Memorandum

City of Lawrence

City Attorney’s Office

TO:	David L. Corliss, City Manager
FROM:	Maria Kaminska
DATE: CC:	May 14, 2014 Toni Wheeler, City Attorney
RE:	House Bill No. 2578

Background

House Bill No. 2578 was signed into law by Governor Brownback on April 23, 2014. The Bill, which makes several significant restrictions on municipalities in their regulation of knives and guns, will become law on July 1. Staff has reviewed which City ordinances are affected by this Bill, and provides recommendations on addressing the changes locally below. Note, however, that the Bill does not affect the four-year exemption currently in place for the buildings listed in the Resolution adopted in December. That exemption allows certain buildings to continue their ban on concealed carry, and will continue until January 2018.  (see attached summary)

Knives

The Bill expands last year's legislation prohibiting municipalities from merely enacting new laws concerning knives, and preempts the field of knives regulation. The Bill:

• Amends K.S.A. 2013 Supp. 12-16,134 and prohibits cities from not only enacting, but also enforcing, any ordinance relating to the transportation, possession, carrying, sale, transfer, purchase, gift, devise, licensing, registration, or use of a knife or knife making components. This essentially nullifies all City ordinances concerning knives.

• Prohibits cities from enacting or enforcing local laws relating to the manufacturing of knives, if they are more restrictive than other laws concerning the manufacturing of any other commercial good.

• Prohibits any person from being prosecuted under a municipal knives or knives-making components ordinance between July 1, 2013 and July 1, 2014. If a person has been arrested for or prosecuted for a municipal knives violation between those two dates, they may petition the municipal court for an expungement and the court must grant it.

The Bill's prohibition against cities adopting or enforcing any regulation related to knives compels us to look at the two knives ordinances the City currently has in place. But because cities may no longer enforce regulations concerning knives, staff recommends repealing the following two ordinances entirely rather than proposing amendments to them.

The first knives regulation is found under City of Lawrence, Kan., Code § 14-406 (July 1, 2013) (carrying concealed weapons). It states:

It shall be unlawful for an individual to carry concealed on his or her person, or possess with intent to use the same unlawfully against another, a dagger, dirk, billy, blackjack, slungshot, dangerous knife, straight-edged razor, stiletto or any other dangerous or deadly weapon or instrument of like character, except that an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument. (emphasis added).

Compare this to the state statute over criminal use of weapons, which has also been amended. It states that it is unlawful to possess with intent to use certain weapons, including daggers, dirks, billys, blackjacks, slungshots, dangerous knives, straight-edged razors, stilettos, or any other dangerous or deadly weapon or instrument of like character. The state’s language concerning possession with intent to use a knife is different from the City’s prohibition against merely carrying a knife. 

The second place in which the City Code addresses knives is under City of Lawrence, Kan., Code § 14-408 (July 1, 2013) (carrying weapons near a bar). It states, in relevant part:

It shall be unlawful for any person to possess a dangerous knife within a

drinking establishment.

“Dangerous knife” means every knife or straight razor except for:

(a) An ordinary folding pocket knife with a blade no longer than 4 inches in length.

(b) Knives provided by the drinking establishment for use by patrons for the purpose of dining.

(c) Knives possessed by the employees and owners of the drinking establishment, or those contracted by such owners or employees to perform work within the drinking establishment, when such knives are used within the drinking establishment as tools for food preparation, maintenance, or some other business purpose.

(d) Knives and straight razors possessed by individuals who may lawfully carry such items  concealed on their person pursuant to K.S.A. 21-6301(a)1-8, and amendments thereto . . .

The City Commission considered last year’s legislative amendment prohibiting cities from merely enacting new rules over knives, and whether to amend the City’s regulations to allow citizens to carry knives in public places. The City Commission unanimously opposed amending the City Code. (Minutes, City Commission Meeting May 28, 2013). It was later the opinion of the City Attorney’s Office that the 2013 change only affected future ordinances and prohibited cities from enacting new laws, but that current laws in place before July 1, 2013 could still be valid. House Bill 2578 closes that loophole.

