Update #2: New Ordinance Information Published

As of this afternoon, the new ordinance is being made publicly available for review before the board meeting on October 15th.  The new ordinance is available here in its entirety for download if you’d like to read it yourself. 

My thoughts:

My unhappiness surrounding the original ordinance stemmed from its lack of “teeth” or the ability to really achieve much if violated besides assessing a fine. That assumption came from multiple conversations I had with county personnel regarding what the board has the power to do and what they were planning to do with this ordinance. The board of commissioners can’t simply create criminal statutes at their pleasure, but given the power of certain state statutes, they sometimes do this if the topic falls under certain categories as deemed by the state. 

What they have fleshed out and delivered for public comment isn’t perfect in my opinion, but it does go a long way towards effecting some much-needed leverage towards keeping people safe without really restricting the gun rights of “normal” people.

Let’s break this down section by section and I’ll share my opinion on each wherever relevant. Comments from me will appear in a gray box, and look like this.

Section 1 Title

This Ordinance shall be known and cited as the “Stanly County Firearm Safety Ordinance” (hereinafter referred to as the “Ordinance”).

Section 2 Purpose

The purpose of this Ordinance is to implement standards for the discharge of firearms that may cause injury or death to persons or damage to real or personal property, whereas preserving the
personal freedom to engage in such activities, while promoting the public health, safety, welfare, comfort and prosperity of the citizens of Stanly County.

Section 3 Authority and Enactment

The Stanly County Board of Commissioners (hereinafter referred to as “Board”), pursuant to the authority conferred by the North Carolina General Assembly in the North Carolina General Statutes, Chapter 153A-129, hereby ordains and enacts into law this ordinance.

NCGS 153A-129 is the section of code that allows the county to enact certain firearms laws as long as they apply them in a certain manner.

Section 4 Jurisdiction

Under the authority granted by North Carolina General Statute 153A-122, the County is hereby authorized to enact this Ordinance in the unincorporated areas of the county outside and beyond the corporate limits of any municipality in Stanly County.

NCGS 153A-122 is the section of code that allows them to make ordinances affecting the county, outside of city limits. They can apply it to all parts of a county or just certain areas at their discretion.

Section 5 Severability

If any section, specific provision, or standard of this Ordinance is found by a court to be invalid, the decision of the court shall not affect the validity of any other section, provision, or standard of this Ordinance.

This is standard boilerplate that means if someone argues successfully that one part of it isn’t enforceable, then the remaining parts are.

Section 6 Conflicts with Other Laws

It is not intended that this Ordinance repeal, abrogate, annul, impair or interfere with any existing provisions of any other ordinances or laws. However, if the requirements of any other applicable local, state or federal rules, regulations, ordinances statutes or laws conflict with this Ordinance, the more restrictive or that imposing the higher standards will govern.

I like this addition. Let’s use a gun crime for example; if for some reason this ordinance resulted in the arrest of someone for discharging a firearm and causing another criminal offense already on the books that has a higher penalty, this ordinance would simply get out of the way and the stronger law and penalty would take precedence.

Example: Carelessly discharging a firearm led to a bullet knocking a hole in someone’s new truck –  This ordinance has less penalties than damage to personal property when it’s valued high enough to be considered a felony, so that penalty would take effect instead (if I’m reading this correctly.)

Section 7 Amendment

This Ordinance may be amended from time to time by the Board on its own motion after public notice and hearing.

This is something I was really waiting to see. If they enacted this ordinance, what would prevent them from simply changing it down the road on their own? This stipulates that it has to come up for public comment first (so it can’t be snuck in anymore than any other change can) and the public would have a chance to levy their opinions for or against a proposed change. I think that should be a requirement for this kind of ordinance, and it is in this case.

Section 8 Definition

Firearm
A handgun, shotgun, rifle, cannon or any device which is capable of  expelling a projectile using an explosive charge as a propellant.

It might sound like a waste to describe what they consider a firearm, but it’s very important to clarify what they are applying this ordinance to. The restriction of using an explosive charge as a propellant means it doesn’t apply to bb guns (as that is a compressed charge of air, not a result of a primer and powder) and it doesn’t apply to any kind of bow. This strictly applies to  pistols, revolvers, rifles, and shotguns, but also leaves room for wiggling for people that craft something from scratch that’s not conventional. If you make some sort of launcher that uses an explosive charge (picture a home-made uber-spud-gun) it would fall under the purview of this ordinance.

