HomeMy WebLinkAboutAgenda - 11-16-1993 - VII-B 1
O R A N G E C O U N T Y
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: NOVEMBER 16, 1993
Action Agenda
Item # V'r-$
SUBJECT: REGULATING FIREARMS
DEPARTMENT: COUNTY ATTORNEY PUBLIC HEARING: Yes X No
ATTACHMENT(S) : INFORMATION CONTACT:
Memorandum from Chapel Hill Geoffrey Gledhill
Town Atty. to Mayor and County Attorney - 732-2196
Council of Chapel Hill:
3/26/90 10/25/93
4/13/92 11/4/93 TELEPHONE NUMBERS:
9/7/93 Hillsborough - 732-8181
Chapters 259 and 558 of the Durham - 688-7331
1993 Session Laws Mebane - 227-2031
Durham County Ordinance Chapel Hill - 967-9251/968-4501
1976 Draft Ordinance
PURPOSE: To report on the status of laws and regulations
affecting possession, sale, transfer and discharge of
"guns" within the unincorporated areas of Orange
County and to provide an overview of limitations on
the County's ability to regulate in this area.
BACKGROUND: See report attached.
RECOMMENDATION: Receive the report and respond as the Board decides.
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LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,JR.
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL
129 E.TRYON STREET DOUGLAS HARGRAVE
P.O.DRAWER 1529 KIM K.STEFFAN
HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON.
(919)732-2196
FAX(919)732.7997 November 11, 19 9 3
Moses Carey, Jr. , Chair
Alice Gordon
Stephen Halkiotis
Verla Insko
Don Willhoit
Orange County Board of Commissioners
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: "Guns"
Dear Board Members:
At the request of Commissioner Insko I am writing to report
to you on the status of laws and regulations affecting
possession, sale, transfer and discharge of "guns" within the
unincorporated areas of Orange County. I will also provide you
with an overview of limitations on the County's ability to
regulate in this area.
The Town Council of Chapel Hill is now involved in the
process of considering a firearm regulation ordinance. As you
know, it has conducted a number of public hearings on proposals
presented to it by the Town Attorney and Town Manager. This
interest on the part of the Town of Chapel Hill is a renewed one
rather than a new one. The Town has had for some time
regulations prohibiting the discharge of firearms in the Town
limits and restrictions on the possession and use of firearms
associated with some but not all Town property. The renewed
interest was followed by a memorandum dated March 26, 1990 from
the Chapel Hill Town Attorney to the Town Council followed by a
series of memoranda on various parts of the subject of regulating
firearms within Chapel Hill . With the permission of Ralph
Karpinos, Chapel Hill's attorney, I have enclosed copies of his
memoranda. I 've reviewed each carefully and have looked "behind"
Mr. Karpinos ' research conclusions . By that, I mean I have
reviewed the case law cited by him and otherwise, the statutes
and the constitutional provisions pertaining. I am in almost
complete accord with his conclusions . I will attempt to
reconcile any differences in my view with his view in the
discussion of specifics that follows . In that regard, it is
important to note that Orange County's statutory authority to
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Orange County Board of Commissioners
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November 11, 1993
regulate firearms differs in one material respect from that of
the Town of Chapel Hill. Counties, because they are generally
rural in nature, have been given less latitude in regulating
firearms than cities. Furthermore, because of the North Carolina
Constitution's limitation on "local, private and special
legislation, " there probably is not a local-bill easy fix to this
variance in power between counties and cities . The North
Carolina Constitution prohibits the General Assembly from
enacting local, private or special acts or resolutions ( i)
relating to health and the abatement of nuisances and (ii)
regulating trade. N.C. Constitution, Art. II, Section 24 ( 1) (a)
and ( j ) . Section 24 (3) of Article II makes any prohibited local
act void.
Article I, Section 30 of the North Carolina Constitution is
set out verbatim in the March 26 , 1990 and September 7, 1993
Karpinos memoranda. Both of these memoranda contain an analysis
of the limitation that that section of the North Carolina
Constitution places on the regulation of firearms by state and
local governments.' The analysis provided by Mr. Karpinos
concerning the North Carolina constitutional limitations on town
gun regulations applies with equal force to the regulation of
firearms by the State of North Carolina and its political
subdivisions, including counties . Nevertheless, there is room to
regulate within the authority granted to counties by the North
Carolina Legislature. I will discuss below Orange County's
statutory authority to regulate firearms. Before I do that,
however, I want to summarize the laws and regulations now in
place on the subject.
Local Ordinances .
1 . Orange County presently prohibits the display,
carrying, possessing, use and discharge of all firearms on/in all
"The second amendment to the United States Constitution
provides : "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. " This U.S. constitutional right is
not an impediment to the regulation of firearms by the State of
North Carolina and its local governments . This is so, at least in
part, because the North Carolina Supreme Court has interpreted
Article I, Section 30 of the North Carolina Constitution as
restricting state and local governments in their firearm regulatory
power to a greater degree than the United States Supreme Court has,
interpreting the Second Amendment to the United States
Constitution, restricted federal, state and local governments .
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Orange County Board of Commissioners
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November il, 1993
land and buildings owned, leased or operated by Orange County and
used for parks and related recreational purposes. This
prohibition excepts law enforcement officers and persons engaged
in or on the way to or from a recreation department or other
County-sponsored activity in which firearms are legitimately
used. This prohibition is contained in AN ORDINANCE REGULATING
PARKS AND RECREATION IN ORANGE COUNTY.
2 . Orange County also prohibits commercial use of
residentially zoned property in most cases . Therefore, a person
in the business of selling firearms cannot operate that business
from residentially zoned property unless the sale is clearly an
incidental part of a legitimate and permitted home occupation.
In his March 26, 1990 memorandum, Mr. Karpinos concludes
that the Town of Chapel Hill cannot regulate the sale of guns
under a provision of its Charter written broad enough, arguably,
to permit it to do so. He bases this conclusion on the fact that
the Town Charter is a local act of the North Carolina General
Assembly and the fact that Article II, Section 24 of the North
Carolina Constitution prohibits local acts regarding "trade. "
From this analysis, Mr. Karpinos concludes that the Town lacks
authority to ban the sale of guns . I do not disagree with Mr.
Karpinos ' analysis . However, it is my opinion that the
conclusion he reaches extends beyond the analysis . While a
general ban on the sale of guns may be beyond Orange County's
power,2 a prohibition against the commercial use of residential
property which prohibition is part of the County's comprehensive
zoning regulations and which prohibition also includes the
business of selling guns, is not.
3 . Orange County's ORDINANCE REGULATING HUNTING AND
FISHING ON PRIVATE LANDS OR WATERS WITHOUT WRITTEN PERMISSION OF
OWNER prohibits hunting, including hunting with firearms, on
posted private lands or waters of another without the written
permission of the owner or lessee of the land or water.3
2A total ban on the sale of guns within the unincorporated
areas of Orange County risks a Constitutional confrontation. That
is, in the absence of a legitimate way to obtain "arms" (buying and
selling them) , the right to "bear" them is arguably "infringed. "
3There are comparable state laws in Article 21A of Chapter 113
of the North Carolina General Statutes . This letter does not
attempt to analyze hunting laws and regulations . As will be
discussed later, they impact to a considerable degree the County's
ability to regulate guns.
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Orange County Board of Commissioners
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November 11, 1993
State Laws . The March 1990 Karpinos memorandum contains a
digest of state laws regulating the sale, use, possession,
manufacture and other transfer of firearms . I found it to be
comprehensive. Below is a list of statutes not included in that
memorandum either because they were enacted subsequent to it or,
I presume, because Mr. Karpinos concluded they had no or limited
application to the Town of Chapel Hill.
1. N.C. Gen. Stat. § 14-34 .2 makes an assault with a
firearm or any other deadly weapon upon an officer or employee of
the state or any political subdivision of the state in the
performance of his duties a Class I felony.
2 . N.C. Gen. Stat. S 14-269 . 1 provides for the
confiscation and disposition of a deadly weapon, including a gun,
when the deadly weapon was the one possessed by a person
convicted of violating N.C. Gen. Stat. S 14-269 which prohibits
the carrying of concealed weapons.
3 . N.C. Gen. Stat. § 14-269 .4 prohibits any person from
possessing or carrying, openly or concealed, any deadly weapon,
except those used solely for instructional or officially
sanctioned ceremonial purposes, in any building housing any court
of the General Court of Justice.
4. N.C. Gen. Stat. § 14-269 . 7 makes a minor who possesses
or carries a handgun, with certain exceptions, guilty of a
misdemeanor.
5 . The 1993 General Assembly adopted additional state laws
regulating firearms and certain conduct associated with firearms .
Chapter 259 of the 1993 Session Laws makes it a misdemeanor for
minors, with certain exceptions, to possess handguns, and makes
it a crime for someone to sell or give weapons to minors.
Chapter 558 of the 1993 Session Laws prohibits the possession,
whether openly or concealed, of any firearm and other listed
incendiary devices on "educational property. " Educational
property is defined to include public and private schools,
busses, campuses, grounds, recreational areas, athletic fields or
other property owned, used or operated by the educational
institution. Chapter 558 also makes criminal storing or leaving
a firearm in a "condition that the firearm can be discharged" or
be accessed by an unsupervised minor. Copies of Chapter 259 and
Chapter 558 of the 1993 Session Laws are attached to this letter
for your further information.
Orange County derives its authority to regulate firearms
solely from the North Carolina General Assembly. It is
y not a
municipal corporation as are the towns in this state and has no
"Charter. " In addition to its zoning power, which authorizes it
to regulate the use of buildings, structures and land for trade,
industry, residence, or other purposes (N.C. Gen. Stat. S 153A-
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Orange County Board of Commissioners
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November 11, 1993
340) , pursuant to which the County can regulate the commercial
sale of firearms, the County can regulate firearms pursuant to
the 'following authorization:
1. N.C. Gen. Stat. S 153A-128 provides:
A county may by ordinance regulate, restrict, or
prohibit the sale, possession, storage, use or conveyance of
. any weapon or instrumentality of mass death and
destruction.
2 . N.C. Gen. Stat. S 153A-129 provides:
A county may by ordinance regulate, restrict, or
prohibit the discharge of firearms at any time or place
except when used to take birds or animals pursuant to
Chapter 113, Subchapter Ili', 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. This section
does not limit a county's authority to take action under
Chapter 14, Article 36A.5
3 . N.C. Gen. Stat. § 153A-130 provides:
A county may by ordinance regulate, restrict, or
prohibit the sale, possession, or use of pellet guns or any
other mechanism or device designed or used to project a
missile by compressed air or mechanical action with less
than deadly force.
Much of the analysis contained in the various Karpinos
memoranda in the area of potential for additional firearm
regulation would apply to Orange County. Note that the language
in N.C. Gen. Stat. S 153A-129 which prohibits county regulation
of firearms when used for hunting is a material difference from
the comparable town enabling legislation. It creates a
'Subchapter III of Chapter 113 of the North Carolina General
Statutes has been effectively repealed and replaced by Subchapter
IV. Subchapter IV generally contains the hunting laws of the State
of North Carolina as did Subchapter III before its repeal. The
recodification of these laws and the movement of them from
Subchapter III to Subchapter IV did not contain a correction to
N.C. Gen. Stat. g 153A-129 . It is, nevertheless, my opinion that
the County lacks authority to regulate firearms "when used to take
birds or animals pursuant to Chapter 113, Subchapter IV. "
5Article 36A, Chapter 14 relates to declaring states of
emergency during riots and civil disorders .
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Orange County Board of Commissioners
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November 11, 1993
significant limitation on the County's ability to regulate
firearms when compared to a North Carolina town.
In 1976 our law firm was asked to draft an ordinance which
prohibited the discharge of firearms within the County to the
extent authorized by G.S. S 153A-129 discussed above. A copy of
that ordinance is enclosed. In drafting it we stayed within the
limitations of G.S. S 153A-129 and attempted to avoid the North
Carolina constitutional "right of the people to keep and bear
arms. " The enclosed ordinance was not adopted by the Board of
County Commissioners in 1976 and, when the issue of firearm
regulation was revisited in 1989, principally in the context of
hunting problems, the Board also declined to regulate firearms.
I do not present the enclosed ordinance for your consideration
but rather as an historic document. If the Board of
Commissioners is inclined to want to regulate firearms, I will
want to rethink and perhaps "retool" the ordinance to be more
specific particularly in what it prohibits . Also, the 1976 draft
ordinance does not deal at all with pellet guns, with the display
of guns or with "weapon[s] or instrumentalit[ies] of mass death
and destruction. " This is so because the Board, in the past, had
not focused on these matters.
For your further information, I have enclosed a copy of
Durham County's proposed firearm and air gun regulations. This
ordinance will prohibit the discharge of firearms and air guns in
or near "predominantly residential areas" and create a "negligent
discharge of firearms" violation in the areas that are not
"predominantly residential. "
I hope that the information contained in this letter and in
the enclosures provides you with enough material to aid you in
discussions about firearm regulation and helps you determine
whether there is a need for such regulations and, if so, what
they should be. I 'll be glad to develop a draft ordinance for
your consideration and at your direction.
