Sean Tindell, Esq.
Office of the Attorney GeneralSeptember 18, 2014
2014 WL 5350502 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2014-00328
*1 September 18, 2014
Re: City of Diamondhead Proposed Firearm/deadly Weapon Ordinance
*1 Sean Tindell, Esq.
*1 Tindell Law Firm, PLLC
*1 2200 25th Avenue
*1 Gulfport, MS 39501-4520
Dear Mr. Tindell:
*1 Attorney General Jim Hood has received your request for an official opinion and assigned it to me for research and response.
Facts and Issues Presented
*1 Your letter states that the City of Diamondhead (the “City”) received an ““opinion”1 from Deputy Attorney General Whitley in which she determined that the City's prior firearm/deadly weapon ordinance violated Section 45-9-53. The Deputy Attorney General's letter was issued pursuant to the statutory duty to investigate citizens' complaints regarding non-compliant firearm signs and ordinances placed on this office by the recent amendments to Section 45-9-53. See H.B. 314 (2014 Reg. Sess.). The purpose of such letters or notices is to provide the conclusions and findings of this office regarding whether a violation exists2 and to allow local governments an opportunity to cure any violations prior to a citizen bringing suit. In response to Deputy Attorney General Whitley's letter, the City rescinded its prior ordinance. Your letter attaches a proposed new ordinance and asks the following questions:
*1 (1) Does the proposed Ordinance satisfy or meet the requirements of Mississippi Law; and
*1 (2) If, not, what changes should be made to satisfy and cure any deficiencies.
Response and Legal Analysis
*1 As a general matter, response to your initial question would require that we interpret the ordinance to determine how the ordinance would be applied and perhaps to determine the intent or meaning of the ordinance. Our office has repeatedly opined that “[w]ith respect to the application of the provisions of ... municipal ordinance[s], we generally do not by official opinion interpret municipal ordinances, which are best interpreted by the governing authority.” MS AG Op. Stuart (March 21, 2014). Because “we cannot possibly anticipate each factual scenario in which enforcement of the ordinance might be attempted,” we are limited to a more general discussion of the general scope of permissible regulation. See MS AG Op. Trapp (Dec. 2, 2013)(Declining to interpret and pass on enforceability of a gun ordinance).3
*1 In general the City's Ordinance addresses firearm restrictions in two methods. First, the ordinance sets forth that the City Manager is to “ensure that written notice” is posted as set forth in Sections 45-9-53(a) and (b) “in which the carrying of a concealed firearm or other deadly weapon is prohibited.” The ordinance does not specify which municipal properties fit within the two subsections nor does it specify the sign and wording to be used with regard to these locations. We can offer no opinion beyond the obvious that if the requirements of Sections 45-9-53(a) and (b) are met, no violations would occur.
*2 However, neither the ordinance nor this opinion would shield the City from liability if a sign were, in spite of the ordinance, posted in violation of the law.
*2 The second prohibition in the ordinance is contained in Article I which states:
*2 The open carrying of any firearm or deadly weapon by any person, except any duly authorized law enforcement officer, is strictly prohibited at: (i) public parks; (ii) public meetings of any governmental body, including but not limited to, council meetings, municipal court proceedings and planning and zoning meetings; (iii) political rallies; (iv) parades; or (v) nonfirearm-related school, college, or professional athletic events. (emphasis added).
*2 Section 45-9-53 authorizes municipalities:
*2 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;
*2 The ordinance is broader in its application than the statute granting the City firearm regulatory authority. Specifically, the ordinance purports to criminalize the open carrying of a firearm into municipal court proceedings. It is the opinion of this office that a court proceeding does not constitute a ““meeting” of a municipal body or “other governmental body.” Although governmental body is not defined for purposes of Section 45-9-53, we believe the definitions given to “meeting” and “public body” used in the Open Meetings Law provide the best analogous references to draw from. Section 25-41-3 states, in relevant part:
*2 For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:
*2 (a) “Public body” means any executive or administrative board, commission, authority, council, department, agency, bureau or any other policy-making entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether such entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature. The term “public body” includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board. There shall be exempted from the provisions of this chapter:
*2 (I) The judiciary, including all jury deliberations;
*****
*2 (b) “Meeting” means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power; “meeting” also means any such assemblage through the use of video or teleconference devices.
*2 (Emphasis added). Applying the Open Meetings Law, its definitions and its exclusions of courts from the meaning of public body to Section 45-9-53 leads this office to conclude that when the Legislature authorized municipalities to regulate firearms “at a public meeting of a county, municipality or other governmental body,” that authority was not extended to municipal courts. We believe this conclusion is supported by the manner in which the Legislature chose to restrict the rights of regular concealed permit holders in Section 45-9-101(13). There, the Legislature specifically included restrictions on “any courthouse,” “any courtroom” and “any meeting place of the governing body of any governmental entity.” The Legislature could have used similar words with a specific reference to courts when granting regulatory authority to municipalities and counties but did not. Accordingly, it is the opinion of this office that municipalities are not authorized to pass ordinances restricting the carrying of firearms in courtrooms.