Section 9 Firearm Restrictions

1. It shall be unlawful for an person to discharge a firearm:

• a. Without taking reasonable care to ensure that a projectile does not cross onto the property of another without the written consent of the owner, lessee, or possessor of the property; or
• b. Without taking reasonable care and in a manner so as to endanger any person or property resulting in the unlawful property damage or bodily injury of another; or
• c. When discharged on, from, or across the traveled portion of any public street or highway

Originally I was against the wording that included “reasonable” in the definition because I think law enforcement should be required to enact laws, not determine their applicability towards a certain instance in their own mind. That usually results in lawsuits down the road and/or puts law enforcement in untenable positions when I feel they should have had clear guidance. I’ll use speeding as an example. His radar says you were doing 68 mph. There’s no deciding whether or not you were speeding. He has all the facts he needs to write the citation without having to decide himself or herself if you were actually speeding in his/her opinion.

However, I’ve looked at other county ordinances of a similar nature (Harnett County and Lenoir County both have firearms ordinances as well) and I’ve come to accept that some interpretation of the applicability of the law simply has to be made by the person in the moment.  They use terms such as “carelessly” or “recklessly” which also require the officer to make that determination themselves on-scene. Since I don’t have a better solution to the conundrum myself, I’m choosing to forego my previous stance and just accept that this is the best way it can be worded to achieve the desired results.

I still don’t necessarily see the reason for the last one, but that same condition is present in other county’s ordinances and I can’t see where its overly restrictive for the common person out enjoying a day of target shooting. NC Hunting law already covers that for hunting, so this would apply to recreational shooting only.

Section 10 Exceptions

Subsection 9.1 shall not apply to any discharge of a firearm:

1. Made in lawful defense of person or property; or
2. By a law enforcement officer, made in the lawful performance of his or her duty; or
3. When used to take birds or animals pursuant Chapter 113 of the North Carolina General Statutes
4. When used pursuant to lawful directions of a law enforcement officer

Section 11 Violations and Penalty

Each violation of this Ordinance shall constitute a Class 3 misdemeanor and any person convicted of the same shall be fined not more than two hundred ($200) dollars and/or imprisonment not exceeding twenty (20) days. A violation of this Ordinance may be enforced by an appropriate,
equitable remedy, including injunction and an order of the abatement issued from a court of competent jurisdiction in accordance with North Carolina General Statute 153A-123.

A Class 3 misdemeanor is about the least serious type of crime you can commit in North Carolina. It carries a maximum of 20 days in jail, and a maximum of a $200 fine. It’s basically the same as possession of marijuana. I’d personally like to see the penalty be higher, but there are probably reasons they selected this category of misdemeanor. There might even be restrictions I’m not aware of as to why it can’t be a Class 2. A Class 2 could carry up to 60 days in jail and a $1,000 maximum fine.

It also says “each” violation. I’d like to see it clarified that if you an officer arrives to enforce this and determines multiple offenses, that it could be multiple infractions of the ordinance. 

Example: The person is shooting through the woods and bullets land in one person’s yard. While continuing to shoot bullets land in someone else’s yard. That should be clearly explained that the ordinance could be enforced twice in that scenario. It would be up to the board to determine if they wanted to enforce each charge as a a maximum allowable penalty ($100 for the violation, $250 for the second) or if they wanted to show leniency to an honest lapse in otherwise-good judgement and only charge $100 for each).

NCGS 153A-123 is the statute that allows a county goverment to apply penalties in this instance, and provides for them to provide civil processes to collect that penalty, and to escalate it to a court proceeding or criminal proceeding if the situation warrants it or escalates to that level. 

Furthermore, the County is authorized to assess civil penalties for violations of this Ordinance. The County may attempt to collect any assessed civil penalty that is not paid within 20 days of its issuance via the filing of a civil action and/or the use of a collection agency to the extent permitted by applicable law(s). Civil penalties shall be assessed on per person, per occurrence basis as follows:

• 1st Offense $100.00
• 2nd Offense $250.00
• 3rd or More Offenses $500.00

The issuance of civil penalties may be appealed by the violator in writing. The notice of appeal must be addressed to Stanly County, Attention: County Manager, 1000 North First Street, Suite 10, Albemarle, NC 28001 and postmarked or personally delivered within five (5) days of receipt of the notice of civil penalty. Appeals of civil penalties shall be heard within ten (10) business days of receipt of the notice of appeal, unless a continuance is mutually agreed upon. The appeal hearing shall be held by the County Manager or his/her designee. All testimony offered in a hearing held pursuant to this Article shall be given under oath and recorded by tape recording or any other reasonable manner. The hearing shall be open to the public. The person requesting the hearing may be represented by an attorney. The County shall have the burden of proving that this Ordinance has been violated and that the proposed sanction is in accordance with the Ordinance. The person requesting the hearing will then be given the opportunity to prove that this Ordinance has not been violated and/or that the sanction is not in compliance with the Ordinance. The person requesting the hearing may admit the violation and confine his/her proof to showing that the sanction is not in accordance with the Ordinance. The County Manager or his/her designee will render a written notice of decision to appellant. If the penalty is upheld, the appellant will have twenty (20) days to pay any fines or fees before collection efforts are initiated. The appellant may further appeal the decision of the County Manager or his/her designee to Stanly County Superior Court within ten (10) days of the service of the notice of decision.

