Limerick Township Violates Preemption!?

[danp]

Originally Posted by GunLawyer001

...

GunLawyer,
First off thanks a million for taking the time to provide us with this information. Even though it is not what we were thinking I'm sure we're all extremely happy to have someone (with experience) provide a legal viewpoint to all of this.

I do have one question however.

What prevents a locality from simply claiming that their entire town/city/etc is private property and banning guns on all of their private property?

I don't mean to make the issue more complicated than it is but it's my understanding that in most states (including PA) even a homeowner doesn't actually own the land itself and it is in fact owned by the government, they just give you permission to build/live on it.

[ChamberedRound]

GunLawyer001,

Wow! We finally got some real, official advice on this issue! Thank you, as I know that you probably charge a lot of money for such advice.

I understand everything you've discussed here, and outside of making this a Civil Rights issue, it seems like we may have little recourse. However, if you can clarify something, I'd appreciate it:

It has always been my understanding that public property is just that, public. Isn't that property owned by the people? It is my understanding that a Town Council is essentially elected administrators, and as such are not property owners. So how do they have the right to treat public property as private?

[exceltoexcel]

Somehow the true basis of the problem has been forgoten.

They passed a criminal law, its clearly stated that they can't do that.

(a) General rule. No county, municipality, or township may in any manner regulate the lawful ownership, possession, transfer, or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth

It doesn't provide for an exception for limerick private property.

Sure you can argue that a rule is fine but a criminal law?

Even with the private property argument "in any manner" is pretty clear language.

Besides if I put a sign on my door stateing no guns, the only thing I can do as a private property owner is ask you to leave, if you don't then I can go fro trespassing.

I can't throw you in jail and fine you $600, once the town does that they are taking a public role on "private property", they can't have their cake and eat it too. Either they consider it private property, not subject ot special laws, or public property where they can wage special criminal charges. Still the wording "in any manner" tells me they flat out can't pass anything regarding firearms.

[billamj]

Excel - Could you please post the full text of the rules/regulations? If it is just a rule, that is one thing, if they are actually saying we will fine you it is a horse of a different color. I think that everyone can agree with that. Even me!

[exceltoexcel]

Sure I'll look it up.

[exceltoexcel]

ARTICLE I Rules and Regulations [Adopted 3-21-2000 by Ord. No. 209]
§ 114-1. Definitions.

As used in this article, the following terms shall have the meanings indicated: MOTOR VEHICLE — Any type of mechanical device propelled by a motor, in which persons or property may be transported upon public streets or highways, and including trailers or semi-trailers pulled thereby.

PARKLANDS — Tracts of real property owned or acquired by the Township for public use, including, but not limited to, playgrounds, ball fields, picnic grounds, equestrian trails, walking/jogging trails, other recreational areas and facilities, and open space areas maintained in their natural state.

RECREATIONAL VEHICLE — Any type of mechanical device propelled by a motor that is not intended or registered to be utilized on the public streets or highways. Recreational vehicles shall include, but not be limited to, any mini-bike, dirt bike, go-cart, motorized three-wheeler or four-wheeler, motor bike, snowmobile or other all-terrain vehicle.



§ 114-2. Rules and regulations established.

The following rules and regulations apply to all parklands owned or acquire by Limerick Township: A. The parklands will be open from sunrise until sunset. No person or persons shall be allowed in the parklands between the hours of sunset and sunrise, except by permit issued by Limerick Township.
B. Persons shall enter and leave parklands by the entrance and exit provided for that purpose.
C. Vehicles. (1) All vehicles must be parked on paved areas or designated parking areas. Vehicles shall be parked in the parklands only while occupants of the vehicle are using the parklands. Overnight and long-term parking is prohibited without permit issued by Limerick Township.
(2) No unlicensed vehicle shall be permitted within the parklands at any time.
(3) No vehicles shall be used on any roadway or section of the parklands except as designated for such purposes.
(4) No person may operate any recreational vehicle within the parklands.
(5) The washing, maintenance or repair of any vehicle is prohibited within the parklands.

