Memorandum

City of Lawrence

Legal Services

 

TO:

David L. Corliss, Assistant City Manager & Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

February 8, 2006

 

RE:

Ordinance 7976:  Amendment to City Code Section 14-408 – Weapons Near Drinking Establishments

 

BACKGROUND

 

Section 14-408 of the City Code was originally adopted in 1984.  That code section prohibits possession of firearms, knives with blades of greater than three inches, and other deadly weapons within close proximity to a business which serves alcoholic liquor or cereal malt beverage.

 

In January, 2006 the Police Department requested a review of the ordinance to make it more specific in its prohibitions.  Under the existing ordinance, the term “close proximity” is not specifically defined.  Revision of this ordinance was of immediate concern due to the number of handguns observed near drinking establishments in the downtown area.  

 

Firearm violence is a complex issue that will not be completely solved by enacting this or any other ordinance.  Improving this ordinance in the manner suggested by the amendments will give the Police Department a tool to decrease the amount of firearms in the areas likely frequented by bar patrons.

 

Although the amended version of the ordinance concentrates primarily on firearms, it also prohibits the possession of dangerous knives on the premises of drinking establishments.  In addition to this ordinance, the possession of certain knives and other deadly weapons is controlled by other provisions of the City Code and Kansas statutes.  The operation of Section 14-406 of the City Code makes it illegal to carry certain types of concealed knives and other deadly weapons.  K.S.A. 21-4201 prohibits individuals from both carrying concealed deadly weapons, including dangerous knives, and also from possessing them with intent to use them unlawfully against another person.  Pursuant to Kansas law, an ordinary pocket knife with a blade of less than 4 inches is not construed to be a dangerous knife.

 

FIREARM REGULATION IN OTHER CITIES

 

A review of ordinances of several other Kansas cities did not reveal any other cities that had prohibitions on firearm possession based upon distance from drinking establishments.  The cities’ approach to firearm regulation varies widely.  Many cities have no prohibition on firearms possession beyond the dictates of the Kansas Statutes, which only regulate concealed firearms possession in most instances.  Other cities, for example Wichita and Topeka, have much wider ranging limitations on the public possession of firearms.  In Wichita it is illegal in most circumstances to carry loaded firearms even if they are not concealed.  Further, it is generally illegal to carry a loaded firearm in a vehicle and even unloaded firearms in vehicles must be within a container that completely encloses the firearm.  In Topeka, it is prohibited for most people to carry or have in their immediate control in a public place loaded firearms or automatic firearms even if they are unloaded if the person possessing them also possesses a loaded magazine.  The power to adopt reasonable police power regulations dealing with firearms possession is within the home rule powers of Kansas cities.  See Junction City v. Lee, 216 Kan. 495 (1975).

 

INTERACTION WITH PROPOSED CONCEALED CARRY LEGISLATION

 

At the time of this writing, Senate Bill 418 is pending in the Kansas Legislature.  That bill would allow citizens to obtain licenses to carry concealed firearms.  The proposed amendments to our ordinance exempt from its provisions those people who are legally entitled to carry concealed firearms in the places where those people are lawfully allowed to carry the firearms.  Under Section 10 of Senate Bill 418 as it is currently drafted, the license to carry concealed firearms would not extend to drinking establishments that are not restaurants.  Drinking establishments qualify as restaurants if they derive 30% or more of their revenue from food sales.  In addition, individual property owners are able to ban firearms from their premises under the proposed bill.

 

Therefore, a person with a concealed carry permit would not be subject to the “close proximity” restrictions under the ordinance, and would be allowed to carry a concealed firearm in a restaurant that served alcoholic beverages, but the ordinance would still apply to such a person if he or she possesses a firearm within a non-restaurant drinking establishment.  In any event, it should be noted that the proposed bill makes it a crime for a person licensed under its provisions to carry a concealed weapon while under the influence of alcohol or drugs.

 

AMENDMENTS TO EXISTING ORDINANCE

 

The amended ordinance prohibits the possession of firearms within drinking establishments or on publicly accessible property within close proximity to drinking establishments.  It also prohibits the possession of dangerous knives within those drinking establishments.  Drinking establishments are places where alcoholic liquor is sold by the drink.

