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Colmon S. Mitchell, Esq.

Office of the Attorney GeneralFebruary 3, 2015

2015 WL 1524052 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2013-00224
*1 February 3, 2015

Re: Municipal Authority Relating to Carrying of Weapons on Municipal Property

 
*1 Colmon S. Mitchell, Esq.
*1 Smith, Phillips, Mitchell, Scott & Nowak, LLP
*1 Post Office Drawer 1586
*1 Batesville, Mississippi 38606
Dear Mr. Mitchell:
*1 Attorney General Jim Hood has received your request for an official opinion and assigned it to me for research and response.
 
Issues Presented
 
*1 Your letter seeks the opinion of this office on the extent to which the City of Batesville (the “City”) may regulate the carrying of firearms on municipal property. You note that the City has specific concerns regarding: (1) Meeting of the Mayor and Board of Aldermen; (2) Public hearings; (3) Events on public streets and public square such as parades; (4) Events at the Batesville Civic Center when the Civic Center is leased to a private promoter including such things as a dirt bike race; (5) City employees, other than law enforcement, while engaged in their duties as employees.
 
Response and Legal Analysis
 
*1 This office discussed a municipality's authority to regulate carrying of weapons in MS AG Op. Trapp (Dec. 2, 2013)(copy attached). In Trapp, we opined that such authority is governed by Miss. Code Ann. Sections 45-9-51 and 45-9-53. Section 45-9-51 states that “[s]ubject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts ... the possession ... of firearms.” Section 45-9-53 authorizes limited regulations by a municipality as follows:
*1 (1) This section and Section 45-9-51 do not affect the authority that a county or municipality may have under another law:
 
