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Morrisey intervenes in gun bill

By Matt Murphy, Local government writer

CHARLESTON, W.Va. -- West Virginia's attorney general is getting involved in the debate over Senate Bill 317, also known as the municipal gun bill.

In March, the city of Charleston filed a complaint in Kanawha Circuit Court asking a judge to determine whether the city's municipal recreation centers qualify as educational facilities under state law.

If a judge agrees with the city, Charleston will be able to continue banning guns from its recreation centers.

However, Republican Attorney General Patrick Morrisey announced Thursday afternoon his office filed a motion to intervene in the case, saying the city's complaint should be dismissed “because the City [sic] did not sue anyone.”

A press release from Morrisey's office said Charleston's complaint “violates basic court rules.” Morrisey's office believes “the City cannot seek a judge's opinion on laws that are not being contested by two parties.”

“The City of Charleston violated the most basic court rule: that there has to be conflict between two parties,” Morrisey said in the release. “In this lawsuit, it is the City of Charleston versus no one. The City may have questions regarding the new law, but this is not the correct method to seek those kinds of answers.”

City Attorney Paul Ellis disagreed. He also said Morrisey's intrusion into the case was “unprecedented and premature.”

“I think it's somewhat unprecedented for an attorney general to try to enter into a circuit court case that does not raise a constitutional issue,” he said. “I don't know if it's a new policy but it's certainly unusual.”

He said no one from Morrisey's office contacted the city with concerns.

“It's a premature filing without so much as a phone call identifying any issue the AG had,” Ellis said. I don't know why he or his staff didn't contact the mayor or my office. I never had a conversation with him.

He said Morrisey was wrong to say the case lacks a legal conflict.

“In fact there is a controversy. The West Virginia Citizen Defense League has a suit right now pending that relates to the new gun law,” he said.

“The city just filed this case, and the city has the right to amend its case. We can aid claims and allegations.”

Circuit Court Judge Carrie Webster has been assigned to the case.

Charleston Mayor Danny Jones said in a statement Thursday the city “is not surprised by Attorney General Morrisey's attempt to involve his office in the case.”

“Our position is simple: Senate Bill 317 conflicts with W. Va. Code Section 61-7-11a, which makes it a felony to '. . . possess a firearm or other deadly weapon on school property . . .,” Jones' statement said. “(Morrisey's) challenge is premature and political.

“There is a direct conflict between these two laws. We are asking for a declaratory judgment to clarify the law because it has been stated by members of the West Virginia Senate that (Senate Bill) 317 is subject to 'multiple interpretations.' We should not have to wait until someone brings a gun into a Head Start Program to seek relief, as the Attorney General would suggest.”

In March, Gov. Earl Ray Tomblin signed the bill, which changed how municipalities can enact local firearm laws in West Virginia.

From a statewide perspective, the bill expanded the rights of municipalities to enact firearms laws by allowing all cities to ban or restrict firearms on municipal property, with a few exceptions.

For most cities in the state, the new law generally expands their right to regulate firearms by eliminating a 1999 law that made city gun ordinances illegal except for those in effect at the time.

However, for Charleston, South Charleston and Dunbar — three of the four cities with pre-1999 gun ordinances — the new state law will reduce their ability to regulate guns because those cities had laws that conflict with the new state law.

One provision requires all West Virginia cities to allow concealed-carry firearms into their recreation centers, which the Legislature defined as “any municipal swimming pool, recreation center, sports facility, facility housing an after-school program or other similar facility where children are regularly present.”

Those cities could still ban open-carry firearms in recreation centers and during city-authorized events. Cities can ban all firearms in other “municipally owned or operated buildings.”

The bill also allows persons who sue cities over the provisions of the bill to be awarded attorney fees and court costs at the expense of the municipality; dictates that municipalities cannot be treated as a property owner for the purposes of W.Va. Code 61-7-14, which ensures the right of property owners to prohibit firearms on property they own; and removes firearm language from the state's home rule law.

Finally, the bill disallows city laws concerning gun sales. Only Charleston had such laws.

Charleston's government has been critical of the entire law, but has been especially concerned with the recreation center provision. Mayors in South Charleston and Dunbar have also been wary of that portion of the law.

The city attempted to use the removal of its handgun sales ordinances as a bargaining chip with the Legislature to remove the recreation center provision, but that action failed to produce any reaction at the state level.

In Charleston, some recreation centers house after-school programs and Head Start programs, which the city believes makes the rec centers count as educational facilities.

State law bans all firearms being carried “on a school bus . . . in or on a public or private primary or secondary education building, structure, facility or grounds including a vocational education building, structure, facility or grounds where secondary vocational education programs are conducted or at a school-sponsored function.”


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