Very truly yours,
�fre r edhill
GEG/lsg
Enclosures
xc: John M. Link, Jr.
5 8
AGENDA 011
MEMORANDUM
TO: Mayor and Council
FROM: Ralph D. Xarpinos, Town Attorney
SUBJECT: Legal Opinion on Town Authority to Regulate the Sale and
Possession of Firearms Within the Town Limits
DATE: March 26, 1990
On February' 12 , the Council received and referred to this office
a petition from Council Member Herzenberg requesting a report on
what options may be available to the Council to consider
restricting the use of guns, probably by regulating their sale.
This memorandum responds to that request.
I. SUMMARY
After reviewing applicable provisions of the Constitution of the
United States, the Constitution of North Carolina and the North
Carolina General Statutes, it is my opinion that the Town does not
have the authority to prohibit or regulate the sale of guns within
the Town limits. Further, the Constitution of North Carolina would
not allow the North Carolina General Assembly to enact a local bill
authorizing the Town to regulate or prohibit the sale of guns.
With respect to possession of guns, it is my opinion that the
•
constitution of North Carolina would not allow a local ordinance,
or local bill authorizing a local ordinance, which would prohibit
the possession of guns within the Town limits. North Carolina
Constitutional and Statutory Law does authorize local regulation
and prohibition of the discharge of firearms within the Town and
local regulation of the display of firearms on public property
within the Town. Reasonable regulations, in addition to those
already in existence, with respect to the possession of weapons
may be possi- ble.
II. PRESENT STATE AND LOCAL REGULATIONS
•
This section summarizes existing State and Town regulations regard-
ing the sale, use and possession of firearms.
A. Town Ordinances
1. Section 11-6 of the Town Code prohibits discharge of any
gun, rifle, air rifle, SS gun, pistol or firearms of any
description within the Town limits. There are three
exceptions to this prohibition:
4210 9
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a . law enforcement officers acting in discharge of their
duties .
b. residents acting in defense of their own property.
c. use of an air rifle or BB gun for the purpose of shooting
squirrels or other predatory wild animals on the property
of a resident and upon receipt of a written permit from
the Chief of Police.
with respect to the third exception, it should be noted that within
the last few weeks a request for such a permit was made. Upon
consultation with the Attorney General ' s Office it was determined
that while a permit from the Chief of Police was required, that
permit alone was not sufficient without additional approval from
State wildlife officials.
2 . Section 12-3 (i) of the Town Code prohibits the carrying,
possession or use of any firearm or other dangerous weapon within
any park except by law enforcement or other government personnel
acting within the scope of their employment.
3 . Section 6-3 of the Town Code prohibits the discharge in any
cemetery of a firearm, except in connection with military funerals
or Memorial Day services.
4 . Article V of Chapter 11 of the Town Code defines a state
of emergency as a time of great public crisis, disaster, rioting,
catastrophe he or similar public emergency when Town public safety
authorities are unable to maintain public order or afford adequate
protection for lives or property. The Mayor may issue a
proclamation declaring the existence of a state of emergency in the
event of an existing or threatened state of emergency endangering
the lives, safety, health and ,welfare of the people within the Town
or threatening the damage or destruction of property. During a
proclaimed state of emergency, the Mayor may by proclamation impose
restrictions including: the prohibition or regulation of the
possession, off one's own premises, of firearms or dangerous
weapons; and the prohibition of the purchase, sale, transfer, or
other disposition of firearms and dangerous weapons.
is
B. State Statutes
1. Tax Statutes.
North Carolina General Statute (N.C.G.S . ) Section 105-80
establishes a State tax for persons, firms or corporations engaged
in the business of selling or offering for sale firearms . Counties
and cities are authorized to levy a license tax at an amount that
does not exceed the State tax ($50. 00) . Upon payment of this tax
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or taxes and receipt of a license or licenses, sale of firearms
would constitute an activity authorized by State law.
2 . Criminal Statutes Related to Possession of Weapons.
Several North Carolina Criminal Statutes apply to the possession,
and transfer of firearms. They are summarized below.
a. N. C.G.S. Sec. 14-415. 1 prohibits possession, outside his
own hose or place of business, of a firearm by a
convicted felon.
b. N.C.G.S. Sec. 14-269 prohibits the carrying, off one ' s
own premises, of a concealed weapon, including guns.
c. N.C.G.S . Sec. 14-269. 2 prohibits the possession, openly
or concealed, of any weapon in any public or private
school, college or university building or bus or on the
campus, grounds or other property of any such institu-
tion.
d. N.C.G.S. Sec. 14-288.8 prohibits the manufacture,
possession, sale or purchase of any weapon of mass
destruction, including automatic weapons. In addition,
N.C.G.S. Sec. 14-409 prohibits sale, use or possession
of machine guns and other like weapons.
e. N .C.G.S . Sec. 14-269 . 3 prohibits the carrying of any gun
into any assembly where a fee has been charged for
admission thereto or into any establishment in which
alcoholic beverages are sold and consumed.
f. N. C.G.S. Sec. 14-277. 2 prohibits the carrying of any
dangerous weapon by any person participating in or
present as a spectator at any parade, funeral procession,
picket line or demonstration upon any public place or
under the control of the State or any of its political
subdivisions. (This section authorizes a permit to be
issued by a local law enforcement agency head for a
person to carry such a weapon in a parade. )
3. Criminal Statutes Related to Use of Weapons.
Several North Carolina Criminal Statutes apply to the use of
weapons. Generally speaking, the use of a deadly weapon in an
assault makes the assault a more serious criminal offense.
Applicable statutory provisions include:
a. N.C.G.S. Sec. 14-33 , which defines the offense of assault
with a deadly weapon.
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b. N. C.G.S. Sec. 14-32 , which defines the offense of assault
with a deadly weapon with intent to kill .
c. N. C.G.S. Sec. 14-34 . 1, which defines the offense of
discharging a barreled weapon or firearm into occupied
property.
d. N. C. G. S. Sec. 14-32 . 1, which defines as a specific
offense the assault of a handicapped person with a deadly
weapon.
e. N. C.G.S. Sec. 14-34 . 2 and 14-288 . 9, which define as
specific offenses the assault with a weapon on law
enforcement, fire and/or emergency personnel .
f. N. C.G.S. Sec. 14-87, which defines armed robbery as
robbery with the use or threatened use of a firearm or
other dangerous weapon.
g. N.C.G.S. Sec. 14-34, which defines as an assault the
intentional pointing of a gun at another "either in fun
or otherwise, whether such gun or pistol be loaded or not
loaded. "
4 . State Permitting Regulations.
Article 52A of Chapter 14 of the General Statutes requires a permit
to be issued by the sheriff of Orange County before a pistol can
be sold or transferred, purchased or received by any purchaser or
receiver who resides in Orange County. Prior to issuance of such
a permit the sheriff is required to be fully satisfied as to the
good moral character of the applicant. Permits may not be issued
to persons convicted of certain offenses, users of certain drugs
and persons adjudged mentally incompetent.
•
C. Common Law Offense
In addition to the statutory criminal offenses related to weapons
listed above, North Carolina recognizes the common law offense of
"going armed to the terror of the people. " The elements of this
offense are:
a. arming oneself with unusual and dangerous weapons
( including any gun) ;
b. for the purpose of terrifying others;
c. going on the public highways;
•
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d. in a manner to cause terror to others.
Sendor, K.C. Crimea, p. 65, (1985 Inst. of Govt. ) . •
III . AUTHORITY AND LIMITATIONS ON AUTHORITY FOR ADDITIONAL TOWN
REGULATION OF POSSESSION AND SALE OF WEAPONS
Municipalities in North Carolina are created by act of the General
Assembly and have those powers which the General Assembly has given
them through general or local legislation. Legislation authorizing
local ordinances and the ordinances enacted thereunder must be
consistent with the federal and State Constitutions. Local ordi-
nances must be consistent with legislative authorization. The
subject of a possible local ordinance prohibiting the possession
or sale of weapons raises a number of questions regarding these
principles.
A. Legislative Authorization for Local Ordinance Reculatina or
j • • • • • - •
• ' • • • t •
The North Carolina Constitution (Article VII, Sec. 1) authorizes
the General Assembly to provide for local government and give it
such powers and duties as it may deem advisable. The Town of
Chapel Hill 's authority to regulate weapon possession and/or sale
must come from some provision of the General Statutes or local act.
1. Authority from Local Act (Town Charter) .
The Town Charter, Section 5.2, provides:
The council may prohibit or regulate the firing of guns,
pistols, crackers, gun powder, or other explosive, combustible
or dangerous materials in the streets, public grounds or
elsewhere within the town and govern the sale thereof.
2 . General Statute Authority for Town Ordinances.
a. A number of provisions of Chapter 160A of the General
Statutes authorize municipalities to regulate weapons.
i. Spec-ificarly, N.C.G.S. Sec. 160A-189 provides that a
municipality may by ordinance regulate, restrict, or
prohibit the discharge of firearms at any time or place
within its corporate limits except when used in defense
of person or property or pursuant to lawful directions
of law enforcement officers. Further, this section
authorizes a municipality to regulate the display of
firearms on the streets, sidewalks, and alleys, or other
public property.
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ii. In addition, M. C.G.S. Sec. 160A-190
a city may by ordinance regulate, A 190 provides that
the sale, possession or use vithineatrict, or prohibit
the city of pellet
guns or any other mechanism or device designed or used
to project a missile by compressed air or mechanical
action with less than deadly force.
iii. A third provision of the General Statutes, G. S . Sec.
160A-183 , further authorizes a city by ordinance to
restrict, regulate or prohibit the sale, possession,
storage, use or conveyance of any weapons or
instrumentalities of mass death and destruction within
the city.
b. Section 14-288 . 12 of the General Statutes authorizes the
Town to enact ordinances designed to
imposition of prohibitions and restrictionse during the
a
state of emergency, including such limitations upon transportation and use of dangerous w�n the
This section allows the ordinance to delegate Pot
mayor the authority to proclaim the existence a state
of emergency and to impose the authorized regulations and
prohibitions.
The Town Code provisions referenced above are authorized by either
the Town Charter provision or the General Statutes or both.
B. Limitations on Authority
In addition to being authorized by local or general law, a munici-
pality's ordinances must be consistent with the Constitutions of
North Carolina and the United States.
1. Constitution of the United States.
The Second Amendment to the V.S . Constitution provides:
A well regulated
equlated 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 amendment "is a bar only to federal action, not extending to
state or private restraints. " Constitution of the United States
of America. Revised and Annotated (1982) , p.
v . Village of Morton Grove, 695 F. 2d 261 (C.A.47 7th Cir. 41982) , ;!
cert. den. , 464 U.S. 863 (1983) . In
Court of Appeals i the United States
ppeals for the Seventh Circuit upheld, as not being
prohibited by the Second Amendment, a local ordinance banning the
possession of handguns within the borders of the Village of Morton
Grove, Illinois. (The United States Supreme Court declined to
review the decision of the Seventh Circuit. ) However, while the
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Second Amendment does not prohibit a local ordinance banning the
possession of handguns by individuals, it in itself is not
sufficient to authorize a North Carolina municipality to enact such
a regulation.
2 . North Carolina Constitution.
Two srparate provisions of the Constitution of North Carolina
directly impact the issue of Town adoption of an ordinance regulat-
ing or prohibiting the possession or sale of weapons, Article I,
Section 30 and Article II, Section 24 .
a. Article I, Sec. 30 of the North Carolina Constitution
provides:
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; and, as standing armies in time of
peace are dangerous to liberty, they shall not be maintained,
and the military shall be kept under strict subordination to,
and governed by, the civil power. Nothing herein shall
justify the practice of carrying concealed weapons, or prevent
the General Assembly from enacting penal statutes against that
practice.
Although the Second Amendment to the U.S. Constitution does not
prohibit a local ordinance, this provision of the North Carolina
Constitution, as interpreted by the Supreme Court of North
Carolina, would not allow the Town to adopt a prohibition on the
possession of weapons. State v. Dawson, 272 N.C. 535, 159 S. E. 2d
1 (1968) :
North Carolina decisions have interpreted our Constititution
as guaranteeing the right to bear arms to the people in a
collective sense-similar to the concept of a militia-and also
to individuals. 159 S.L. 2d at 9.
See also State v. Fennell, 95 N.C. App. 140, 382 S.E. 2d 231
(N.C.App. 1989) , citing Dawson as authority for the principle that
"the North Carolina Constitution has been interpreted to guarantee
a broader right to keep and bear arms" (than the Second Amendment
to the U.S. Constitution) .
Under this provision oethe State Constitution, in my opinion the
present legislation can not be considered as giving the Town the
authority to ban the possession of weapons. Nor, under this
provision, could the Legislature authorize the Town to adopt an
ordinance prohibiting the possession of guns within the Town
limits.