I called the County Manager to ask about this portion and from what I can tell, this is pretty standard practice. Ideally, we don’t want the Board of Commissioners throwing special meetings every time some ordinance violation comes up. Instead, any appeals and paperwork will go through the county manager’s office who will gather information from law enforcement, probably the county attorney’s office, and make his determination on whether the violation was valid or not.

The appeal process is clearly laid out, reasonably easy to accomplish, and I don’t see where it applies undue burden to someone seeking to challenge the ordinance.  Any requested hearing would be public, which I think is good. And if the appeal is denied, the appellant would have 20 more days to satisfy the county in terms of fines and penalties before any court action would be initiated. Overall I think it’s a good and effective plan for how to handle any violations.

Section 12 Effective Date

This Ordinance shall take effect and be in force upon adoption.

This basically states that if they vote to make this an active ordinance on October 15th, they can start enforcing it same-day. Personally, I’m in agreement with that part. If it’s an ordinance we need, there’s no sense in delaying enforcing it.

Additional information:

So – there you have my analysis of the proposed ordinance in general. In terms of general applicability and my fears of trampling on the rights of gun owners, I don’t think this ordinance poses any threat. However, how you discharge those firearms can and should be a matter for the courts to decide. The issue in Stanly County is that there are plenty of instances where neighbors have called law enforcement to try to stop people from shooting on or at their property in a careless manner and are met with no results they can measure. The Sheriff’s deputy comes by, leaves, and the shooting continues.

This ordinance gives the deputy the ability to act if he or she determines the shooting IS careless or DOES endanger someone’s life or property, and it doesn’t result in someone coming to take your guns away from you. If you cause a scene about it, sure, you can be arrested on the spot, but if you handle the matter like an adult the worst you’re going to get is a $100 civil penalty and the opportunity to prove that you weren’t in violation anyway. 

The rights of the citizens to feel safe in their homes has a new tool to employ AND nothing in this has anything to do with confiscating firearms or restricting rights – unless you think that right to shoot across a street is something you’re supposed to have anyway – which I guess I could argue either way for or against…

Timing isn’t good:

In truth, the timing on this ordinance isn’t good. You’re talking about enacting firearms legislation (which people will read as “gun control” no matter what you say to the contrary) 12 days before rifle hunting season opens up, and 22 days or so before the general election in November. 

No politician in their right mind wants to have this discussion until after November, myself included. Doing it in December just isn’t going to happen.. that would be a horribly stupid decision. You want to put this kind of legislation before a BRAND NEW board of commissioners on what is already their longest and most stressful meeting of the year? Nope. Not gonna happen. That means the best we can hope for (in my opinion) is to table it and bring it back up in January or February.

Politically, this isn’t a good time for this ordinance to rear its head in a meeting for other reasons as well.  I can’t blame commissioner Morgan for wanting to get this on the table for discussion now when at least he knows the playing field but I think it’s a bad time to bring it up. He’s under pressure I’m sure to bring it to the board so people know he’s doing something, but I just don’t think it’s quite ready yet.

There are wrinkles to be ironed out still

As the ordinance stands now, there are still a few issues that need clarifying. 

County Liability:
This is going factor in so you might as well prepare for it. It has to.  I can’t take credit for this. Someone else brought up the scenario but its perfectly plausible.  Let’s use an example:

A deputy responds to an address where someone says people are shooting unsafely. He arrives, talks to the party doing the shooting, and determines in his best estimate that no one is breaking the ordinance. He leaves the premises. Ten minutes later, someone calls 911 because someone was shot. It happens to be the same people that were shooting previously that caused the injury.

Will the victim, or family thereof, now turn around and sue the county? Absolutely they would. Any attorney they talk to is going to tell them to. Can they bring charges against the deputy? I don’t know. Can they bring charges against the county? Absolutely. Will they win? Probably. The county’s ordinance said it was fine. Ten minutes later, someone got shot. There’s no way that doesn’t go down as a lawsuit against the county that the county would probably lose. 

