Office of the Attorney GeneralOctober 23, 2013
2013 WL 5975601 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2013-00215
*1 October 23, 2013
Re: Application of Open Carry Laws to Mississippi Fair Commission and Department of Agriculture Properties
*1 Cindy Hyde-Smith
*1 Commissioner of Agriculture & Commerce
*1 121 North Jefferson Street
*1 Jackson, MS 39201
*1 Attorney General Hood is in receipt of your request for an official opinion and has assigned it to me for reply.
*1 Your letter requests our office's opinion on the following issues:
*1 In light of recent amendments to Miss. Code Ann. Section 97-37-1 (House Bill 2, 2013 Regular Session), can the MFC and the Department prohibit the carrying of weapons, concealed or not concealed, on the Mississippi State Fairgrounds Complex and at properties of the Department, including but not limited to the Mississippi Farmers' Market and the Mississippi Agriculture & Forestry Museum, by posting signage prohibiting the carrying of a weapon?
*1 We understand that the Mississippi Fair Commission (“MFC”) and Department of Agriculture Properties (“Department”) do not intend to prohibit concealed carry by those individuals with enhanced concealed weapons permits, and accordingly, this opinion does not address that issue.1
Legal Analysis and Discussion
A. Concealed Carry
*1 With regard to concealed weapons,2 your question is readily answerable by reference to Miss. Code Ann. Section 45-9-101(13) which states in relevant part:
*1 In addition to the places enumerated in this subsection, the carrying of a stun gun, concealed pistol or revolver may be disallowed in any place in the discretion of the person or entity exercising control over the physical location of such place by the placing of a written notice clearly readable at a distance of not less than ten (10) feet that the “carrying of a pistol or revolver is prohibited.”
*1 It is the opinion of this office that MFC and the Department can disallow the carry of concealed weapons by concealed permit holders by following the notice provisions of Section 45-9-101(13). Thus, with regard to regular concealed carry permit holders, a public body can prohibit the concealed carrying of weapons in all locations by posting the signage referenced in Section 45-9-101, other signage that provides actual notice or otherwise providing actual notice to individuals. We note that disregard of such a sign or other notice would not be a concealed-weapons violation.3 Rather, depending on the facts, disregard of the sign could constitute a violation of Section 97-17-97 (trespass after warning), Section 97-17-93 (entry without permission) or other statutes.4
B. Open Carry
*1 With regard to open carry on state property, that issue was recently addressed in our opinion, MS AG Op. Lance, June 13, 2013. In Lance, we noted that whether or not the open carrying of weapons on public property can be prohibited is a two-prong inquiry based first on state law authority and second on whether such a prohibition would violate the Second Amendment to the United States Constitution. With regard to state law authority, the Lance Opinion stated:
*2 Custodians or owners of public property generally have the authority and duty, express or necessarily implied, to manage that property in the public interest. This often includes the authority to deny entry to the property, to place conditions upon entry onto the publicly-owned property, and to otherwise regulate and govern that property short of enforcing the state criminal laws. For example, a municipality may prohibit smoking in the city hall and a public library may prohibit loud speech. These activities are perfectly legal, but the municipality and the state library have the statutory authority to prohibit them and to exclude persons who do not comply. See, Bigham v. Huffman, 199 WL 33537149 (N.D. Miss. 1999)(Criminal trespass laws applied to public property). The authority of state or local officials to govern and manage government property may be separate and apart from any power to enact police-power ordinances or regulations having criminal or misdemeanor penalties.
*2 Unlike private property owners, however, the authority of custodians of public property to disallow a lawful activity on land controlled by them requires a case-by-case analysis of the authority of the public body or official under state law.
*2 MS AG Op. Lance at p. 6. We have previously opined that “the Legislature has given full authority to regulate the State Fairgrounds to the Mississippi Fair Commission under Section 69-5-3, Mississippi Code of 1972.” MS AG Op. White (June 2, 2006). Likewise, responsibility for operations of the Mississippi Agricultural and Forestry Museum is vested in the Department. Miss. Code Ann. Section 69-1-203. Based on this authority and our Lance Opinion, it is our opinion that the Department and MFC are respectively authorized by statute to regulate the open carry of weapons on a person onto properties such as the Mississippi Farmer's Market, the Mississippi Agriculture and Forestry Museum the Mississippi State Fairgrounds Complex5 if the responsible entity determines that such a prohibition is necessary to secure the properties and to ensure the safety of the public.
*2 With regard to prohibitions against carrying a weapon passing federal constitutional muster, this office in the Lance Opinion discussed the applicable federal law.6 In Lance, we noted that the federal courts have recognized certain areas as sensitive areas in which prohibitions against firearms will be upheld. Included as sensitive places in the federal case law are locations such as schools and government buildings. Whether the places you describe are “sensitive places” as described by the United States Supreme Court is a determination which must be made by the state agency having control of the property.