The Court in Dawson made. it clear that the State Constitutional
right to bear arms "is not absolute, but is subject to regulation. "
6L:5) 15
S
159 S.E. 2d at 9 . fiord, trats v, Fennell
State or local regulation therefore may be possible.l e. Additional
to discussing the Second Amendment to (Zn addition
Constitution, the Seventh Circuit construed the e United States
Illinois Constitution regarding the right to bear arms. The Court
said this State Constitutional provision did not
Morton Grove Ordinance based on the Court 's Pnghibit the
read
provision, the Illinois Constitution in ing of that
proceedings of the adoption of the Illinois= Constitution d and
Illinois Court decisions. In contrast, our Supreme Court in pAmn
has spoken as to the meaning of the applicable provision
State Constitution and has recognized Article I, Sectto of our
prohibition of a total ban on weapon ion ]0 as a
pon possession. )
b. Article II, Sec. 24 of the North Carolina Constitution
Article II, Sec. 24 of the North Carolina Constitution restricts
the authority of the General Assembly to enact local legislation,
that is, legislation which would, for example, authorize only a
single municipality to adopt a regulatory ordinance. Specifically,
under Article II, Sec. 24 (1) (j) the General Assembl l
"shall nt
pass any local, private or special act . . . regulating trade . .
" Trade refers to a business venture embarked in for profit.
smith V. County of Mecklenburg, 280 N.C. 497, 187 S.E. 2d 67
(1972) . The verb "to regulate" has been defined as meaning "to
govern or direct according to rule . . . to bring under control of
law. . . Cheaoe v. Town of Chapel Hill, 320 N.C. 549, 359 S.E.
2d 792 (1987) .
Under this provision of the State Constitution, local acts
providing: for the licensing and regulation of real estate brokers ;
for the operation of pari-mutuel dog racing for private ;
regulating motor vehicle races for profit on Sundays; authorizing
the prohibition or regulation of pool rooms and dance halls; and
authorizing a local election to determine if mixed drinks can be
sold have all been struck down as void. See Smith v.
Meckle el +-a, County of
supra. In my opinion, a local bill authorizing the
Town of Chapel Hill to prohibit the sale of handguns would likewise
be found void under this Constitutional provision.
To the extent that Sec. 5.2 of the Town
Charter (referenced above)
purports to authorize the Council to govern the sale of guns, if
the Council attempted to regulate the sale of guns under this
authority its ordinance would likely be found void under this
Constitutional provision.
3 . Doctrine of Preemption
A third limitation of local authority is the "doctrine of preemp-
tion. " Where applicable statutes "clearly show a legislative
intent to provide a complete and integrated regulatory scheme"
additional local regulation is invalid and unenforceable. Greene
m
16
9
City of Winston-Salem, 217 N.C. 66, 213 8 . !. 2d 231 (1975) . As
described above, a number of State statutes regulate the possession
and sale of weapons. In my opinion, the
enacted such a complete and integrated Legislature has not
exclude local r egrated regulatory scheme as to
etclud specifically particularly since the Legislature has
pecifically authorized municipalities to adopt ordinances
regulating this issue.
IV. CONCLUSIONS
A. The Town does not have the authority to ban the sale of
handguns or weapons in general by adoption of an
ordinance. A local act authorizing such a ban would
likely be considered a local act regulating trade and
void under the North Carolina Constitution.
8. The Town does not have the authority, other than during
a state of emergency, to ban the possession of handguns
or weapons in general by adoption of an ordinance. A
local act authorizing such a ban would likely be
considered a violation of the State Constitutional right
of individuals to bear arms.
C. Modification of existing local regulation of the posses-
sion and use of handguns or weapons in general, within
the constitutional limitations and statutory authority
cited above, is possible. Local regulation of handguns
is specifically authorized by General Statute and the
Town Charter and is not preempted by a complete and
integrated State regulatory scheme. Any regulation must
be "reasonable and not prohibitive, and must bear a fair
relation to the preservation of the public peace and
safety. " State v. Dawson, State v. Fennell , supra.
Recommendation: That the Council consider whether additional local
regulation of weapons is appropriate and how such regulations might
be drafted for the Council 's consideration. Attached is information
related to this subject received in this office.
•
•
6s 17
Side V. Fennell: The North Carolina Tradition of Reasonable
Regulation of the Right to Bear Arms
The right of individual citizens to keep and bear arms has created increas-
.ng!; tense debate in both political and academic arenas during the put twenty•
;%e years ' A focal point of "The Great American Gun W'ar' 2 has been the
constirunonality of banning or restricting various wapons.3 Despite the impor-
'ance of possible constitutional limitations on a state's authority to restrict a
citizen's right to bear arms, the judiciary, especially the federal judiciary, re-
mains reticent on this hotly contested social issue.' Since 1%8 the North Caro-
. 'i:a Supreme Court has not addressed directly the constitutional limits the State
may impose on the right to keep and bear arms.s In State v. Fennell,' however,
the North Carolina Court of Appeals recently upheld a statute making posses-
sion of a sawed-off shotgun illegal.
This Note considers the constitutional right to keep and bear arms in North
Carolina- The Note first briefly discusses United States Supreme Court cases
holding that no individual right to bear arms exists under the United States
Constitution. Next, it examines.North Carolina cases holding that an individual
right to keep arms does exist under the North Carolina Constitution. The Note
also analyzes other states' treatments of the right to bear arms under their vari-
ous constitutional provisions. Finally, the Note contends that North Carolina
courts have concluded properly•that the North Carolina Constitution provides
for an individual right to bear arms.
On March 3, 1988, three Goldsboro police officers responded to a report of
a man carrying a saved-off shotgun at a community recreation center.' The
officers spotted Jeffrey Fennell, who matched the description given in the re-
1. Eg., S. HAL3IOOC. THAT EVERY MAN BE ARMED IX-X (1984); E KRI:SCHKE, rHt
RICNT To Kam,AMO BEA.ARMS 3.4(1915); Note. The Individual Right to Bear.4rmt. An II(t..ton,
Pithier Pacifier?, 1916 UTAIt L. REV 751. 755.
See Bruce-Brigp. Tee Ghat American Gun War, 1976 Ptra. !NTEaEST 37
3 See generolty Feller t Getting, The Second Amendment A Second took. 61 Nw U.L.
REV 46 (1966) (contending that second amendment does not grant an individual right to bar
arms,. Jaekaon, Handgun Control. Consttnrtrasal and Critically Needed, I N.C. Carr. L.J. 119
(1977)(mayor of Atlanta stressing urban problems with firearms); Kate. Handgun Pohibmoe and
the Original Meaning of At Second Amendment, 12 MIcH. L. REV. 204, 206-11 (19131(surveying
the 'lip-eop"of liberate and conservatives on the issue of Individual liberty regarding the right to
oat arms): Malcolm, At Right of the People to Keep and Sear Arms The Common Law Teedtteon.
10 HASrtieas Copier. LQ 215(1913)(ugurng that the framers intended the second amendment to
convey an individual nest).
4. The United Stun Supreme Court has addressed the second amendment only tour DIMS.
most recently in 1939. See infra notes 24-29 and accompanying text. The Court's silence ct ntraus
(harpt> with its more►-ve role in other disputed social issues such u abortion.e.g, litre v. Wade.
410 U.S :13 0973),school integratsont.ag., Brown r Bourn of Education,347 U.S.taJ t 1444 and
the rights of crtmini t ddetda ts.e.g.. Miranda v. Arizona. 384 U.S. 436(1966) Mapp v.Ohre. 367
U.S. 643 (1961). The Supreme Court's refusal to reconsider its stand on the second unendment In
. fight of the Incorporation of other parts of the Bill of Rights UDC! 1939 remains puzzling.
5 State v. Dees sca, 272 N.0 535. 159 S.E.2d I (1968).
6. 95 N.C. App. 140. 312 S.E2d 231 (1919).
7. Id. at 141, 382 S.E2d at 212.
Volume 68 North Carolina law Review ( 1990)
18
AGENDA $11
MEMORANDUM
TO: Mayor and Council
FROM: W. Calvin Horton, Town Manager
Ralph D. Karpinos, Town Attorney
SUBJECT: Firearm Regulations
DATE: April 13 , 1992
The attached Ordinance would amend the Town Code to add
prohibitions on the possession, display or use of firearms and
other dangerous weapons on all Town-owned property, at street fairs
and in Town buses, taxis and other means of public conveyance.
Background,
On March 11, the Council referred to the Town Attorney a Council
petition regarding the possibilities for regulation of the use and
display of weapons by Town Ordinance. This memorandum responds to
that request.
In February, 1990, the Council requested a report on what options
might be available to the Council regarding the regulation of the
use or sale of firearms. A copy of the report prepared in response
to that request is attached. The third conclusion of that report
states:
"Modification of existing local regulation of the
possession and use of handguns or weapons in
general , within the constitutional limitations and
statutory authority cited above, is possible.
Local regulation of handguns is specifically
authorized by General Statute and the Town Charter
and is not preempted by a complete and integrated
State regulatory scheme. Any regulation must be
reasonable and not prohibitive, and must bear a
fair relation to the preservation of the public
peace and safety. "
In August, 1991, following action by the General Assembly to
increase the authorized monetary penalties for violation of local
ordinances, the Council directed the Manager and Attorney to
prepare a recommendation on possible changes in the Town Code.
That report is on the Town Council ' s agenda for this evening and
includes recommendations for two Code changes related to penalties
for use of weapons:
19
2
1 . An increase to $500 in the monetary penalty for violation
of the present ordinance prohibition on discharge of a
firearm within the Town Limits. (Sec. 13 of the proposed
ordinance in the other agenda item. )
2 . An increase to $500 in the monetary penalty for violation
of the present ordinance prohibition on the possession of
a firearm in a Town park. (Sec. 17 of the proposed
ordinance in the other agenda item. )
In October, 1991, the Task Force on Reducing Violent Crime and
Illegal Drug Use issued its report to the community. That report
included two recommendations related to increased regulation of the
use of weapons. The Task Force recommended that the Town Council :
"35. Urge our Legislative Delegation to work for
stricter penalties for those convicted of crimes in which
a weapon is used.
36. Urge our Legislative Delegation to work for
legislation that would allow localities to regulate
handguns more strictly. "
Discussion
We have reviewed the present state and local regulations with
respect to use and display of firearms. We have identified three
areas where we believe additional regulation by the Town would be
reasonable, consistent with the recommendations of the Task Force
on Reducing Violent Crime and Illegal Drug Use and consistent with
the Town ' s statutory and constitutional authority.
1 . Prohibition of weapons on Town Property.
Presently the Town Code prohibits weapons in Town parks, but
not in other Town facilities. Presently the Town Code
prohibits the discharge of weapons within the Town limits but
not on Town property outside the Town limits. State law
prohibits carrying of weapons on the grounds of any school ,
public or private. We believe a similar prohibition of
weapons on all Town-owned property would be reasonable ;
however, we believe that on property used for residential
purposes, residents should not be prohibited from possessing
firearms. •
2 . Prohibition of weapons at street fairs and similar events.
Presently state law prohibits the carrying of any dangerous I'
weapon by any person participating in or watching any parade
or demonstration. Carrying of an unconcealed weapon on the
public streets and sidewalks is otherwise permitted by the
State Constitution, as discussed in the Town Attorney' s 1990
4 2p
report. However, where a public street has been temporarily
closed for a street fair it is not clear that the state
prohibition on weapons at parades would apply. Because under
such circumstances a street functions much like a place of
assembly or a park, we believe a prohibition on the carrying
of weapons at such a function would be reasonable.
3 . Prohibition of weapons on Town buses and other means of public
conveyance.
We believe a prohibition on the carrying of any firearm or
other dangerous weapon on any Town bus or in any taxicab or
other means of public conveyance would be reasonable.
* * * *
As a result of the increase, approved by the General Assembly, in
the authorized monetary penalty for violation of any local
ordinance (discussed in the separate agenda item on tonight ' s
agenda) , the Council may set the penalty for violation of any new
ordinance prohibition at $500 . The proposed ordinance sets the
maximum penalty for each new section at this amount.
Recommendation: That the Council adopt the attached ordinance
establishing additional restrictions on the carrying of weapons on
Town property, on means of public conveyance and at special events
on temporarily closed public streets and rights of way.
•
•
21
411,
AN ORDINANCE TO PROHIBIT THE POSSESSION OF WEAPONS ON TOWN
PROPERTY, AT STREET FAIRS AND IN TOWN BUSES , TAXIS AND OTHER MEANS
OF PUBLIC CONVEYANCE (92-4-13/0-3)
WHEREAS , North Carolina law authorizes local government to regulate
the use and display of firearms, within constitutional limitations ;
and,
WHEREAS, the Council of the Town of Chapel Hill believes that
additional regulation on the use and display of firearms on Town
Property and under other certain circumstances would promote the
public health, safety and general welfare;
NOW, THEREFORE, BE IT ORDAINED by the Council of the Town of Chapel
Hill as follows:
Section 1 . Chapter 11, Article I of the Town Code is hereby
amended by adding a new Section 11-15 and a new Section 11-16
to read as follows:
"Sec. 11-15 . Prohibition on possession of weapons on
Town property.