* * * * *
 
*1 (f) To regulate the carrying of a firearm at: (i) a public park or at a public meeting of a county, municipality or other governmental body; (ii) a political rally, parade or official political meeting; or (iii) a nonfirearm-related school, college or professional athletic event;
*1 Based on these statutes, we opined in Trapp as follows:
*1 Our reading of these statutes is that a municipality may regulate, by ordinance, the carrying of any firearm, whether concealed or not, at only the locations or events identified in Section 45-9-53 if, as the statute notes, the municipality is authorized by “another law” to enact such an ordinance. Our research has found no law that expressly authorizes municipalities to regulate the carrying of a firearm. However, it is the opinion of this office that the Home Rule Statute, Miss. Code Ann. Section 21-17-5, provides such authority and would constitute “another law” as referenced in Section 45-9-53.
*1 Thus, it is the opinion of this office that a municipality could pass an ordinance or regulations prohibiting concealed carry under a regular carry permit or open carrying of weapons only at the following locations: (1) a public park or at a public meeting of the municipality or other municipal governmental body; (2) a political rally, parade or official political meeting; or (3) a nonfirearm-related school, college or professional athletic event.1
*2 We further opined in Trapp that:
*2 This opinion and a municipality's authority, however, are limited with regard to enhanced permit holders because such enhanced permit holders are expressly authorized via Section 97-7-7(2) and Section 45-9-101(13) to carry concealed pistols in a “meeting place” of a governmental entity or to a “non-firearm related school, college or professional athletic event.” Thus, a municipality could not prohibit enhanced permit holders from carrying in these locations by ordinance.
*2 MS AG Op. Trapp (Dec. 2, 2013). The Trapp opinion was issued before the passage of H.B. 314 in the 2014 Regular Session. There is a long-standing and inherent conflict between Section 97-37-7(2) and Section 45-9-53(1)(f). Section 45-9-53(1)(f) gives authority to municipalities to regulate open or concealed carrying of a firearm at “a public meeting of a county, municipality or other governmental body” and a [political] parade and “a nonfirearm-related school, college or professional athletic event.” On the other hand, Section 97-37-7(2), by reference to Section 45-9-101(13), allows an enhanced permit holder to carry in “any meeting place of the governing body of any governmental entity,” “any school, college or professional athletic event not related to firearms,” and “in a parade or demonstration for which a permit is required.” Thus, the two statutes are at odds with regard to where enhanced license holders can carry and where a city can regulate such carry.
*2 When Trapp was issued, we dealt with this conflict by applying the law as most recently enacted. Section 97-37-7-(2), as it relates to enhanced carry licenses, was the most recently enacted statute and specifically granted rights to enhanced permit holders. Applying interpretive rules and guidelines, this office concluded that the specific and more recently enacted provisions of Section 97-37-7(2) should be given precedence, and this office concluded that municipalities were precluded from prohibiting concealed carry by enhanced license holders at “a public meeting of a county, municipality or other governmental body” and a [political] parade and “a nonfirearm-related school, college or professional athletic event.” H.B. 314, however, amended Section 45-9-53 with specific reference to the authority of municipalities (and counties as well) regarding prohibiting the carry of firearms. Generally speaking, and in this regard, H.B. 314 modified Section 45-9-53 by setting up three identified groups of places in which municipalities could prohibit weapons by signage. Under the newly amended statute, municipalities can post signs and prohibit carry of weapons in (1) places identified in Section 45-9-53(1)(f) with no limiting language; (2) places identified in Section 45-9-101(13)2 if, in essence, the sign indicates that it is only applicable to regular concealed license holders; and (3) any place controlled by the municipality other than a place identified in Section 45-9-53(1)(f) or Section 45-9-101(13) if the sign indicates that it does not apply to regular concealed license holders, enhanced concealed license holders or a person otherwise lawfully and openly carrying a firearm. See Miss. Code Ann. Section 45-9-53(4), (4)(a) and 4(b). This office interprets the new grant of authority to municipalities to prohibit carry of weapons by signage in Section 45-9-53(1)(f) locations with no restricting language to mean that municipalities can restrict even enhanced concealed license holders from carrying in those locations. It is obvious by making distinctions between the types of signs required for (1)(f) locations and 101(13) locations, the Legislature intended for municipalities to have more authority in locations identified in (1)(f). To the extent that it is inconsistent or in conflict with this opinion, our opinion in MS AG Op. Trapp (Dec. 2, 2013) is hereby modified and withdrawn.
*3 Thus, consistent with our discussion above and the exceptions noted therein, the City could, by ordinance or regulation, prohibit the carrying of weapons, concealed or not, in meetings of the Board and Mayor or in public meetings of the City or one of its boards, commissions or other official entities including, without limitations, such entities as a zoning board. Whether or not the City could prevent weapons from being carried at events held on the public square or public street would depend on whether such events could be properly characterized as one of the locations listed in Section 45-9-53(1)(f)(ii) or (iii).3 Likewise, to the extent that such a function occurred on a “public park,” the City could regulate the carrying of weapons under Section 45-9-53(1)(f)(i).
*3 Your letter also asks whether the City can regulate the carrying of weapons at the City's Civic Center. We find no authority to regulate the carrying of weapons at the Civic Center unless the activity or event otherwise fits within the events described in Section 45-9-53(1)(f)(i). Your letter asks specifically regarding private events held at the Civic Center. In such cases, this office believes that the City could, as a condition of the lease agreement, require that the private lessee prohibit the carrying of weapons to the event.
*3 Additionally, the City could take the additional step of restricting the carrying of concealed weapons by concealed permit holders by posting signage consistent with the provisions of Section 45-9-101(13) and Section 45-9-53(4), (4)(a) and 4(b).4 The ability to post signs under Section 45-9-101(13) is, however, limited to concealed weapons. Under the newly amended Section 45-9-53(4), a municipality can prohibit, by posting signage, concealed carrying of weapons by regular or enhanced license holders in places identified in Section 45-9-53(1)(f). A municipality can prohibit, by posting signage, concealed carrying of weapons by regular license holders in places identified in Section 45-9-101(13). See Miss. Code Ann. Section 45-9-53(4)(a). Section 45-9-53(4)(b) provides very little authority to municipalities since it only applies to someone that is carrying a weapon illegally under another statute.5 However, because the signage allowed under Section 45-9-101(13) on its face applies only to concealed carry,6 a municipality wishing to restrict open carry in Section 45-9-53(1)(f) locations should pass an ordinance prohibiting open carry.
*3 When regulations or ordinances affecting open carrying of weapons are considered constitutional issues that arise by virtue of the Second Amendment to the United States Constitution must be addressed. In Trapp, we discussed this issue as follows:
*3 [A]ny municipal ordinance that regulates the open carry of weapons in the places enumerated in Section 45-9-53[1](f) must meet constitutional muster. While many courts have considered restrictions on concealed carry of firearms to be either presumptively valid or not involving constitutional protections granted under the Second Amendment to the United States Constitution, a ban on the open carry of firearms at least potentially impinges on rights granted under both Article 3, Section 12 of the Mississippi Constitution and the Second Amendment. In MS AG Op. Lance (June 13, 2013), this office opined on the factors that must be considered in determining whether open carry of weapons can be restricted on public property. In Lance, we noted that each individual property and restriction or regulation must be considered on a case-by-case basis in light of both Mississippi state law and federal constitutional law. With regard to this aspect of the applicable law, we refer you to the Lance opinion as our best analysis on that topic.
 