*2 As we stated in the Lance opinion, a state agency should be able to articulate the government interest being served by such a ban, and why the ban is a reasonable means to achieve that interest. Any regulation adopted by a state agency which restricts open firearm possession on state property should be supported by such findings, preferably placed in the administrative record. In your case, the following factors may be appropriate to consider in making your determination: the nature of the functions at the locations identified in your letter; the potential for hundreds and in some cases thousands of patrons, including children, to be on site; the presence of armed as well as mounted law enforcement officers; the general need to protect the safety of those on public property, the presence and nature of controlled access points to the area, etc. See United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011)(finding that a parking lot on a National Parkway was a sensitive area in sustaining a federal regulation banning loaded - but not unloaded - firearms in vehicles).
*3 You also ask our opinion about other procedures that might be deemed to be random searches of individuals entering the gates at the State Fairgrounds Complex. This issue is only answerable by reference to federal law and cases construing the Fourth Amendment to the United States Constitution. Accordingly a full discussion of federal constitutional requirements is beyond the scope of this opinion and could only be effectively completed upon fully discussing the searches and search protocol proposed by the MFC, the factors concerning necessity and so forth. Our office is available to assist the MFC and Department in any efforts it may undertake to implement a search or controlled access protocol for the State Fairgrounds Complex and to analyze the issues both under state and federal law.
*3 Based on the foregoing discussion, it is the opinion of this office that the Department and MFC can restrict the concealed carrying of weapons by regular permit holders by posting the statutorily authorized signage, other signage that provides actual notice or otherwise providing actual notice to persons entering onto the subject properties.
This office's opinion with regard to restrictions and the validity of posting signage restricting the concealed carrying of weapons by enhanced permits holders is set forth in MS AG Op. Cantrell (Oct. 1, 2013) at p. 6. In Cantrell we noted that schools could not post signs to prevent enhanced permit holders from carrying concealed weapons in areas generally open to the public because schools are locations in which enhanced permit holders are specifically authorized by statute to carry. We note that the Fair Grounds and grounds operated by the Department are not locations on which enhanced permit holders are specifically authorized to carry in Section 45-9-101(13)
A license to carry a concealed weapon under Mississippi law applies only to the carry of “stun guns, concealed pistols or revolvers.” See Miss. Code Ann. Section 45-9-101. Section 97-37-1 provides criminal penalties for carrying of a weapon concealed “except as otherwise provided in Section 45-9-101.” Thus, the authority of public body to generally prohibit the carrying of concealed weapons, other than stun guns and concealed pistols or revolvers remains rooted in Section 97-37-1. Thus, when discussing the carrying of concealed weapons in this opinion, the use of the word weapon(s) relates to stun guns, pistols or revolvers.
However, Section 45-9-101 does not authorize a regular concealed permit holder to carry in the following locations:
“any police, sheriff or highway patrol station; any detention facility, prison or jail; any courthouse; any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in his courtroom; any polling place; any meeting place of the governing body of any governmental entity; any meeting of the Legislature or a committee thereof; any school, college or professional athletic event not related to firearms; any portion of an establishment, licensed to dispense alcoholic beverages for consumption on the premises, that is primarily devoted to dispensing alcoholic beverages; any portion of an establishment in which beer or light wine is consumed on the premises, that is primarily devoted to such purpose; any elementary or secondary school facility; any junior college, community college, college or university facility unless for the purpose of participating in any authorized firearms-related activity; inside the passenger terminal of any airport, except that no person shall be prohibited from carrying any legal firearm into the terminal if the firearm is encased for shipment, for purposes of checking such firearm as baggage to be lawfully transported on any aircraft; any church or other place of worship; or any place where the carrying of firearms is prohibited by federal law.”
Thus, a regular concealed carry permit holder would violate Section 97-37-1 by carrying a concealed weapon into these listed locations.
Our prior opinions to Johnson dated August 21, 2011 and to Bounds dated January 5, 2012 assumed that property owners could trigger criminal penalties under Section 97-37-1 for regular permit holders by posting the statutory sign referenced in Section 45-9-101. We, however, now modify our opinion to state that that a concealed carry permit holder would not violate Section 97-37-1 by carrying a concealed weapon merely because a sign prohibiting weapons is posted. Our prior opinions are hereby modified in accordance with this opinion.
Your opinion request asked for our opinion on areas “including but not limited” to these three specifically identified areas. We do not know what properties would be listed on a full listing of properties owned or controlled by the Department and MFC and cannot opine as to any other locations other than those specifically identified.
For a full discussion of the federal law issues, see the Lance Opinion at pp. 7-9, a copy of which is attached hereto.
2013 WL 5975601 (Miss.A.G.)
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