No person shall carry, possess or use any firearm or
other dangerous weapon within any Town-owned facility or
on any Town-owned property or on any property leased by
the Town for Town purposes. This section shall not apply
to law enforcement or other government personnel acting
within the scope of their employment or to the possession
of a firearm or other weapon on residential property,
leased by the Town, by the resident of said property,
provided said possession is within the resident own
dwelling unit.
Violation of this section shall be a misdemeanor and
shall be subject "to a fine of $500. or imprisonment for
not more than 30 days.
Sec. 11-16. Prohibition on ' possession of weapons on
public streets temporarily closed to regular traffic for
street fairs and other special events.
No person shall carry, possess or use any firearm or
other dangerous weapon within any public right of way or
street while such right of way or street is temporarily
closed for a street fair, concert, art display, bicycle
race or other special p 1 event. This section shall not
apply to law enforcement or other government personnel
acting within the scope of their employment. This
section shall not apply to any person who obtains a
permit to carry a weapon at such an event from the Chapel
22
5
Hill Police Department where the carrying of such weapon
is part of the display, program or event for which the
street or right of way is temporarily closed.
Violation of this section shall be a misdemeanor and
shall be subject to a fine of $500 . or. imprisonment for
not more than 30 days. "
Section 2 . Chapter 11, Article VII of the Town Code is hereby
amended by adding a new Section 11-84 to read as follows:
"Sec. 11-84 . Prohibition on possession of weapons on
Town buses.
No person shall carry, possess or use any firearm or
other dangerous weapon while aboard a bus operated by the
town. This section shall not apply to law enforcement or
other government personnel acting within the scope of
their employment.
Violation of this section shall be a misdemeanor and
shall be subject to a fine of $500. or imprisonment for
not more than 30 days. "
Section 3 .. Chapter 20, Article I of the Town Code is hereby
amended by adding a new Section 20-5 to read as follows:
"Sec. 20-5 . Prohibition on possession of weapons in
taxis and limousines.
No person shall carry, possess or use any firearm or
other dangerous weapon while aboard any taxi or limousine
or other means of public conveyance. This section shall
not apply to law enforcement or other government
personnel acting within the scope of their employment.
Violation of this section shall be a misdemeanor and
shall be subject to a fine of $500. or imprisonment for
not more than 30 days . "
Section 4 . This Ordinance shall become effective upon
adoption.
This the 13th day of April , 1992 .
23
AGENDA p.-
MEMORANDUM
TO: Mayor and Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Potential Town Initiatives Regarding firearm Regulations
DATE: September 7, 1993
This memorandum responds to the Council's request, on August 23,
for a report on potential Town initiatives with respect to
regulation of firearms.
Summary
Key points of this memorandum can be summarized as follows:
1 . The Town does not have the statutory or constitutional
authority to enact a ban on all firearms or all handguns within :the
Town limits.
2 . The Council may wish to consider additional local
regulation of firearms, including:
a) a prohibition on the possession of firearms at specific
places, including polling places, places of public assembly
and sidewalks in the downtown areas.
b) a prohibition on the possession of firearms by persons who
are consuming or under the influence of drugs or alcohol.
c) a prohibition on the possession on the streets, sidewalks,
and alleys of handguns less than a specified size, that size
to be established in order to prevent the possession of
handguns which are "easily and ordinarily carried concealed."
3 . Each of these additional possible reg-ulationz -.;tarries sow
risk
of being challenged either on constitutional or statutory
grounds; however, a reasonable legal argument can be made in
defense of each should the Council wish to consider them further.
4 . The Council may wish to consider pursuing additional
authority for local government to regulate firearms, changes in
state statutes regulating firearms, or an amendment to the North
Carolina Constitution to allow greater restriction on the
possession of firearms.
24
2
Dackgroun4
The Council has considered the subject of firearm regulations on
two occasions in recent years. In March, 1990, the Council
received a memorandum from the Town Attorney on the Town's
authority to regulate the sale and possession of firearms within
the Town limits. That sesorandus:
* identified existing State law and Town ordinances
regulating firearms;
* discussed the right to bear arms in the North Carolina
Constitution;
* stated that "the Constitution of North Carolina would
not allow a local ordinance or local bill authorizing a
local ordinance, which would prohibit the possession of
guns within the Town limits. . . . Reasonable
regulations, in addition to those already in existence,
with respect to the possession of weapons say be
possible."
In April, 1992 , the Council received a report from the Town Manager
and the Town Attorney recommending the enactment of additional Town
regulations regarding the possession of firearms, including:
* a prohibition of weapons on all Town property;
* a prohibition of weapons at street fairs and similar
events;
* a prohibition of weapons on Town buses and other means
of public conveyance.
The Council adopted the recommended ordinances. Copies of those
memoranda and the adopted ordinances are attached.
Also attached for your consideration is a section of the "Survey of
Developments in North Carolina Law, 1989" published by the Aorta
Carolina Lair aeaie', in September , 1990, discussing the most recent
North Carolina appellate court decision on the right to bear arms,
State v. Fennell, 382 S.E. 2d 231 (1989) .
On August 23, the Council asked for a report, in conjunction with
tonight's public hearing, on the Town's possible authority to
initiate efforts to restrict possession of firearms, especially
handguns.
As part of that report, the Council also requested information on
initiatives taken by other municipalities. That information is
contained in a separate memorandum which follows this report.
3
25
Discussion
For purposes of discussion, this report divides potential Town
initiatives into three categories:
1. Enactment of additional local regulations.
•
2 . Pursuit of additional local or statewide authority.
•
3 . Use of existing laws and imposition of more severe
sentences.
This report is intended only to identify and discuss some possible
initiatives. It is not a recommendation as to the merits of the
Council' s considering any of these for possible action nor does it
present fully the legal rationale to defend any such initiative and
the potential legal challenges that might be raised to any action
the Council considers taking. I would anticipate that tonight's
public hearing will provide an opportunity both for the
presentation of other ideas and comment on the merits of these
possible initiatives and other proposals.
I. POTENTIAL FOR ADDITIONAL LOCAL ORDINANCES.
A. Legal Constraints
There are two primary legal limitations on the Town's authority to
enact ordinances further regulating firearms, the North Carolina
General Statutes and the North Carolina Constitution. These are
discussed in the attached March, 1990, memorandum.
1. North Carolina General Statutes.
The North Carolina General Statutes limit the Town's authority as
to: (a) the substance of regulations; and, (b) the severity of
punishment that may be imposed.
a) N.C.G.$. Sec. 160A-189 provides that a municipality
uai:
regulate, restrict, or prohibit the discharge of
firearms at any time or place within the city
except when used in defense of persons or property
or pursuant to lawful directions of law-enforcement
officers, and may regulate the display of firearms
on the streets, sidewalks, alleys, or other public
property. Nothing in this section shall be
construed to limit a city's authority to take
26
4
action under Article 36A of Chapter 14 of the
General Statutes. '
Under G. S. 160A-1t9, the Legislature has specifically authorized
the Town to prohibit the discharge of firearms. However, the
Legislature has only authorized the Town specifically to regulate
their display, not to prohibit that display by prohibiting their
possession. While there may be an argument that the general police
power could be so construed (see G.S. 160A-174 (a) and -177) , there
may be a countervailing argument that a municipality cannot
prohibit something otherwise authorized by law and the State
Constitution (G.S. 160A-174 (b) ) .
b) N.C.G.S. Sec. 14-4 provides, in part:
(I) f any person shall violate an ordinance of a
county, city, town, . . . he shall be guilty of a
misdemeanor. . . .
In addition to only being a misdemeanor, the maximum potential
penalty that can be established for violation of any loyal
ordinance is $500 or 30 days imprisonment.
2. North Carolina Constitution
Article I, Sec. 30 of the North Carolina Constitution provides:
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; and,
as standing armies in time of peace are dangerous
to liberty, they shall not be maintained, and the
military shall be kept under strict subordination
to, and governed by, the civil power. Nothing
herein shall justify the practice of carrying
concealed weapons, or prevent the General Assembly
• from enacting penal statutes against that practice.
North Carolina court decisions have interpreted this provision as
guaranteeing a broader right to individuals to keep and bear arms
than that guaranteed by the U.S. Constitution.) However, that
Article 36A, Chapter 14 relates to declaring states of
emergency during riots and civil disorders.
2 Thus, as explained in the March, 1990 memorandum, a
determination by the Courts holding that a local ordinance in
another state banning all handguns does not violate the Second
Amendment to the United States Constitution or that state's
constitution does not mean that such an ordinance is consistent
with the North Carolina Constitution.
5 27
right in North Carolina is subject to regulations which are
reasonable and not prohibitive. ,State v. Dawson, 272 N.C. 535
( 1968) . While the North Carolina Courts have said the state can
regulate more than just the time, place and manner in which a
firearm is borne, the State Supreme Court has stated that to
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." ,Mats v. Kerner, 181 NC.
574 (1921) .
D. potential for Additional Sown Regulations
1. Introduction
As quoted above, G.S. 160A-189 specifically authorizes the Town to
regulate the display of firearms on the streets, sidewalk, alleys,
or other public property. In discussing the State Constitutional .
right to bear arms, the North Carolina .Supreme Court, in 1921,
stated:
The right to bear arms . . . is subject to the
authority of the General Assembly, in the exercise
of the police power, to regulate; but the
regulation must be reasonable and not prohibitive,
and must bear a fair relation to preservation of
public peace and safety. Mate v. Kerner.
Given this language from the statute and interpretation from the
North Carolina Supreme Court of the North Carolina Constitution,
there would appear to be an opportunity to consider additional
local regulation of firearms. The risk of there being a statutory
or constitutional challenge to such additional regulations would
depend on how far any such regulations go.
For purposes of discussion, potential additional regulations have
been divided into three categories:
* regulations. regarding where firearms can be displayed;
* regulations regarding who may possess firearms; and,
* regulations based on the size of the firearms.
These three categories and the specific potential regulations
considered below are provided to facilitate public comment and the
Council's discussion of this issue and are not intended to be
comprehensive. In addition, there has been no attempt to draft any
ordinances but merely to identify the areas'of possible regulation
and associated legal issues (primarily questions of challenges
based on statutory authority and consistency with the North.
Carolina Constitution) so that the Council can consider public
28
6
comment and indicate whether it wishes to further consider any
specific type of regulation.
2 . Regulations Reaardina there firearms Can de
Displayed
The Court in Xerner said it would be "a reasonable regulation and
not an infringement of the right to bear arms to prohibit the
carrying of deadly weapons . . . to a church, polling place or
public assembly. . . ." In light of this language, the Council may
wish to consider prohibiting the carrying of firearms:
a) into all polling places, and at public assemblies.
Comment: While many polling places and places of public
assembly are already covered by the state statutory
prohibition on weapons in schools, or the Town ordinance
prohibition on weapons on Town property, or other state law,
there are some polling places and places of assembly where it
is not now unlawful to carry a firearm. A prohibition on
weapons at these locations would be clearly consistent the
North Carolina Constitution as discussed by our Supreme Court,
and, like the Town's current ordinance against weapons at
street fairs, arguably authorized by the statutory authority
to regulate the display of weapons on public property. It
runs some risk of being ruled beyond the Town's authority
under G.S. 160A-189, however.
b) on the sidewalks along Franklin Street or in the
downtown area in general.
Comment: I do not wish at this point to attempt to present
the entire rationale for this or any other regulation the
Council might consider. However, the argument in part would
be that the sidewalks in the downtown area of Chapel Hill,
given the nature of our community, including the heavy
pedestrian use of the sidewalks for gathering and
conversation, make the sidewalks in effect places of public
assembly, where the Court in Termer has said firearms may be
prohibited consistent with the State Constitution. Given the
extensive nature of such a regulation, it would potentially be
subject to challenge on both constitutional and statutory
grounds.
Regulations beyond those identified above that have been mentioned
in the recent public discussion of this issue include:
* a prohibition on possession of all handguns or all
firearms on any street or sidewalk; or,
* a prohibition on possession of all handguns or all
firearms off one's own property; or,
29
7
• a prohibition on possession of all handguns within the
Town limits.
Comment: Based on the reported decisions of the North
Carolina Appellate Courts, I do not believe any of these three
regulations would be found to be authorized by the North
Carolina General Statutes and to be consistent with the North
Carolina Constitution.
3 . Regulation With Resoect! To Who May Possess Firearms
The Court in Earner, said it would be "a reasonable regulation and
not an infringement of the right to bear arcs to prohibit the
carrying of deadly weapons when under the influence of intoxicating
drink . . . . 71 The Council may wish to consider:
a) a prohibition on the possession, on the streets,
sidewalks, and alleys, of a firearm while
consuming, or under the influence of, drugs or
alcohol.