So what we’re asking the county to do is now to draft an ordinance AND be subject to lawsuits they most likely can’t win. Would you do that in their shoes? I don’t know. One layperson’s  point of view might be to simply give a citation every single time it happens to avoid that possibility. Well, now you ARE going to start to tick off the gun-toting republicans in the county when you start citing everyone every time whether you think they needed it or not simply because you don’t want to be held liable. Do you see the issues this creates at the county level?

Does it work?

There are other counties that have ordinances similar to this one in place. As of now, no evidence has been gathered by our county officials as to whether these counties have ever had these ordinances challenged, or whether they’ve prosecuted them successfully. That’s a discussion that needs to happen but can’t happen before Monday.  It CAN happen before January, but not in the next 72 hours. That information, in my opinion, should be factored in by the commissioners when considering this ordinance.

Law Enforcement Involvement

Law Enforcement needs to be brought into the loop. This needs to be a discussion with the Sheriff’s office. There’s no sense bringing it up to the current Sheriff because he’s basically checked out of service, and he won’t be the one responsible for responding to these calls by the time this comes into effect. You can’t have the conversation with Jeff Crisco’s office yet because it won’t be his office until after December either. 

I know for a fact the new Sheriff hasn’t been consulted because he didn’t hear anything about it until he heard it from me personally. So that discussion needs to happen and it needs to be with the board, the Sheriff, the county manager, and the county attorney. None of that can even occur until December at the absolute earliest, so bringing this up for vote now is a mistake.

The absolute BEST thing that can happen Monday is for the board to vote to table the topic for a later meeting after hearing public comments. I think the chance to hear what the public feels about it NOW and then having time to talk to law enforcement and other county governments would be a very useful strategy for our Board of Commissioners to adopt next week.

The WORST thing that could happen is for it to be forced to a vote. As it stands now, there’s no way it passes. No one on the board, except maybe commissioner Morgan who feels passionately about this, is going to want to double-down on this without those unanswered questions having been cleared up. If it gets pushed for an up/down vote, the vote will almost 100% be NO. Then it will have a stigma attached to it when it comes up again later. 

If you agree to table it and gather more information, that sounds smart. If you absolutely vote it down and then someone bring it back around for a vote later, the psychology is already working against the ordinance. It was shot down before, so it should be shot down now. I think this ordinance deserves a fair shake, but Monday’s meeting isn’t likely to result in any positive movement if it comes up for a vote. 

But.. all of this is just my conjecture and my two cents. You should evaluate the ordinance yourself, determine whether you support it or not, and if possible – share your thoughts below in the comments section.

I CAN say this much, and I feel I owe it to the readers to do so:

I was originally FIRMLY against this bill. I called half the board of commissioners, law enforcement, the county manager, the county attorney, and two people from the district attorney’s office to talk them “out of this nonsense.”  I later made a rather long and scathing post dissecting the bill line by line, which was easy at the time because the bill was about three lines long rather than three pages long as it is now. (You can’t find that scathing article because you’re reading the page it was previously on).

I will never know if the changes made to this proposed ordinance, or the flushing out and clarifying of issues in the final product, are related to my phone calls or my article – and that’s OK with me. The final result is what matters. The final result I see before me today, as a voter and someone that will be at that public meeting next week, is something that comes close to the heart of an issue that IS causing some trouble here in the county.

We DO have places, specifically over in the Millingport area, where careless and reckless shooting continue to cause problems – even half a year after the same kind of shooting in the same place took the life of Dwight Almond.

Is this bill meant to specifically target that occurrence? Absolutely. To say anything otherwise would simply be lying. We ARE considering this bill county-wide specifically to solve a problem in one area of the county. But that’s not to say that the issue doesn’t crop up in other areas less reported or less headline-worthy. It took Dwight Almond getting shot in the head while sitting in his garage to get this to the table. The idea behind its creation is that maybe it will stop that from happening to someone else by giving law enforcement one more tool to use to stop gun crimes due to negligence.

If this comes back up before the board during my tenure, I wouldn’t immediately vote it down. I’m still not 100% sure I’d support it without having the advantage of being a commissioner and having the leverage to ask tough questions about it that I don’t have the leverage to ask now, but I can certainly see where, depending on those answers, I COULD get behind it and support it.

Come be part of the process

The board of commissioners meeting to address this ordinance will be Monday October 15th at 6 PM at the usual board meeting place. This is going to be open for public comment, so if you have something to say – come and be heard. I’ll see ya there!