Unenforceable Austin gun ordinances

[Bithabus]

I'm an original Austinite ... I should be exempted on the grounds of not being from some communist shithole.

LOL...

Preemption would have taken care of most of this but they fucked up and put "adopt" where they should have put "enforce".

 

[Texas1911]

LOL...

Preemption would have taken care of most of this but they fucked up and put "adopt" where they should have put "enforce".

I love how one word pretty much just screws the pooch.

 

[Bithabus]

I really thought we had preemption too. This sucks.

Maybe it is retroactive?

 

[Texas1911]

I really thought we had preemption too. This sucks.

Maybe it is retroactive?

I've always been told and understood that we have preemption. I'm not sure of the retroactive status of the law, but I can say that any existing laws could be easily challenged and rectified under that directive.

 

[Bithabus]

Found this in an AG opinion. The Austin ordinance is not legally enforceable.

The provision, now in Local Government Code section 215.001, that a "municipality may not adopt regulations relating to the . . . ownership [or] keeping . . . of firearms," was first adopted in 1985. Acts 1985, 69th Leg., ch. 838, section 1, at 2904. It must be presumed that in enacting the provisions of section 215.001 the legislature was aware of the scope state court and attorney general opinions had theretofore given to the term "municipality" -- specifically that the term included a municipal housing authority, the latter being a "division" of a municipality. We find no state statute, in chapter 392 or elsewhere, evidencing a legislative intent that municipal housing authorities not be subject to the prohibition in section 215.001. (footnote 5)

 

[Texas1911]

Cool deal.

 

[Randman]

So, basically, it's not whats enforceable that is the issue...It's the fact that the tards enforcing the unenforceable that you have to deal with, and then prove that what they are enforcing is unenforceable....Right?

 

[MR Redneck]

I would like to know who is suppose to enforce Preemption Law.
I have contacted Greg Abbott's office several times about this but all I get is some worm on the phone. Everytime I make it very clear that I want someone with a clue to call be back so we can discuss this.
All I hear is " Sir have you tried to contact the District Attorney's office"!! Yes I have and I find them as offensive as the Attorney Generals office, I explain.

Who is it the is suppose to enforce Preemption Law? If it's Abbott, then we need to vote him out of office!

 

[txinvestigator]

You would not be arrested under 30.05 for carrying a handgun into the Austin City building mentioned in the OP. 30.05 now specifically excludes applicability to CHL holders. 30.06 is not applicable to

On the issue of city ordinances; If a town has a law that is in conflict with the preemption law of Texas, then any arrest or citation could be fought at the local level on the basis of that preemption law. Even if you were convicted, it is a "fine only" offense, and you could then appeal to the county court level and receive a new trial where it should be easy to defeat.

 

[Bithabus]

You would not be arrested under 30.05 for carrying a handgun into the Austin City building mentioned in the OP. 30.05 now specifically excludes applicability to CHL holders.

Last time I looked the CHL is a defense to prosecution not an exception. But people get arrested for COV all the time.

On the issue of city ordinances; If a town has a law that is in conflict with the preemption law of Texas, then any arrest or citation could be fought at the local level on the basis of that preemption law. Even if you were convicted, it is a "fine only" offense, and you could then appeal to the county court level and receive a new trial where it should be easy to defeat.

Not nearly good enough. There should be zero chance any citizen can be harassed or arrested for violating an ordinance which is itself in violation of State law.

 

[Bithabus]

So, basically, it's not whats enforceable that is the issue...It's the fact that the tards enforcing the unenforceable that you have to deal with, and then prove that what they are enforcing is unenforceable....Right?

Exactly.

 

[txinvestigator]

Last time I looked the CHL is a defense to prosecution not an exception. But people get arrested for COV all the time.

That is correct, it is a defense. One could be arrested, but it is unlikely. Probably if LE told you to leave with the handgun and you refused.

Not nearly good enough. There should be zero chance any citizen can be harassed or arrested for violating an ordinance which is itself in violation of State law.

I agree 100% There should be a process where the state (or even a citizen) can sue the towns to have the ordinances removed. Perhaps there is, but if so, I am not aware of it.

 

[Bithabus]

That is correct, it is a defense. One could be arrested, but it is unlikely. Probably if LE told you to leave with the handgun and you refused.

Or, one could be arrested for the COV.

I agree 100% There should be a process where the state (or even a citizen) can sue the towns to have the ordinances removed. Perhaps there is, but if so, I am not aware of it.

Me neither. Might be a standing issue. If I were ever arrested for an unenforceable COV I would certainly sue the city.

 

[txinvestigator]

Or, one could be arrested for the COV.

I missed it; In Austin, what COV violation are you referring?

Me neither. Might be a standing issue. If I were ever arrested for an unenforceable COV I would certainly sue the city.

Yep. My question is could the city be sued BEFORE an arrest?

 

[Bithabus]

I missed it; In Austin, what COV violation are you referring?

§ 9-6-2 FIREARMS PROHIBITED ON CITY PREMISES.

Except as provided in Sections 9-6-4 (Exception for Peace or Security Officers, or Retired Officers), 9-6-5 (Exception for Gun Shows), and 9-6-6 (Exception for Shipping at Airport), a person may not enter or remain on City premises if the person is carrying a concealed or unconcealed firearm.
Source: 1992 Code Section 10-9-2(A); Ord. 031023-13; Ord. 031211-11; Ord. 050303-17.

Yep. My question is could the city be sued BEFORE an arrest?

I'd like to know the answer to that question. In my opinion this should be the responsibility of the AG but he doesn't seem to care.

 

[M. Sage]

Interesting. Ordinances already on the books before preemption, are still enforceable? That would be a horrible mistake of wording the preemption legislation.

Nope. Ex post facto applies. If they did it before it was illegal, it stands.

 

[M. Sage]

I missed it; In Austin, what COV violation are you referring?


Yep. My question is could the city be sued BEFORE an arrest?

From my somewhat limited knowledge - yes. But only if this ordinance affected you in some negative way.

Fun fact - in a case like this, you win and the city has to pay all costs.