Comment: Based on the Berner decision this is clearly a
reasonable regulation. Because this regulation does not
restrict who may display firearms, but only regulates the
circumstances under which they can display firearms, arguably
it is within the Town's statutory authority.
b) a prohibition on the possession of a firearm
without a permit issued by the Town Police
Department.
Comment: This would appear to be inconsistent with both the
Town's statutory authority and with the opinion of the Court
in State v. Kerner.
c) a prohibition on the display of a firearm by
persons under a certain age, or by persons who have
been convicted of certain crimes, or by persons who
have not received some type of government-sponsored
training program.
Comment: To a certain extent the State and Federal
Governments have already enacted laws in these areas. (In
addition to those statutes mentioned in the March, 1990,
memorandum, the General Assembly in 1993 enacted a new law
prohibiting possession of handguns by persons under eighteen
years of age.) Additional Town regulations in this area would
likely be challenged as being beyond our statutory authority.
d) a requirement that a person possessing a firearm
meet all state and federal regulations which now
apply to the purchase and sale of firearms.
3G
8
Comment: Both the State and Federal Government have
requirements that apply to the transfer of certain weapons and
that prohibit some persons from acquiring firearms. For
example, North Carolina law provides that permits' for the
sale, transfer or receipt of any pistol, otherwise required,
may not be issued to persons under indictment for most
felonies, fugitives from justice and unlawful users of
narcotics. However, persons in these categories who come into
lawful possession of firearms could continue to possess them.
Additional Town regulations in this area would likely be
challenged as being beyond our statutory authority.
4 . Regulation Based On The Size Of The Firearms
The Council's August 23 request was for this report to specifically
address regulation of handguns. Recent public discussion of this
subject has focused on the idea of prohibiting handguns, but not
all arms. The State Supreme Court, in the Kerner case, stated that
a prohibition of all pistols would be unconstitutional.' The Court
at the same time stated:
It is also but a reasonable regulation, and one which has
been adopted in some of the states, to require 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.
In State v. Fennell (the 1989 decision cited above) , the Court of
Appeals quoted this language from Kerner and stated:
Thus, the State can regulate the length of a particular
firearm as long as there is a reasonable purpose for
doing so.
Comment: Wile state law prohibits the carrying of any weapon
concealed, the State has not set a minimum size for firearms.
The Court in erne= indicates that some minimum size
requirement, to prohibit small handguns which are easily and
ordinarily concealed, would be constitutionally permissible.
The Town has by state statute the authority to regulate the
display of firearms on the streets, sidewalks, alleys, and
other public property. An argument could be made that the
' For most counties, including Orange, permits are issued by
the sheriff. In other counties, pistol permits are issued by the
clerk of court. N.C.G.S. Chapter 14, Articles 52A and 53.
The words "pistol• and "handgun■ appear to be without legal
distinction for purposes of considering possible regulations.
State v. Faulkner, 168 S.E.2d 9, 13 (N.C. App. 1969) .
9 31
Town can prohibit firearms of such a size as to be easily and
ordinarily concealed.. The argument would be, in part, that
prohibition of such firearms is appropriate because firearms
of such a size are not normally expected to be displayed.
Moreover, even if they were possessed without any intention to
conceal, they might be so small as to not be visible to other
persons a reasonable distance away.
There would be a strong likelihood that such a regulation
would be challenged on the issue of statutory authority. If
such a prohibition were limited to the prohibition of the
possession of small handguns on the public streets, sidewalks,
etc. , perhaps with certain specific exceptions, for example,
to allow their being transported from a target range to a
place of residence, the risk of a successful challenge on
statutory authority grounds would be reduced.
II. PURSUIT OF ADDITIONAL LOCAL AUTHORITY OR STATEWIDE LEGISLATION
Many of the limitations on the Town's authority to enact additional
regulations related to firearms could be modified by either local
or general legislation. The Town Council may wish to consider, on
its own or in consultation with other local municipalities or with
the League of Municipalities, initiating steps to give the Town
greater authority to regulate firearms. For example, the Council
might wish to discuss initiating efforts to seek legislative
authority for local governments to prohibit firearms of less than
some minimum size. That size would need to be established to meet
the standard set by the Court which indicated that weapons which
are "easily and ordinarily carried concealed" may be prohibited.
The Council may wish to discuss seeking changes in state law to
prohibit weapons of less than a certain size in accordance with the
There= language. Further, a change in state law might be requested
that would sake possession of firearms clearly subject to the same
standards as currently apply to the transfer of those firearms.
Depending on what legislative authority is received, what
ordinances are enacted, e.nd the decisions of our Courts, discussion
of initiating efforts to seek a change to the State Constitution
might be considered.
To the extent that any major local ordinance regulation might raise
questions of the Town's statutory and constitutional authority, the
Council may wish to consider whether to request an opinion from the
Attorney General of North Carolina prior to enactment. Such an
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10
opinion would be advisory only and ultimately the legality of any
ordinance would be determined through the Courts.'
III . USE OF EXISTING LAWS AND IXPOSITION OF MORE SEVERE
SENTENCES FOR GUN RELATED OFFENSES
The Town Council may wish to consider supporting, through local law
enforcement agencies, the Task Force on Violent Crime and ' Drug
Abuse, the Courts, and in cooperation with other governments and
public institutions, use of existing laws and imposition of more
severe penalties for violation of laws and ordinances where weapons
are involved, both in terms of punishment and confiscation of
weapons. The attached March, 1990, memorandum identifies some of
the criminal laws related to use or possession of weapons.
Recommendation: That Council hear public comment and consider this
matter further.
Attachments:
1. April 13, 1992 Memorandum to Mayor and Council on Firearm
Regulation
2 . March 26, 1990 Memorandum to Mayor and Council on Firearm
Regulation
3 . 1990 Article on State v. Fennell from M.C. Lay Review
4 . August 23, 1993 Letter from Moore and Van Allen Attorneys at
Law
s The Town has received a letter from a law firm offering to
provide legal assistance, without charge, to defend the Town in the
event a lawsuit is filed challenging the Council's enactment of an
ordinance regulating or banning handgun possession. A copy of that
letter is attached to this report. Such assistance would be
helpful in the event the Council enacts an ordinance that is later
subject to legal challenge. It would not be appropriate, in my
opinion, for the Council to alter its judgment as to what is a
proper ordinance on the basis of such an offer.
33
AGENDA #10
MEMORANDUM
TO: Mayor and Council
FROM: W. Calvin Horton, Town Manager
Ralph D. Karpinos, Town Attorney
SUBJECT: Setting Public Hearing to Consider Specific Additional
Town Regulation of Firearms and Legislative Initiatives
DATE: October 25, 1993
Tonight the Council is asked to consider whether to schedule a
special public hearing and forum for November 9, 1993 to receive
public comment on specific possible additional firearm regulation
ordinances and legislative initiatives. No action other than
scheduling the hearing and forum is requested tonight.
The attached Resolution A would call a public hearing for November
9 , 1993 to receive public comment on specified new firearm
regulation ordinances.
Resolution B would call a public forum for the same evening to
receive public comment on potential modification in state laws to
further regulate firearms.
Background
On September 7 and 8 , the Council held a public hearing on the
general subject of Town initiatives to regulate the possession of
firearms, especially handguns. The minutes of that public hearing
are included with this agenda item.
We have carefully reviewed and considered the comments at the
public hearing, numerous "recommendations and comments received
before and following the hearing, both by telephone and in writing,
and applicable constitutional and statutory law.
We now recommend the Council call a public hearing and forum for
November 9, 1993 , to receive comments on additional Town ordinances
regulating firearms and possible legislative initiatives.
Discussion
A. Recommendations for Possible Ordinance
Listed below are the specific ordinance proposals we recommend the
Town consider enacting. If the Council wishes to consider these at
a public • hearing, draft ordinances would be prepared for
presentation at the hearing.
34
2
Specifically we recommend the Council consider ordinances which
would :
1 . Prohibit the display on Town streets, sidewalks, alleys and
other public property of any firearm by any person consuming
or under the influence of alcohol or any other impairing
substance.
Comment: As discussed in the September 7 memorandum, the
Supreme Court of North Carolina has said such a
regulation would be reasonable. We propose that the
draft ordinance include language similar to existing law
pertaining to impaired driving, with an objective
standard for alcohol concentration (suggested to be 0 . 04 ,
consistent with the standard for impaired driving in a
commercial vehicle) and the more subjective statutory
standard of "under the influence of an impairing
substance. " )
2 . Prohibit the display of any firearm at polling places.
Comment: As discussed in the September 7. memorandum, the
Supreme Court of North Carolina has said such a
regulation would be reasonable.
3 . Prohibit the display of any firearm at any public assembly in
Chapel Hill on public streets , sidewalks, alleys and other
public property.
Comment: As discussed in the September 7 memorandum, the
North Carolina Supreme Court has said a prohibition on
firearms at public assemblies would be constitutional .
State law (G.S. Sec. 14-277 . 2) presently prohibits
possession of dangerous weapons at some public
assemblies, specifically at any "parade, funeral
procession, picket line, or demonstration upon any public
place owned or under the control of the State or any of
its political subdivisions . " We propose the Council
consider an ordinance that would make illegal the display
of any firearm at any public assembly (to be defined by
ordinance to include gatherings of 3 or more persons
within an area so that the persons present are engaging
in one or more common activities and can communicate with
each other without use of voice amplifying or
transmitting devices) on public property, streets,
sidewalks or alleys. We propose setting the number for
a public assembly at three or more based on North
Carolina General Statute 14-288 . 2 , which defines a riot
as a "public disturbance involving an assemblage of three
or more persons. . . " .
Private property owners can authorize Town law
enforcement officers to regulate parking and to enforce
trespass laws on their property. By doing so, private
property could be considered sufficiently public in
35
410
3
nature so as to allow this prohibition on weapons to
apply to public assemblies on private commercial parking
areas. Exceptions would need to be included for law
enforcement personnel and other designated lawful
purposes .
4 . Prohibit the display, on the streets, sidewalks and alleys of
the Town of any small handgun, to be defined by size so as to
prohibit weapons which are "easily and ordinarily carried
concealed. "
Comment: As indicated in the September 7 memorandum, a
prohibition on easily and ordinarily carried concealed
weapons was identified by our Supreme Court as a
reasonable and constitutional regulation at the State
level . By linking this regulation to the Town's
authority to regulate the display of firearms on the
streets, sidewalks, etc. , we believe such an ordinance
would stand a reasonable chance of being upheld by the
Courts.
The draft ordinance would define small handguns by length
of barrel and overall weapon size, and provide for
certain exceptions, including one to allow the
transportation of such weapons for specified lawful
purposes.
5 . Prohibit the sale, possession, storage, use or conveyance
within the Town, of any weapon of mass death and destruction,
to be defined to include "assault" and certain "semi-
automatic" weapons.
Comment: This recommendation was developed based on
comment at the public hearing and information received
after the hearing. The Town is specifically authorized
by statute (G.S. Sec. 160A-183) to prohibit the
possession, use and conveyance of "weapons or
instrumentalities of mass death and destruction. "
State law (G.S. Sec. 14-288 . 8) prohibits weapons of mass
destruction and defines the term for purpose of the state
prohibition. That definition includes automatic, but not
semi-automatic weapons. We recommend that the term
"weapon of mass death and destruction" be defined by
ordinance to include certain weapons which are not
already prohibited by the state law. A tentative
definition of this term would include:
* any semi-automatic weapons that accept a detachable
magazine with a capacity of 20 or more rounds;
0 36
4
* semi-automatic shotguns with a magazine capacity of
more than six rounds;
* any semi-automatic firearm that is a modification of
an automatic firearm (defined in North Carolina General
Statute 14-288 . 8) .
The term "weapon of mass destruction" might further be
defined to include parts designed or intended to convert
a firearm into a semi-automatic weapon as defined as well
as any firearm which may be restored to an operable semi-
automatic weapon.
We propose that there be an exception in this ordinance
applicable to law enforcement personnel carrying
department issued and approved firearms as part of their
law enforcement duties and for other designated lawful
purposes.
In accordance with the Council 's position stated at the September
7-8 public hearing, Resolution A would call a public hearing on
these specific ordinance recommendations.
We believe the specific ordinance provisions recommended for
further consideration are all reasonable steps and that a fair
argument could be made in court, if necessary, that these
ordinances are within the Town's statutory and constitutional
authority to enact.
If Resolution A is adopted, draft ordinances would be prepared for
presentation at the public hearing.
B. Response to Comments and Questions from Public Hearing
Our notes from last month's hearing indicate two specific questions
or issues raised at the hearing needing individual responses.
1. A citizen commented that a statement in the Town Attorney' s
memorandum of September 7 regarding possession of firearms by
certain individuals was in error based on federal law. A
separate memorandum from the Attorney responds to that
comment.
2 . A question was raised regarding the applicability of Town
firearm regulation ordinances to the University campus .
Ordinances enacted under the Town's police powers are
generally applicable within the Town limits and on Town-owned
property outside the Town's corporate limits. In addition, we
note that firearms are already prohibited by state law on
property owned or operated by the University.