*3 The Legislature's restrictions on the ability of municipalities and counties to regulate carrying of firearms appear to be an express intention to reserve such regulatory authority to the Legislature and to require local governments to rely solely on State statutes in this regard. If it appeared that authority to regulate firearms in courts was a Legislative oversight or that this lack of authority was due to mistake, this office might take a different interpretive approach. However, there are numerous other sensitive areas in which the Legislature has likewise withheld regulatory authority from cities and counties. For example Section 45-9-53 does not authorize local government regulations over firearms in places of nuisance as defined in Section 95-3-1, police stations, sheriff offices, detention facilities or prisons. Given that the Legislature did not authorize local governments to regulate in these sensitive places and facilities, we believe that the lack of reference to courthouses or courtrooms in Section 45-9-53 was by design and not through any error.
*3 Thus, with regard to restriction of firearms in courthouses and other sensitive places, it is our opinion that counties and municipalities are relegated to reliance on State statutes. We are aware that this leaves apparent gaps in the ability to regulate the carrying of firearms openly in certain places. State law restricts the rights of regular license holders to carry weapons in the specified places by virtue of Section 45-9- 101(13). However, those restrictions only apply to concealed carry by license holders. Even the signage language of this Section applies only to the carrying of “a stun gun, concealed pistol or revolver.” Both Section 97-37-7 and Section 45-9-101(13) limit the rights of license holders to carry certain firearms in “any place of nuisance as defined in Section 95-3-1, any police, sheriff or highway patrol station or any detention facility, prison or jail.” However, neither of these provisions address the open carrying of firearms in these places. Section 97-37-1 is the general criminal statute (to which the licensing statutes are exceptions) regarding carrying of weapons. However, this section applies only to carrying a specified weapons “concealed on or about one's person,” and thus, this section has no applicability to open carry.
*3 Section 97-37-5 restricts the right of a felon to possess “any firearm” which would include an openly carried weapon. Section 97-37-14 provides that it shall be “an act of delinquency for any person who has not attained the age of eighteen (18) years knowingly to have any handgun in such person's possession” and would accordingly restrict such person's right of open carry. Section 97-37-17 makes it a 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.” These appear to be the only legislative restrictions applying, in whole or part, to the open carrying of weapons. While we understand the desire of local governments to apply limitations beyond these areas, we can find no legislative grant of authority to do so.
*4 For the reasons stated above, we believe that the proposed ordinance is beyond the authority of a municipality to enact an ordinance restricting the possession of a firearm. The ordinance includes municipal courts, which in the opinion of this office, are not included in the enumerated places listed in Section 45-9-53(f). With regard to posting of signs, the City should ensure that any locations where signs are posted are properly characterized as places identified in Sections 45-9-53 (a) and (b) and that any such signs include the proper restricting language as required in the statute.
*4 We note for your information that the “WHEREAS” clause discussing Section 45-9-101(13) incorrectly states that the Section prohibits the carrying of “any firearm.” Section 45-9-101(13) restricts the carrying of concealed stun guns, pistols and revolvers by license holders. It does not address the carrying of other firearms. Additionally, the ordinance prohibits the open carrying of deadly weapons other than firearms. It is our opinion that the part of the ordinance is facially valid. Section 45-951 restricts the right of local governments to “adopt any ordinance that restricts the possession, carrying, transportation, sale, transfer or ownership of firearms or ammunition or their components.” Section 45-9-53 provides exceptions to Section 459-51. However, neither statute has any application to deadly weapons other than firearms.
Conclusion
*4 It is the opinion of this office that the proposed ordinance violates Section 45-9-53(1)(f) in that it attempts to regulate the possession of firearms in municipal court and is beyond the scope of the City's authority. With regard to the application of the ordinance to deadly weapons other than firearms, it is generally within the regulatory authority of a municipality. Since a conclusive opinion regarding the enforceability of the ordinance would require us to interpret and apply the ordinance, such an opinion is beyond the scope of an official opinion issued pursuant to Section 7-5-25. Likewise, we cannot, by official opinion, specify how the ordinance should be drafted to comply with State law.
*4 If this office can be of further assistance, do not hesitate to contact us.
Footnotes
The “opinion” was issued pursuant to Section 45-9-53 and is characterized by that statute as a “notice” of violations. See fn. 2, infra.
The statutory framework of Section 45-9-53 does not indicate that a finding by this office of a violation, vel non, has any binding effect on a court or the parties. Our understanding is that notice by this office is a predicate to a suit in a vein similar to a right-to-sue letter issued by the EEOC.
We note that we perceive this office's authority regarding official opinions issued pursuant to Section 7-5-25 and reports or notices issued in response to complaints under Section 45-9-53 to be different. Under Section 7-5-25 our opinions are offered to provide limited immunity to prospective acts and are limited to questions involving the determination solely of questions of state law. In regard to official opinions, we do not perform any factual investigations or make determinations on questions of fact, and instead we rely on the facts as represented in the request. To interpret and apply a municipal ordinance, we would be required to go beyond these limits and make determinations that were factual in nature or that involved mixed questions of law and fact. With regard to Section 45-9-53, the Legislature expressly mandated that this office conduct factual investigations regarding alleged violations of firearm laws and issue “notice” of the “findings” made based off of the evidentiary materials included with the complaint and learned through the required investigation. Thus, the report or opinion issued by this office in response to a complaint under Section 45-9-53 could, and most likely would, contain factual conclusions and findings that this office could not make in an official opinion under Section 7-5-25. Likewise, this office could be required to interpret and apply a municipal ordinance under Section 459-53 which would be improper if done pursuant to an official opinion request under Section 7-5-25.
2014 WL 5350502 (Miss.A.G.)
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