D. Intoxicating beverages shall not be sold, distributed or consumed in any parklands.
E. Firearms or other weapons are prohibited.
F. Fires shall be permitted only in designated areas where fire grills or stoves are provided by the Township. Fires must be completely extinguished before leaving the site.
G. Activities, sports or games shall take place only in areas designated by the Township for such.
H. There shall be no swimming or scuba diving in the parklands. Overnight camping is allowed only by permit issued by the Township.
I. There shall be no playing or practicing of golf, except in areas specifically provided for such purpose. The practice of golf is prohibited while fields within the parklands are in use. In no case shall the practice of golf be permitted on any playing field.
J. Archery and hunting, by any means, is prohibited in the parklands, except during a regulated hunt as permitted by the Township and Pennsylvania Game Commission.
K. It shall be unlawful for any person to bring a pet animal in or upon the park lands unless such person keeps the animal, at all times, firmly secured by means of a collar and leash or other device so that the animal cannot stray beyond the control of the owner or person who has control of the animal. Any person bringing a pet animal in or upon the parklands shall immediately remove any animal's ordure, coprolite and excreta and dispose of the same at such person's residence. No animals of any kind are permitted in any playground areas at any time.
L. Horses are permitted only in designated equestrian areas.
M. Ball playing, including, but not limited to, baseball, softball, whiffle ball, football, soccer, rugby, or any other activity similar thereto, is prohibited in the following areas of the parklands: (1) The playground areas;
(2) Any picnic area;
(3) Any memorial area; and
(4) Any road, drive or parking area.

N. No person or group may make any improvements or alterations, perform any maintenance, construct any improvements, or place any equipment upon the parklands without first obtaining the written consent of the Board of Supervisors.


§ 114-3. Trespassing on adjacent lands prohibited.

There shall be no trespassing on adjacent lands of residents, nor any harassment of the owners thereof.

§ 114-4. Enforcement.

Limerick Township shall exercise general supervision over persons occupying or using the parklands and over the care, maintenance and replacement of Township property and equipment in the parks and keep such property and equipment in a clean and sanitary condition. In addition, the Limerick Township Police Department is authorized to enforce the provisions of this article.

§ 114-5. Fees.

Fees for the use of the facilities within the Township parklands shall be established and revised, from time to time, by the Board of Supervisors upon the recommendation of the Limerick Township Park and Recreation Committee. All donations received and/or fees collected for the use of the Township parklands, or any part or facility thereof, shall be collected by the Township and applied solely to the Township Parks and Recreation/Open Space Fund.

§ 114-6. Additional rules.

The Limerick Township Parks and Recreation Committee shall have the right to promulgate regulations, from time to time, not inconsistent with the rules set forth in this article. Such regulations shall be effective upon approval and adoption by the Board of Supervisors.

§ 114-7. Violations and penalties.

Any person violating the provisions of this article shall, upon conviction thereof, pay a fine not to exceed $600 and costs of prosecution and, in default of payment thereof, shall undergo imprisonment for not more than 30 days. All prosecutions for violations of this article shall be brought in the name of Limerick Township. All fines shall be paid to the Township and shall be applied solely to the Limerick Township Parks and Recreation/Open Space Fund. Every day a violation of this article continues shall constitute a separate offense.
Last time I checked, private property rights don't include me being able to imprison someone for violating a "rule" of my house, only gives me the right to ask them to leave, nothing more.


§ 114-8. Posting of regulations.

The Township Secretary shall prepare, or cause to be prepared, a summary of the provisions contained in this article and shall post, or cause to be posted, said summary at each of the Township parklands.

§ 114-9. Use of parklands by groups. A. The use of the Township parklands, or any portion or facilities thereof, by organizations or other groups of 10 of more persons shall be scheduled in advance at the Township Office, in accordance with Subsection H below.
B. No individual or group may reserve the exclusive use of any portion of the Township parklands or facilities for any period in excess of two years in advance.
C. Long-term reservations for use of portions of or facilities of the parklands will be accepted and granted in accordance with these regulations; provided, however, that one field of each type at each park shall always be open and available for nonreserved use.
D. The first preference for use of all parklands shall be granted to Township-sponsored events and such Township events shall supersede the use of the parklands or any part or facilities thereof granted to any other person or group.
E. Second preference for use of the parklands shall be granted to the Spring-Ford Regional Recreation Commission, subject to the regulations set forth herein limiting times and dates of use by reservation holders.
F. Any person or group wishing to reserve a portion of or a facility within the parklands for any period less than seven days in a calendar year shall apply to the Township for a permit before occupancy. Application for such permit must be made at least 10 business days prior to the time the person or group desires to occupy the park. The person or group must also pay the scheduled reservation fees as established and revised from time to time pursuant to these regulations.
G. Requests for exclusive and/or reserved use of portions of or facilities within the parklands for any period exceeding seven days in one calendar year ("long-term reservation") must be made in writing, on forms provided by the Township. The Township shall solicit long-term reservation requests by publication, once in a newspaper of general circulation, on or before January 7 of each year. The deadline for submission of long-term reservation requests shall be February 7 of each year. All requests shall be reviewed by the Limerick Township Park and Recreation Committee, which shall formulate a proposed schedule of reserved uses of the parkland facilities in accordance with such long-term reservation requests at the Committee's regular meeting during the month of February. Representatives of the persons or groups requesting such long-term reservations are required to attend the February meeting of the Limerick Township Parks and Recreation Commission to assist in resolving any scheduling conflicts. At the February meeting, the Parks and Recreation Committee will tentatively assign reservations, attempting to accommodate all requests. In the case of competing requests for the same facilities at the same times, the Parks and Recreation Committee will encourage cooperation in modifying requests to resolve the schedule conflicts. If the conflict cannot be resolved, preference shall be given to the group demonstrating the largest number of Limerick Township residents enrolled, registered or participating in the program for which the reserved facilities are sought.
H. The final schedule of reservations shall be determined by the Parks and Recreation Committee at its regularly scheduled meeting during the month of March. After the reservation schedule has been announced by the Board of Supervisors, each group assigned reserved facilities shall submit a signed agreement, certificate of insurance, and any fees required within 10 business days to the Township, or the reservation will be forfeited. After the March meeting of the Parks and Recreation Committee, additional reservations may be made on a first-come, first-served basis in accordance with the availability of the facilities within the parklands. Such reservations shall be made in writing on forms provided by the Township at least 10 business days prior to the date of the event for which the reservation is sought.
I. Insurance requirements. All groups reserving the exclusive use of any portion of or facilities within the parklands for more than seven days in a calendar year shall obtain and maintain liability insurance for the benefit of such group, making the Township a named insured, as recommended from time to time by the Limerick Township Parks and Recreation Committee and required by the Board of Supervisors.