37
5
C. Suggestions Previously Identified and Not Recommended for
Ordinances at this Time
Several other suggestions were identified in the agenda memorandum
for the September public hearing, at the hearing itself, or
subsequent to the hearing for consideration as local or state
regulation of firearms. These include:
1 . Prohibiting handguns or all firearms on the downtown
sidewalks.
2 . Prohibiting handguns or firearms in vehicles on Town streets .
3 . Imposing Town (or County) firearm licensing or registration
requirements.
4 . Prohibiting or regulating the sale of weapons or ammunition.
5 . Confiscating weapons where the weapon was used or possessed in
the course of the criminal activity.
6 . Increasing penalties and sentences for criminal offenses
involving weapons.
7 . Allowing the carrying of concealed weapons by citizens or by
law enforcement officers outside their jurisdiction.
We recommend the Council not consider enacting any local ordinances
on these matters at this time. We believe that some of these
proposals would be inconsistent with the North Carolina
Constitution. In addition, we are not able to identify existing
legislation which we are comfortable in stating would serve as
statutory authority for many of these.
D. Legislative Needs
Resolution B would seek citizens' comments on November 9 on whether
the Council should request the General Assembly to enact State-wide
laws concerning:
1 . Requirements for safe keeping of handguns and other firearms
to reduce their potential for theft, use by children, etc.
2 . Requirements for licensing handgun and other firearm owners as
to their knowledge of the safe use and storage of firearms and
as to the laws concerning possession, carrying and use of
firearms.
Resolution B also would request comments on whether the Council
should seek legislative action calling a public referendum on
changing the State Constitution to enable more restrictive statutes
and local ordinances concerning handgun control .
i g 38
6
Finally, Resolution B would invite the Leadership Committee of the
Violent Crime and Drug Abuse Program to make comments .
Manager's Recommendation: That the Council adopt Resolution A
calling a public hearing on the specific additional ordinances
recommended for further consideration and adopt Resolution B
requesting public comment on November 9 on proposed legislative
requests as discussed above.
Attachments:
1 . Minutes of September 7-8 hearing.
2 . Cover memorandum from September 7-8 hearing.
3 . Memorandum (October 25) from Town Attorney.
39
AGENDA #1
MEMORANDUM
TO: Mayor and Council
FROM: W. Calvin Horton, Town Manager
Ralph D. Karpinos, Town Attorney
SUBJECT: Public Hearing Proposed Firearm Regulation Ordinance
DATE: November 4 , 1993
This public hearing has been called to receive citizens' comments
on a proposed ordinance which would add additional firearm
regulations to the Town Code.
Background
On October 25, 1993 , the Town Council called this special meeting
to receive citizen comments on a proposed ordinance restricting the
possession and display of firearms.
On September 7 and 8 , the Council conducted a public hearing on the
general subject of firearm regulation. Following the hearing, the
Council referred the matter to the Manager and Attorney. On
October 25, the Council received a report recommending the Council
consider an ordinance with five additional regulations on the
display and possession of certain firearms. At that time the
Council scheduled this special meeting to receive citizen input on
the recommended ordinance. The proposed ordinance has been
prepared for this special meeting and is attached to this
memorandum.
Summary
The attached proposed ordinance which would add five new
regulations related to:
1 . the display of firearms by persons consuming or under the
influence of drugs or alcohol.
2 . the display of firearms at polling places.
3 . the display of firearms at public assemblies.
4 . the display of small handguns.
5 . the possession of certain semi-automatic weapons which would
be defined as weapons of mass death and destruction.
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2
In addition to the regulations themselves, there are three key
issues related to the proposed ordinance:
1 . Exclusions.
2 . Definition of Public Property.
3 . Enforcement and Penalties.
Explanation of Regulatory Provisions
The five regulatory provisions of the proposed ordinances are
summarized below.
1 . Display of firearms by persons consuming or under the
influence of drugs and alcohol.
Section 11-131 would prohibit the display of firearms on the
public streets, alleys, sidewalks or other public property, by
persons consuming or under the influence of alcohol or drugs.
The ordinance establishes both a subjective standard, "under
the influence of an impairing substance", and an objective
standard, a blood alcohol concentration of . 04 percent. We
would expect that in most cases, absent the consent of the
person involved or an associated driving while impaired
charge, that the subjective standard would be used in any
under the influence case brought under this ordinance.
2 . Display of firearms at polling places.
Section 11-132 would prohibit the display of firearms at
polling places. Polling places are defined by reference to
the state law regulating polling places during the period in
which elections are being conducted. This would include the
area within 50 feet of the building in which the voting place
is located while polls are open.
3 . Display of firearms at public assemblies.
Section 11-133 would prohibit the display of firearms at
public assemblies on any street, sidewalk, alley or other
public property of the Town. Public assembly is defined as
the gathering of three or more persons in close proximity,
engaging in one or more common activities, and able to
communicate without use of any special equipment. Certain
public assemblies (parades, picket lines, demonstrations and
funeral processions) already regulated as to firearm
possession under state law would be excluded from the
ordinance.
41
3
4 . Display of small handguns.
Section 11-134 would prohibit the display of small handguns on
the public streets, sidewalks, alleys and other public
property. Small handguns, those which are easily and
ordinarily carried concealed, are defined as those under six
inches in length and firearms without handgrips under eight
inches in length. The ordinance includes the method of
determining the length of these weapons.
5 . Possession of weapons of mass death and destruction.
Section 11-135 would prohibit the possession, off one's own
premises, of a weapon of mass death and destruction. The
ordinance includes a detailed definition of a "weapon of mass
death and destruction. " Included within the definition are:
a. semi-automatic rifles accepting a detachable magazine
which can hold more than 20 rounds of ammunition;
b. semi-automatic shotguns with a magazine capacity of more
than six rounds; and,
c. semi-automatic handguns which are:
modifications of prohibited semi-automatic rifles;
designed to accept a magazine with a capacity of more
than 20 rounds; and,
actually possessed while a detachable magazine with a
capacity of more than 20 rounds is attached or easily
available to be attached.
The definition of "weapon of mass death and destruction" was
developed primarily from ..,the definition of "assault weapon"
contained in an ordinance enacted by the City of Cleveland, Ohio.
Cleveland's ordinance was upheld in August by the Supreme Court of
Ohio as being valid under the Constitutions of Ohio and the United
States. (Arnold v. Cleveland, 67 Ohio St. 3d 35, 616 N. E. 2d 163
(1993) ) . The definition is drawn to exclude commonly used semi-
automatic hunting weapons and has been reviewed by persons familiar
with firearms.
Further, the definition of "weapon of mass death and destruction"
does not include weapons, including automatic weapons, which are
defined as weapons of mass death and destruction by State law and
prohibited by State law.
42
4
Other Issues
1 . Exclusions and limitations
The proposed ordinance contains a number of limitations and
exclusions. We believe these exclusions are necessary and
appropriate to conform the proposed ordinance to the
limitations on the Town's authority in state and federal
statutory and constitutional law. These include:
a. The prohibitions on displaying firearms at polling places
and public assemblies do not apply to persons authorized
by state and federal law to carry firearms in the
performance of their duties.
b. The prohibition on the display of small handguns does not
apply to persons authorized by state and federal law to
carry firearms in the performance of their duties.
c. The prohibition on possession of weapons of mass death
and destruction includes a number of significant limiting
provisions.
(1) This section does not regulate the possession of
such weapons on one's own premises.
(2) This section does not regulate weapons which are
already defined as weapons of mass death and
destruction and prohibited by state law.
(3) This section does not regulate possession of such
weapons by persons authorized by state or federal
law to carry firearms in the performance of their
duties or persons exempted by state law from the
state prohibition on possession of weapons of mass
death and destruction.
d. Section 11-137 includes a general exemption, based on
federal law, allowing the transportation of any firearm
from a place where it may be lawfully possessed to
another place where it may be lawfully possessed. This
exemption requires that during the transportation the
firearm be unloaded and not readily accessible to the
person involved in the transportation.
2 . Definition of Public Property,
Some- of the statutory authority which serves as a basis for
these additional regulations is dependent on property being
"public property. " Section 11-136 defines "public property"
to include privately owned outdoor areas where the Town, at
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the request of the owner, has assumed the exercise of some
traditional police power regulations generally associated with
public property. We believe a fair argument can be made in
court, if necessary, that such open parking lots and other
areas would have sufficient characteristics of public property
to allow the Town to enforce these regulations.
3 . Enforcement and Penalties.
Section 11-139 includes the enforcement and penalties
provisions.
a. Section 11-139 (a) provides that the violation of any
provision of the ordinance is a misdemeanor and
punishable by a maximum fine of $500 or imprisonment for
not more than 30 days. This is the maximum criminal
penalty allowed by State law for violation of a local
ordinance.
b. Section 11-139 (b) authorizes the Town, consistent with
provisions of State law, to bring a civil proceeding and
ask the Court to order that a weapon displayed or
possessed in violation of this Article be confiscated.
Unlike provisions of State law regarding disposition of
firearms where a violation of a State statute has
occurred, firearms found in violation of this ordinance
could not be automatically confiscated and destroyed.
This provision would only allow the Town to apply to the
Court in an independent civil law suit for an order
directing the weapon be confiscated. A civil hearing
would be held, with opportunity for parties to be
represented by counsel. It would be up to the Court to
consider the specific facts in any case and determine if
confiscation of a firearm was an appropriate equitable
remedy.
Manaaer's Preliminary Recommendation: That the Council enact the
attached Ordinance.
44
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AN ORDINANCE ENACTING ADDITIONAL TOWN REGULATIONS OF FIREARMS
BE IT ORDAINED by the Council of the Town of Chapel Hill as
follows :
Section 1. Chapter 11 of the Town Code is hereby amended by adding
a new Article XIV to read as follows:
ARTICLE XIV. ADDITIONAL RESTRICTIONS ON POSSESSION
AND DISPLAY OF FIREARMS
Sec. 11-130. Findings and Purposes.
The Town Council does hereby find that:
a. North Carolina law authorizes cities and towns, within
statutory and constitutional limitations, to regulate the use
and display of firearms.
b. North Carolina law authorizes cities and towns, within
statutory and constitutional limitations, to prohibit the
possession of weapons or instrumentalities of mass death and
destruction.
c. North Carolina law authorizes cities and towns, within
statutory and constitutional limitations, to define, prohibit,
regulate or abate acts or conditions detrimental to the
health, safety, and welfare of their citizens and the peace
and dignity of their communities.
d. The proliferation and use of small, readily concealed handguns
and the proliferation and use of semi-automatic weapons create
an ever-increasing danger of violence and crime, especially
because of an increase in drug-related crimes, and pose a
serious threat to the health, safety, and welfare of the
citizens of Chapel Hill.
e. Semi-automatic weapons are primarily designed to be used as
anti-personnel weapons. The lawful civilian application or
use of such weapons is merely incidental to such primary anti-
personnel purposes.
f. Semi-automatic weapons, which are not prohibited by State law,
can be virtually as great a threat to the health, safety, and
welfare of the citizens of Chapel Hill as fully automatic
weapons, which are prohibited by State law. Fully automatic
weapons which can discharge a 30-round magazine in two seconds
can discharge the same magazine, if operated as semi-automatic
45
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weapons, in five seconds, and are, as semi-automatic weapons,
thus capable of causing mass death and destruction.
g. The function of semi-automatic weapons as recreational weapons
is far outweighed by the threat that the weapon will cause
injury and death to human beings.
h. Small, readily concealed handguns, as opposed to larger
firearms, are more likely to be carried on the public streets
and sidewalks and because they are often carried in an
unlawful, concealed manner they pose an increased danger to
public safety and welfare, and are otherwise more likely to be
used in conjunction with criminal activity.
i . Handguns which are less than six inches in overall length are
easily and ordinarily carried concealed.
J . Firearms without handgrips which are less than eight inches
in length are easily and ordinarily carried concealed.
k. The display of firearms on the public streets, sidewalks and
alleys of the Town by persons who are consuming or under the
influence of drugs or alcohol, poses a threat to the safety
and welfare of the citizens of Chapel Hill due to the effects
of such drugs and alcohol on said persons' judgment.
1 . The display of firearms at public assemblies on the streets,
sidewalks, alleys and other public property of the Town,
creates a potential hazard to the health, safety, and welfare
of the citizens of Chapel Hill.
m. Private parking lots and privately owned open areas, when
subject to Town police officer parking and/or trespass
regulatory authority at the request of the owners, function in
virtually the same manner as publicly-owned property.
n. The display of firearms at polling places could be disruptive
to the peaceful conduct of the election processes and is
detrimental to the health, safety, and welfare of the citizens
of Chapel Hill.
o. The establishment of reasonable additional regulations o
3u on
firearms in these areas, within the limits prescribed by
constitutional and statutory law, serves to enhance the
health, safety and welfare of the citizens of Chapel Hill and
the peace and dignity of the Town.