Conclusion
 
*4 To summarize, it is the opinion of this office that a municipality may regulate either open or concealed carrying of weapons only in those places authorized under Section 45-9-53. Any regulations or ordinances on open carrying of weapons would have to meet federal constitutional muster. Additionally, a municipality is authorized to utilize the signage requirements set forth in Section 45-9-101(13) subject to the restrictions and specified limiting language as set out in Section 45-9-53(4), (4)(a) and (4)(b).
Sincerely,
*4 Jim Hood
*4 Attorney General
*4 By: Ricky G. Luke
*4 Assistant Attorney General

Footnotes

The City could, of course, enforce any restrictions placed on the carrying of weapons imposed by State law.
Section 45-9-53 is internally inconsistent, because there is some overlap between Section 45-5-53(1)(f) and Section 45-9-101(13). Thus, the statute facially places two different signage requirements on the same places that are listed in both statutes.
These include “(ii) a political rally, parade or official political meeting; or (iii) a nonfirearm-related school, college or professional athletic event.”
The Legislature in the 2014 Regular Session passed H.B. 314 which was signed into law by the Governor and became effective July 1, 2014. H.B. 314 amended Section 45-9-53 to expressly restrict municipalities and counties from using the signage provisions of Section 45-9-101(13) except as provided in the amended Section 45-9-53. Under the amended version of Section 45-9-53 and after July 1, 2014, municipalities and counties may not “use the written notice provisions of Section 45-9-101(13) to prohibit firearms on property under their control except in the locations listed in subsection (1)(f)” of Section 45-9-53. A county or municipality may post signs “[a]t a location listed in Section 45-9-101(13)” if the sign indicates that “a license issued under Section 45-9-101 does not authorize the holder to carry a firearm into that location.” However, the sign must also indicate that “carrying a firearm is unauthorized only for license holders without a training endorsement or that it is a location included in Section 310 97-37-7(2) where carrying a firearm is unauthorized for all 311 license holders.” A county or municipality may also post a sign “[a]t any location under the control of the county or municipality aside from a location listed in subsection (1)(f) of this section or Section 45-9-101(13) indicating that the possession of a firearm is prohibited on the premises, as long as the sign also indicates that it does not apply to a person properly licensed under Section 45-9-101 or Section 97-37-7(2) to carry a concealed firearm or to a person lawfully carrying a firearm that is not concealed.” Thus, with regard to locations other than those listed in Section 45-9-53(1)(f), it appears that a county or municipality can only post signs prohibiting carrying of weapons by individuals who are otherwise illegally carrying either a concealed or openly carried weapon.
Examples would include convicted felon, minors in some instances and persons carrying concealed without a license.
Section 45-9-101(13) states in relevant part: “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.” Miss. Code Ann. Section 45-9-101 (as amended)(emphasis added).
2015 WL 1524052 (Miss.A.G.)
End of Document