 

The term “close proximity” as used in the ordinance generally means areas within 200 feet of a drinking establishment.  In order avoid the need for an overly technical enforcement mechanism, however, if any part of an unimproved lot, parking garage, park or parking lot is within 200 feet then all of the contiguous area of that unimproved lot, parking garage, park or parking lot is considered to be in close proximity to the drinking establishment.  Therefore, if a firearm is possessed anywhere in that contiguous area, exact measurements do not need to be taken to the specific area where the firearm is possessed. 

 

Possession under the ordinance includes actual or constructive possession.  This means that the ordinance treats firearms within the prohibited area in the same manner that other contraband is treated.  Under the common interpretation of possession, the ordinance would not only extend to items possessed on the person but also those stored in a vehicle or somewhere else within the regulated area.

 

The ordinance applies to any property accessible to the general public.  This includes the areas mentioned in the previous paragraph as well as streets, sidewalks, trails and the like.  Property not held open to the general public such as private residential property would not be covered by the provisions of the ordinance.

 

Further, the provisions of the ordinance do not apply to:

 

1.      Business owners and their employees while they are on the premises of their fixed place of business.  This ensures that businesses are not treated differently based upon their proximity to a drinking establishment.

2.      Law enforcement officers and others allowed by law to carry concealed firearms in the areas that they are permitted by law to carry concealed firearms.

3.      Members of the United States Armed Forces or Kansas National Guard during the actual performance of their duties.

4.      Unloaded firearms possessed within a vehicle so long as the firearm is in a container that completely encloses the firearm.  This exception is mandated by a change to Kansas law last legislative session which declares ordinances that are more restrictive in this regard to be without effect.

5.      An unloaded firearm possessed by an individual who does not also possess ammunition for the firearm in clips, magazines, speed loaders or other devices allowing the firearm to be loaded quickly, but not if the individual is within a drinking establishment.

6.      Individuals whose residence is within close proximity to the area where the firearm is possessed, unless they are within a drinking establishment.  Once again, this ensures the ordinance does not deprive one area’s residents of privileges possessed by individuals who reside elsewhere in the City merely because those residents live close to a drinking establishment.  If the person is actually within the drinking establishment, however, this exception does not apply.

7.      Firearms that may not be lawfully possessed.  This exception makes certain that individuals who possess a firearm that, exclusive of this ordinance, may not be legally possessed by them are punished under the more general provision of the law that makes that possession illegal.  This guarantees the ordinance does not lessen their punishment for such possession.

8.      Firearms that only incidentally pass through an area regulated by the ordinance.  Under the ordinance, a firearm incidentally passes through a regulated area if the possessor does not voluntarily interrupt his or her continuous travel through the regulated area.  Merely stopping for a traffic light or stop sign does not constitute an interruption of travel under this exception.  The purpose of the exception is to allow people to use the City streets to transport a firearm without worrying about whether they pass through a regulated area, provided that they do not stop in the regulated area.

 

In addition to the regulation of firearms, the ordinance also prohibits the possession of most knives or straight razors within drinking establishments.  The possession of these items is only regulated within the drinking establishment, as opposed to within and within close proximity to the drinking establishment.  The knives that are allowed are:

 

1.      Ordinary folding pocket knives with blades less than 4 inches in length.  These knives are exempted from concealed carry limitations by K.S.A. 21-4201.

2.      Knives provided by the drinking establishment for use by patrons for the purpose of dining.

3.      Knives possessed by owners, employees or contractors of a drinking establishment for the purposes of food preparation, maintenance or some other business purpose within the establishments.

4.      Items possessed by individuals entitled to carry them concealed under Kansas law. 

 

PENALTY

 

The penalty for violating the ordinance is a fine of no more than $2500 or one year in jail or both.  This is equivalent to a class A misdemeanor under Kansas law, and is the penalty established by K.S.A. 21-4201 for criminal use of weapons.

 

CONCLUSION

 

The provisions of the amended ordinance attempt to improve the current City Code section by providing more definite standards of conduct.   Consistent with the intent of the current ordinance, I believe that it can be an important tool to help prevent firearm violence near drinking establishments by patrons of those establishments.  I would be glad to assist you with any questions or concerns that you might have.