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Sec. 11-131. Prohibition on display of firearms by persons
consuming or under the influence of alcohol or drugs.
a. No person shall display on the Town streets, sidewalks, alleys
or other public property, any firearm while said person is
consuming or under the influence of alcohol or any other
impairing substance.
b. A person commits a violation of section (a) if he displays a
firearm upon any street, sidewalk, alley or other public
property:
1. While actually consuming any alcoholic beverage or other
impairing substance; or,
2 . While under the influence of an impairing substance; or,
3 . After having consumed sufficient alcohol he has, at any
• relevant time after displaying the firearm, a blood
alcohol concentration of 0. 04 percent or more.
Sec. 11-132. Prohibition on display of firearms at polling places.
a. No Berson shall display any firearm at any polling place.
b. For purposes of this Article, the term "polling place" shall
mean any area where the restrictions contained in North
Carolina General Statute Sec. 163-147 apply.
c. This Section shall not apply to persons authorized by State or
federal law to carry firearms in the performance of their
duties.
Sec. 11-133. Prohibition'', on display of firearms at public
assemblies.
a. No person shall display a firearm at any public assembly on
any street, sidewalk, alley or other public property.
b. For purposes of this Article, the term "public assembly" shall
mean the gathering of three or more persons within an area of
close proximity so that the persons present are engaging in
one or more common activities and can communicate with each
other without use of voice amplifying or transmitting devices.
The term public assembly shall not include any parade, funeral
procession, picket line or demonstration regulated by N.C.
General Statute Sec. 14-277 . 2 or any assembly regulated by
N.C. General Statute Sec. 14-269. 3 .
47
9
c. This Section shall not apply to persons authorized by State or
federal law to carry firearms in the performance of their
duties.
Sec. 11-134 . Prohibition on display of small handguns.
a. No person shall display, on any street, sidewalk, alley or
other public property any handgun which is easily and
ordinarily carried concealed.
b. For purposes of this Article, the term "handgun which is
easily and ordinarily carried concealed" shall mean any
handgun or other firearm with an overall length of less than
six inches; provided, however that in the case of a handgun or
firearm that does not have a handgrip, this term shall mean
any such handgun or firearm with an overall length of less
than eight inches.
c. For purposes of this Article, the length of a handgun shall be
determined as follows:
1 . as the length of a line drawn from the tip of the barrel
of the handgun along the length of the barrel to the
point where that line intersects with a perpendicular
line drawn up from the point on back of the handgrip
farthest from the tip of the barrel; or,
2 . if the length of the handgun measured along the barrel
extends back beyond the point where the lines described
in c) 1) intersect, the length shall be determined by the
length of the gun measured straight back from the tip of
the barrel for the full length of the gun; or
3 . if the handgun does not have a handgrip, the length shall
be determined by measuring the overall length of the
weapon by a straight line connecting the tip of the
barrel to the point farthest away from the tip of the
barrel.
d. This Section shall not apply to persons authorized by State or
federal law to carry firearms in the performance of their
duties.
Sea. 11-135. Prohibition on possession of weapons of use
destruction.
a. No person shall possess, off his or her own premises, a weapon
of mass death and destruction.
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b. For purposes of this article the term "weapon of mass death
and destruction" shall mean:
1 . any sem' utomatic action, center fire rifle or carbine
that1ccept a detachable magazine with a capacity of 20
rounds o ore;
~ A rte
2 . any semi-automatic shotgun with a magazine ,capacity of
more than six rounds;
3 . any semi-automatic handgun that is:
a) - uodification of a rifle described in section
--) 1) or a modification of an automatic firearm; or
originally designed to accept a detachable
magazine with a capacity of more than 20
rounds; or
Cl 3) possessed while a detachable magazine with a
capacity of more than 20 rounds, usable with
said handgun, is attached or readily or
directly accessible or-
4) any part, or combination of parts, designed or
intended to convert a firearm into a weapon of
mass death and destruction as defined in this
Section or any combination of parts from which
a weapon of mass death and destruction, as
defined in this Section may be readily
assembled if those parts are in the possession
or under the control of the same person.
�__----c For purposes of this Article the term "weapon of
mass death and destruction" shall not include:
--1) any firearm within the definition of "weapon
of mass' death and destruction" contained in N.
C. General Statute 14-288 . 8.
any firearm that uses . 22 caliber rimfire
ammunition with a detachable magazine with a
capacity of 30 rounds or less.
any semi-automatic weapon which has been
modified to either render it permanently
inoperable or to permanently make it a device
no longer defined as a weapon of mass death
and destruction.
d) This Section shall not apply 1 to
persons authorized
by State or federal law to carry firearms in the
performance of their duties or persons exempted, by
N.C. General Statute Sec. 14-288 .8 (b) from the
provisions of N.C. General Statute Sec. 14-288 .8 .
49
11
Sec. 11-136. Public property defined.
For purposes of this Article, the term "public property" shall
include, but not be limited to:
a. any privately owned public vehicular area as identified in N.
C. General Statute Sec. 160A-301 (d) where the Town has
properly enacted parking regulations and, in addition, any
privately owned outdoor area for which the owner has, pursuant
to N. C. General Statute Sec. 14-159 . 13 , authorized Town
police officers to trespass persons on said property during
specified hours; provided, however, that such privately owned
property shall only be considered public property for purposes
of this Article if signs have been posted, in a manner
reasonably likely to come to the attention of persons
entering, with notice of the Town's exercise of regulatory
authority.
b. property owned by, or under the control of, the Town of Chapel
Hill or some other government or public agency.
Sec. 11-137. Exemptions.
In accordance with United States Code Title 18 , Section 926A,
nothing in this Article shall be construed as prohibiting any
person from transporting, shipping, or receiving a firearm for any
lawful purpose from any place where he may lawfully possess and
carry such firearm to any other place where he may lawfully possess
and carry such firearm if, during such transportation the firearm
is unloaded, and neither the firearm nor any ammunition being
transported is readily accessible or is directly accessible from
the passenger compartment of such transporting vehicle: Provided,
that in the case of a vehicle without a compartment separate from
the driver's compartment the firearm or ammunition shall be
contained in a locked container other than the glove compartment or
console.
Sec. 11-131. Conflict of Laws.
If any portion of this Article shall be preempted or otherwise
declared invalid by any
state or federal authority, such action
shall not operate to invalidate the rest of this Article and the
same shall remain in full force and effect.
Sec. 11-139. Enforcement and Penalties.
a. Criminal penalties. Violation of any provision of this
Article shall be a misdemeanor and shall be subject to a fine
of $500 or imprisonment for not more than 30 days.
is
50
12
b. Civil enforcement. In accordance with N. C. General Statute
Sec. 160A-175 (d) , in the case of any violation under this
Article, the Town may apply to the General Court of Justice
for an appropriate equitable remedy, which may include, but is
not limited to, an order that the weapon displayed or
possessed in violation of this Article be confiscated and
destroyed or transferred to an appropriate law enforcement
agency for the official use of such agency. It shall not be
a defense to the application of the Town for such equitable
relief that there is an adequate remedy at law.
Section 2 . This Ordinance shall become effective December 1, 1993 .
This the day of , 1993 .
51
GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
RATIFIED BILL
CHAPTER 259
SENATE BILL 793
AN ACT TO MAKE IT A MISDEMEANOR FOR A PERSON UNDER
EIGHTEEN YEARS OF AGE TO POSSESS OR CARRY A HANDGUN AND
TO MAKE IT A MISDEMEANOR TO SELL OR TRANSFER ANY HANDGUN
TO A PERSON WHO IS UNDER EIGHTEEN YEARS OF AGE.
The General Assembly of North Carolina enacts:
Section 1. Article 35 of Chapter 14 of the General Statutes is amended
by adding a new section to read:
"§ 14-269.7. Prohibitions on handguns for minors.
(a) Any minor who possesses or carries a handgun is guilty. of a misdemeanor
punishable by imprisonment for up to six months, a fine of up to five hundred dollars
(5500.00), or both.
(bJ This section does not apply:
(1) To officers and enlisted personnel of the armed forces.' of the
United States when in discharge of their official duties or acting
under orders requiring them to carry handguns.
(2j. To a minor who possesses a handgun for educational or
recreational purposes while the minor is supervised by an adult
who is present.
(3) To an emancipated minor who possesses such handgun inside his
or her residence.
(i, To a minor who possesses a handgun while hunting or trapping
outside the limits of an incorporated municipality if he has on his
person written permission from a parent, guardian, or other person
standing in loco parentis.
f(2) The following definitions apply in this section:
(1) Handgun. -- Any dangerous firearm including a pistol or revolver
designed to be fired by the use of a single hand.
al Minor. -- Any person under the age of 18 years of age."
Sec. 2. G.S. 14-269.1 reads as rewritten:
"§ 14-269.1. Confiscation and disposition of deadly weapons.
Upon conviction of any person for violation of G.S. l4 269 [4-269, G.S. [4-269,7.
or any other offense involving the use of a deadly weapon of a type referred to in
G.S. 14-269, the deadly weapon with reference to which the defendant shall liar e
been convicted shall be ordered confiscated and disposed of by the presiding judge at
the trial in one of the following ways in the discretion of the presiding judge.
( 1) By ordering the weapon returned to its rightful owner, but
when such owner is a person other than the defendant and has
filed a petition for the recovery of such weapon with the presiding
judge at the time of the defendant's conviction. and upon a finding
g
•
52
by the presiding judge that petitioner is entitled to possession of
same and that he was unlawfully deprived of the same without his
consent.
(2) By ordering the weapon turned over to a law-enforcement agency
in the county of trial for the official use of such agency, but only
upon the written request by the head or chief of such agency. The
clerk of the superior court of such county shall maintain a record
of such weapons and the law-enforcement agency receiving them.
(3) By ordering the weapon turned over to the sheriff of the county in
which the trial is held to be sold as herein provided. Under the
direction of the sheriff, the weapon shall be sold at public auction
after one advertisement in a newspaper having general circulation
in the county which advertisement shall be at least seven days
prior to sale, The proceeds of such sale shall go to the general fund
of the county in which such weapons are sold. The sheriff shall
maintain a record and inventory of all such weapons received and
sold by him. Sales of such weapons by the sheriff shall be held at
least once each year.
(4) By ordering such weapon turned over to the sheriff of the county
in which the trial is held or his duly authorized agent to be
destroyed. The sheriff shall maintain a record of the destruction
thereof.
(5) By ordering such weapon turned over to the North Carolina State
Bureau of Investigation's Crime Laboratory Weapons Reference
Library for official use by that agency. The State Bureau of
Investigation shall maintain a record and inventory of all such
weapons received.
(6) By ordering such weapons turned over to the North Carolina
Justice Academy for official use by that agency. The North
Carolina Justice Academy shall maintain a record and inventory of
all such weapons received."
Sec. 3. G.S. 14-315 reads as rewritten:
"§ 14-315. Selling or giving weapons to minors.
(a) Offense. -- If any person shall knowingly sell, offer for sale, give or in any way
dispose of to a minor any handgun as defined in G.S. 14-269.7, pistol, pistol or pistol
si cartridge, brass knucks, bowie knife, dirk, shurikin, leaded cane or slingshot
slungshot, he shall be guilty of a misdemeanor. misdemeanor and shall forfeit the
proceeds of any sale made in violation of this section,
(b) Defense. -- It shall be a defense to a violation of subsection (a) of this section
if the person:
Shows that the minor produced a drivers license, a special
identification card issued under G.S. 20-37.7, a militar\
identification card, or a passport, showing his age to be at least the
required age for purchase and bearing a physical description of the
person named on the card reasonably describing the minor: or
(2) Produces evidence of other facts that reasonably indicated at the
time of sale that the minor was at least the required age."
Page 2 Senate Bill 793
53
Sec. 4. This act becomes effective September 1, 1993, and applies to
offenses committed on or after that date.
In the General Assembly read three times and ratified this the 1st day of
July, 1993.
D f'^etaitS . '�iCrit
Dennis A. Wicker
President of the Senate
DANIEL -ift
Daniel Blue, Jr.
Speaker of the House of Representatives
•
II
Senate Bill 793 Page 3
54
GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
RATIFIED BILL
CHAPTER 558
HOUSE BILL 1008
AN ACT TO MAKE IT A CLASS I FELONY TO POSSESS OR CARRY A
FIREARM OR EXPLOSIVE ON EDUCATIONAL PROPERTY OR TO CAUSE.
ENCOURAGE. OR AID A MINOR TO POSSESS OR CARRY A FIREARM
OR EXPLOSIVE ON EDUCATIONAL PROPERTY, TO MAKE IT A
MISDEMEANOR TO CAUSE, ENCOURAGE, OR AID A MINOR TO TAKE
OR POSSESS OTHER TYPES OF WEAPONS ON EDUCATIONAL
PROPERTY, TO MAKE IT A MISDEMEANOR TO FAIL TO STORE
FIREARMS IN A REASONABLE MANNER FOR THE PROTECTION OF
MINORS AND TO FAIL TO WARN A PERSON OF THIS LAW UPON THE
SALE OR TRANSFER OF A FIREARM.
