Wednesday, May 25, 2011

Illegal ordinances

Having read Robb's post I am jealous of Florida.  Their new, revamped state preemption law actually has teeth should government officials choose to ignore it.

To quote Robb,

"Now that their pocketbooks and their own asses are on the line, look for more and more of these laws to magically disappear."

Some of you might remember this post. Well if we want to get into the technicalities of it, I was "breaking the law."  New Castle County has an ordinance on the books prohibiting the carrying of firearms in county parks.  Carousel Park where I OC'd that weekend is a county park.  Technically, since there's an ordinance on the books saying carry is prohibited I was breaking the law.

The County ordinance states,

No person shall carry a knife upon his or her person having a blade three (3) inches or longer in length or have possession of or discharge a BB gun, air rifle, pistol, firearm, paint ball gun, bow and arrow or any other type of lethal weapon in any park.
(Ord. No. 98-050, § 1(24-14), (5-26-1998)

The ordinance in question is outright illegal. It was passed in 1998. The State AG's office knows it is illegal and could not charge anyone arrested under it. The NCC County Council knows it is illegal.  How do I know this?  Because they have been contacted by Delaware Open Carry regarding it and acknowledged, in writing, that their County law violates State law. That was over three years ago*, yet the statute is still on the books. They have been contacted again but have yet to respond. The state of Delaware passed statewide preemption on July 4th,1985.  Any local firearms law enacted after preemption was passed is illegal and unenforceable.  In fact, the reason permitless open carry is banned in the capital of Dover is because the city ordinance predates the state preemption statute.

There's the rub though.  The ordinance is illegal, those in County government know it is illegal and those who would charge me under it know it can't be enforced.  Still, having it on the books leaves me and every single Delaware citizen who OC's in county parks open to arrest.

Apparently this is a problem in PA as well and as Sebastian notes,

" I never recommended people obey these ordinances, because hey are illegal."

Well, I wasn't obeying the illegal county parks ordinance, however my "lawbreaking" wasn't intentional.  I simply assumed that the matter had been resolved.  Silly me, I should've assumed that those who work for us would simply break the law and ignore us.  It's a little disconcerting given the contents of the most recent letter sent to county council states that the NCC Police know the ordinance is illegal yet have been instructed to arrest anyone open carrying.  It's almost as if some in Delaware law enforcement want to emulate Philly cops.

* I can't seem to find the original letter sent to Tackett back in 2008, so a DELOC press release will have to do.

No comments: