog; her most recent post is here.
The General Assembly is considering HB 111. Among other things, the bill would (1) allow concealed carry in restaurants, unless prohibited by the establishment, (2) increase the penalty for possession of a firearm by a felon if the defendant discharged the gun or injured someone with it, and (3) clarify the statute adopted last session prohibiting local governments from banning guns in parks but allowing local governments to ban guns in specified recreational facilities. (I discussed that statute here.)

This is a rapidly-evolving area, and there are probably interesting gun-related developments that I’ve missed. If you know of some, please post a comment.

Category: Uncategorized | Tags: firearms, guns, Heller, parks, second amendment

Guns in Parks

Posted on September 26, 2011 by Jeff Welty

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.

Category: Crimes and Elements, Uncategorized | Tags: concealed carry, guns, handguns, municipalities, parks

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