The General Assembly of North Carolina enacts:
Section 1. G.S. 14-269.2 reads as rewritten:
"§ 14-269.2. Weapons on campus or other educational property.
It shall be unlawful for any perms to possess, or carry, whether openly or
explosive as defined in G.S. 14 284.1, bowie knife, dirk, dagger, slungshot, leaded
cane. switch blade knife, blackjack, metallic knuckles or any othcr weapon of like
kind, not used solely for instructional or school sanctioned ceremonial purposes, in
grounds, recreation area, athletic field, or other property owned, uscd or operated by
any hoard of education, school, college, or university board of trustees or directors
for the administration of any public or private educational institution. For the
purpose of this section a self-opening or switch : : _ - • - • - - -
similar contrivance, and the above phrase `weapon of likc kind' incl es- razors and
razor blades (except solely for personal sitav-ing) and any s.liaip pointed or edged
persons: Officers and enlisted personnel of the armed forces of the United States
when in discharge of their o'ficia-i d-uties as such and acting under ewers requiring
them to carry arms or weapons, civil officers of the United States while in the
discharge of their official duties, officers and soldiers of the militia and the national
guard when called into actual service, officers of the State, or of any county, city, or
town, charged with the execution of the laws of the State, when acting in the
discharge of their official duties, any pupils wlio aide Ili-embers of the Reserve Officer
their official class duties, and any private police employed by the administration or
in the discharge of their duties.
55
- - _ a : .-: - • zuil{t of a ml.;demcunot'
(a) The fol lo‘ti ing definitions apple to this section:
( 1 ) Educational property, -- Any public or private school building or
bus, public or private school campus, grounds, recreational area,
athletic field. or other property owned, used, or operated by any
hoard of education. school, college, or university board of trustees.
or directors for the administration of any public or private
educational institution.
(2) Student. -- A person enrolled in a public or private school. college
or university, or a person who has been suspended or expelled
within the last five years from a public or private school, college or
university, whether the person is an adult or a minor.
(31 Switchblade knife. -- A knife containing a blade or blades which
open automatically by the release of a spring or a similar
contrivance.
(� Weapon. -- Any device enumerated in subsection (b) or (d) of this
section.
(b) It shall be a Class I felony for any person to possess or carry, whether openly
or concealed, any gyui, ride, pistol. or other firearm of any kind, or any dynamite
cartridge, bomb, grenade, mine, or powerful explosive as defined in G.S. 14-284.1. on
educational property. However, this subsection does not apply to a BB gun , air rifle,
or air pistol.
(c) It shall be a Class I felony for any person to cause encourage, or aid a minor
who is less than 18 years old to possess or carry, whether openly or concealed, any
gun, rifle, pistol, or other firearm of any kind, or any dynamite cartridge, bomb,
grenade. mine, or powerful explosive as defined in G.S. 14-284.1, on educational
property. However, this subsection does not apply to a BB gun, air rifle, or air pistol.
(d) It shall be a misdemeanor for any person to possess or carry, whether openly
or concealed, any BB gun, air rifle, air pistol, bowie knife, dirk, dagger. slungshot,
leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades
(except solely for personal shaving), and any sharp-pointed or edged instrument
except instructional supplies, unaltered nail files and clips and tools used solely for
preparation of food, instruction, and maintenance, on educational property,
(e) It shall he a misdemeanor for any person to cause, encourage, or aid a minor
who is less than 18 years old to possess or carry, whether openly or concealed, any
BB gun. air rifle, air pistol, bowie knife, dirk, dagger, slungshot, leaded cane,
switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely
for personal shaving), and any sharp-pointed or edged instrument except instructional
supplies. unaltered nail files and clips and tools used solely for preparation of food,
instruction. and maintenance, on educational property.
(f) Notwithstanding subsection (b) of this section it shall be a misdemeanor rather
than a Class I felony for any person to possess or carry, whether openly or concealed,
any gun. rifle. pistol, or other firearm of any kind, on educational property if:
Lu The person is not a student attending school on the educational
property;
(2) The firearm is not concealed within the meaning of G.S. 14-269;
The firearm is not loaded and is in a locked container, a locked
vehicle, or a locked firearm rack which is on a motor vehicle; and
(4) The person does not brandish, exhibit, or display the firearm in
any careless, angry, or threatening manner.
(g) This section shall not apply to:
Page 2 House Bill 1008
56
( 1 ) A weapon used solely for educational or school-sanctioned
ceremonial .ur.oses. or used in a school-a lroved -)ro tram
conducted under the supervision of an adult whose super\ision has
been approved by the school authority;
(2) Armed forces personnel. officers and soldiers of the militia and
national guard. law enforcement personnel. and any private police
employed by an educational institution. when acting in the
discharge of their official duties: or,
(3) Home schools as defined in G.S. 115C-563(a),"
Sec. 2. Chapter 14 of the General Statutes is amended by adding the
following new sections:
"§ 14-315.1. Storage of firearms to protect minors.
(a) Any person who resides in the same premises as a minor, owns or possesses a
firearm, and stores or leaves the firearm (i) in a condition that the firearm can he
discharged and (ii) in a manner that the person knew or should have known that an
unsupervised minor would be able to gain access to the firearm. is guilty of a
misdemeanor if a minor gains access to the firearm without the lawful permission of
the minor's parents or a person having charge of the minor and the minor:
( 1 ) Possesses it in violation of G.S. 14-269.2(b);
(21 Exhibits it in a public place in a careless, angry, or threatening
manner:
th Causes personal injury or death with it not in self defense: or
Uses it in the commission of a crime.
(b) Nothing in this section shall prohibit a person from carrying a firearm on his
or her body, or placed in such close proximity that it can be used as easily and
quickly as if carried on the body.
(c) This section shall not apply if the minor obtained the firearm as a result of an
unlawful entry by any person.
(d) •Minor' as used in this section means a person under 18 years of age who is
not emancipated.
"§ 14-315.2. Warning upon sale or transfer of firearm to protect minor.
(a) Upon the retail commercial sale or transfer of any firearm, the seller or
transferor shall deliver a written copy of G.S. 14-315.1 to the purchaser or transferee.
(b) Any retail or wholesale store, shop, or sales outlet that sells firearms shall
conspicuously post at each purchase counter the following warning in block letters
not less than one inch in height the phrase: 'IT IS UNLAWFUL TO STORE OR
LEAVE A FIREARM THAT CAN BE DISCHARGED IN A MANNER THAT A
REASONABLE PERSON SHOULD KNOW IS ACCESSIBLE TO A MINOR.'
(c) A violation of subsection (a) or (b) of this section is a misdemeanor."
House Bill 1008 Page 3
57
•
Sec. 3. This act becomes effective December 1, 1993. and applies to all
offenses or acts of delinquency committed on or after that date.
In the General Assembly read three times and ratified this the 2.4th day of
July. 1993.
MAHC AA, t,1GHY
Marc Basnight
President Pro Tempore of the Senate •
DANIEL SLOE, . R.
Daniel Blue, Jr.
Speaker of the House of Representatives
•
Page 4 House Bill 1008
I � 76 58
AN ORDINANCE LIMITING THE DISCHARGE OF A FIREARM IN ORANGE COUNTY
Pursuant to North Carolina General Statutes, Section
153A-129, the Board of County Commissioners of Orange County
ordains that:
SECTION I.
It shall be unlawful for any person to discharge a
firearm outside the corporate limits of any municipality within
Orange County except in defense of person or property, provided,
however, that this ordinance shall not be applicable to:
• A: The discharge of a firearm by any law enforcement
officer in the course and scope of such officer's duties
• as a law enforcement officer or by any other person
•
acting pursuant to the lawful directions of any law
enforcement officer;
B. The discharge of a firearm on one's own land or on
the lands of another with the prior consent of such
• landowner so long as the discharge of the firearm is in
such a manner as to prevent the travel of the projectile,
missile, bullet, shot, etc. , onto the land of another;
C. The discharge of a firearm for any lawful hunting
purposes, provided that such discharge is upon one's own
land or upon the land of another with the prior per-
• mission of the owner or possessor of said land.
SECTION II.
In no event shall the discharge of any firearm permitted
under Sections I(B) or (C) be lawful within 50. feet of any public
street, public building, or within 200 feet of the occupied
dwelling of another without such other land owner's prior express
permission.
SECTION III.
Any person who violates the provision of this ordinance
shall be guilty of a misdemeanor and shall, upon conviction, be
WINSTON, COLEMAN
AND BERNHOLZ fined or imprisoned, or both, in the discretion of the Court.
ATTORNEYS AT LAW
CHAPEL HILL,N.C.
HILLSBOROUGH,N.C.
•
,, Y}�.QQAM4(4{ AN ORDINANCE TO REGULATE THE USE OF FIREARMS AND-AIRGUNS FFU4y� 59
q�'�,:•'•'' "�Ci Yr Section 1,Inlen,The Board of COmmiee onefe of This County has determined Thal lh health and t tyaflhuse F' ..........9tl{I
. tS •'.`dal, citizens zens of Durham County who five in predom nanny residential areas of the county rep that The discharge f , T.t 1 .!,
-' ., 1' flearml and airguns In or near(hose predominantly residential aroas be prohibited,and that there be'restdctions on 4 -..,.....€4. 1';.,7,T
of 7
.4{_the discharge of firearms in The remaining areas of Durham County.It is,Therefore.the intant of the Commissioners 'r••' / :,k�.
t a }by These regulations to protect the health and safety of its citizens and their property,and In promote the quiet• _i. a a
x 1 ; enjoyment of their property. - �/ l'i.
• ,�'. ='la"'-•'--..„,j 4 Section 2,oennitlnn5;a,•Airgun'shall mean any weapon that discharges a projedile'ordgslei of shot b);the°. ..y?�Q'•, !iii,: '' ~
•b •S�aa use of mechanical spring,compressed air or compressed gas and shall Include 88 andplillet.h11q,Valhi and rvolver,;' '�' -0-. ;
>-).it.CAj{O{y b. Firearm'shall mean any weapon that discharges a projectile or cluster of shot by Tha use 01 exploding gunpowder and •Yrly" • ''Q'ti+1 ` _
}kl'YYY/{ shall Include rifle.shotgun,pistol and revolver.; a. Predominantly Residential District'shall./lean a residentialaria pl.not 'h CAR 1.
less That Five(5)homes created and constructed in accordance with approval of the County Comrhi551on'er's'�itjrpuanl to,'the' ' ;'., ,.
Subdivision Ordinance of Durham County,a plat of which appears of record In the Office of The Register of.Oeeds o(Durham County.67shall include hie,
following named subdivisions:
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Section 3.Discharge of firearms within predominantly residential areas of Durham County prohibited;exceptions'4 shall be unlawful for any.person to discharge a firearm
within 600 feel of a residence located within a predominantly residential area of Durham County,except
a.When the firearm is discharged in the lawful defense of person or property,
b.when the,firearm is discharged by,or at the lawful direction of a law enforcement officer,or authorized mliiterjtpersonnel:: '
Section 4.Discharge of Airouns within predominantly residential areas of Durham County by minors restricted,Rrshall be luilaiy/ul jcr any pars under the age of sixteen V
. (16)years to discharge an airgun within 600 feet of a residence located within a predominantly realdenllal area 01 Durham County,unless allhe time of such discharge,the
minor is accompanied by a parent,guardian,or other eddil who acknowledges responsibility for the supervision of Neminor iR 01*agt or 000pling.; ,
• Section 5,Neafdent discharge of(rearms In Durham County outside of predominantly residential woes prohibited.It h II be.unlpw/N I r rsy person la discharges
!rearm or argon outside of a predominantly residential area of Durham County,
a.negligently,carelessly,or heedlessly In wanton disregard for The safety of others,or '
b without due caution or circumspeddon and in a manner so as to endanger any person or property,and/e ply g in property Vrfainag a or bodily injury,or ' i
o when the individual who discharges the firearm or airgun is under the Influence cl an impairing substance or does so.allehcogibrning sumclent alcohol-that-he has,at
• any relevant time alter the discharge of the firearm or airgun,an alcohol concentration of 0,08 or more. r 1 `
In any case where a violation of this act also constitutes a violation under Article 21B of Chapter 113 of the General Statutes',/hen'ti,e provisions of That Ankle are intended
to apply,to the violation. '
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Section 6.Penally for violation.Violation of this ordinance shall be a misdemeanor,punishable by a fine of not more Ih n 5000 oa'imp elor not m r Yhan 30 day's
as set forth in G,S,14.4,
Section 7.Effective dote,This ordinance shall be effective Seven i7)days after publication of the tiding of the sul3drvisions 11Guged j,arein,whdcF seidpubllcalian shall'be
certified to the Clerk To Inc Board by the County Adorney, -
For specific questions,or for more,informatilin,call the County Attorney"s'oflice'at'560=0706:• •
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