§ 114-10. Liability. A. All individuals and groups will be held responsible for any damage, destruction, defacement or theft of property or facilities within the parklands, which they or their members cause.
B. The Township assumes no responsibility for injuries to any persons or damage to any property during any individual use or group use of the parklands or any portion or facilities thereof.
C. The Township shall have no responsibility for any property lost or stolen or left at or on the parklands.

[billamj]

I'll say it right now, everything that I stated before was incorrect. This is a plain violation of preemption! The only way that they could pull this off is if the charge is trespass. My most humble apologies!

[GunLawyer001]

Thanks for the welcome, everyone.

I don't want to repeat myself. The law isn't what smart amateurs think it should be, it is what the courts say it is, in interpreting statutes.

To respond to some questions:

The owner of land is the person listed with the Recorder of Deeds. The government owns most of Alaska, as the default owner of land (which they bought from the Russkies), but in most Eastern states, land is mostly privately owned. The government can make you jump through a lot of hoops before you build on it or use it for business or personal use, but you own it. If Limerick declared itself the owner of all land within its borders, it would be a "taking" covered by the Bill of Rights.

Publicly owned land is like corporate owned land. You may own a thousand shares of IBM, so you are one of the owners, but that doesn't entitle you to drop by their local office and borrow equipment. The managers have day-to-day responsibility and control, not the "owners" of the company. As with citizens, if you want change, vote them out, but until they're voted out, they have control.

As for pre-emption, State law isn't inconsistent with prohibiting guns in certain places. Pre-emption prohibits general gun bans that vary from jurisdiction to jurisdiction, so that if you're legal in your car in Bucks County you don't need to look up Philadelphia laws if you drive through the city.

"Trespass" is any use of another's property that isn't permitted by the person in charge, so if someone brings a gun into your house despite written notice not to, you could have them arrested. It's a criminal law that backs up private rules for private property. You can also have them arrested if you arbitrarily demand that they leave, and they refuse.

I can't emphasize too much that the law isn't what accountants and plumbers and office workers think it should be, it is what it is. I'll venture legal opinions based on years of professional experience, but if you say that I'm wrong I'd appreciate a cite to a court case backing you up.

Limerick can prohibit guns in parks just by posting a sign at the entrance, without violating pre-emption; if they do the same thing through a criminal statute and signs, they have not done anything substantively different. Even if you get the law struck down, they can leave the signs up and prosecute for trespass.

Regulating the use of specific property is not the same as passing a general law. Lawyers and judges and legislators understand this, and Pennsylvania's pre-emption statute was passed and will be interpreted this way.

[exceltoexcel]

I'll play devils advocate here and say it doesn't even matter IF they had private property rights to a specific piece of land. They could say ban someone from using or being on that land but they could not pass a law that said you're banned from being on that land and if you're in possession of a firearm you get 10 years in jail. That would be flat out illegal. I'll go further, while they can restrict use of a piece of "private" land they still can't pass a rule saying no firearms because incorporated or not they are restricted in doing so by law. That right even a rule that has no criminal standing. They can't ask you to leave because of it, only if you violated another rule, this has clear president by the VCDL, if its open to the public and owned by a municipality or any kind, then they cannot forbid pass or regulate in any manner the carrying of firearms. It really is that straight forward.

[exceltoexcel]

Well then I respectfully completly disagree with you.

I see no possible interpretation of "in any manner" that would allow them to pass any law what so ever.

Did you pass the bar, is your JD in copywrite law?