Firearms

The Bill makes several notable changes to the regulation of firearms. The Bill:

• Prohibits cities from adopting or enforcing any ordinances governing the purchase, transfer, ownership, storage, carrying or transporting of firearms or ammunitions.

• Prohibits cities from adopting or enforcing any ordinances relating to the sale of a firearm by someone who has a federal firearms license if the ordinance is more restrictive than any other ordinance relating to the sale of any other commercial good.

• Removes the City’s ability to regulate the manner of openly carrying loaded firearms. Currently, cities may not prohibit open carry, but may regulate the manner in which the firearm is carried. For example, they may require that the gun be carried in a holster with the safety lock turned on. The Bill removes this ability to regulate.

• Prohibits the unconcealed carry of firearms inside buildings that have clearly posted signage prohibiting it, though a violator is only subject to removal or denial from the premises and cannot be charged with a criminal violation.

• States that a municipal employer cannot ask an employee whether they possess a valid concealed carry permit, and states that no city may create or maintain a system that records whether an employee does in fact have a valid concealed carry license. If a municipal employer collected this information previously, the records must be destroyed before July 1, 2014. Cities are also prohibited from discriminating against an employee if they refuse to disclose that they have a valid concealed carry license.

• Permits cities to adopt ordinances or regulations relating to personnel policies and the carrying of firearms so long as they are in compliance with House Bill 2578 and the Personal & Family Protection Act.

• Relieves municipalities of liability from any wrongful acts or omissions relating to any person's carrying of a firearm.

• Prohibits the possession of a loaded firearm while under the influence of alcohol, drugs, or both. Law enforcement officers enforcing this rule may seek a blood draw to confirm intoxication.

• Amends criminal possession of a firearm to criminal possession of a weapon, so that a felon carrying a firearm or knife can be charged.

• Prohibits cities from using tax money to implement, administer, or operate a firearms buyback program. Currently, there is no such program in Lawrence, so this section would not affect any City operations.

• Adopts language and definitions from federal law and requires the chief law enforcement officer to grant certification of a firearms transfer within 15 days of application. Denial of the application cannot be based on the chief's belief that the firearm has no lawful purpose or that the person receiving the firearm should not have possession. Appeal procedures following a denial are also provided.

• Amends provisions for the forfeiture and seizure of firearms.

City ordinances affected by the new firearms legislation include the two previously mentioned under knives: carrying concealed weapons and carrying weapons near a bar.

Carrying concealed weapons under 4-406 states that it is unlawful to "carry any pistol, revolver or other firearm concealed on his or her person except when he or she is on the person's land or in the person's abode or fixed place of business," with some exceptions. Further, 4-408 states that it is unlawful to "possess a firearm within a drinking establishment or on publicly accessible property in close proximity to the premises of any drinking establishment." Staff recommends repealing both of these regulations to be consistent with the new state law.

Another City ordinance, 14-407 concerning unlawful discharge of a firearm, prohibits persons from recklessly discharging a firearm within or into the corporate limits of the City. Although this ordinance relates to firearms, it does not need to be repealed because it does not relate to the "purchase, transfer, ownership, storage, carrying, or transporting of firearms or ammunition" as prescribed by the new Bill. The ordinance only prohibits recklessly discharging the firearm, but does not prohibit a person from carrying it like the previously mentioned regulations.

Staff also recommends posting signs prohibiting open carry, if the City Commission determines it does not want anyone openly carrying firearms inside City buildings. The signage currently on City buildings – as provided by the Kansas Attorney General last year – prohibits concealed carry only.

Staff Recommendation

Staff recommends repealing City of Lawrence, Kan., Code § 14-406 (July 1, 2013) (carrying concealed weapons) and City of Lawrence, Kan., Code § 14-408 (July 1, 2013) (carrying weapons near a bar).

Action Requested

Direct staff to prepare ordinance(s) to conform City Code provisions related to guns and knives to HB 2578, if appropriate.