Loading...
#5 Action to prohibit possession of any firearm in City building or structure (File Ord. #2011-493)CITY MANAGER’S OFFICE MEMORANDUM September 30, 2011 TO: City Council FROM:Wald Klimczyk, City Attorney Becca Smith, Management Analyst Tim Wellnitz, Assistant City Attorney SUBJECT: Discussion and action on a proposed ordinance prohibiting the possession of any firearm in any City building or structure except as allowed by law for sworn law enforcement and peace officers (File Ordinance 2011-493) Request Councilmembers Sam Liebert and Yuri Rashkin requested the Administration draft a policy prohibiting firearms within the Municipal Building. Staff expanded the proposed policy to include other city facilities and recommends an ordinance be established, instead of a policy statement. A second reading and public hearing on the proposed ordinance took place on August 22, 2011, but discussion and action was continued to provide additional time to see if Wisconsin administrative rules would be adopted that would provide additional guidance on this subject. There have not been any administrative rules that have been adopted relating to this new state law regarding the carrying of concealed weapons. Staff Recommendation Staff has no recommendation. Police Department Recommendation The Police Department recommends adoption of the ordinance. City Manager Recommendation After weighing the desire to prohibit weapons in municipal facilities with concerns regarding liability, the City Manager recommends approval of the Ordinance prohibiting concealed weapons in a municipal facility. Ordinance 2011-493 Ordinance 2011-493 prohibits individuals from bringing firearms onto property owned, occupied, or controlled by the City of Janesville, including the Municipal Building and Hedberg Public Library. Individuals would be able to have firearms on the city-owned bike trail or in open spaces within the park system as provided by state law. This ordinance exempts sworn Wisconsin or Federal law enforcement or police officers. This ordinance also exempts any city property where the property is not properly “signed” stating that firearms are prohibited. Individuals found possessing firearms on city property may be fined a penalty ranging from $200-$10,000. Pros & Cons of Approving Ordinance 2011-493 Pros: 1. This will make the policy in other city buildings consistent with the prohibition in state law for carrying firearms in a police building. Cons: 1. This ordinance is different than the state law policy adopted by the Wisconsin legislature, which generally allows individuals to openly carry a firearm or carry a concealed firearm with a permit. 2. There is an unknown potential that there could be additional duties or liability imposed upon the City for adopting the ordinance. CC: Eric Levitt, City Manager Jacob J. Winzenz, Assistant City Manager ORDINANCE NO. 2011 - 493 An ordinance prohibiting the possession of any firearm in any City building or structure except as allowed by law for sworn law enforcement and peace officers, with penalties for violations thereof as set forth in JGO 9.88.040. THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS FOLLOWS: SECTION I. Chapter 9.88 of the Code of General Ordinances of the City of Janesville is hereby created to read as follows: “Chapter 9.88 NO FIREARMS OR WEAPONS INSIDE CITY BUILDINGS Sections: 9.88.010 Prohibition. 9.88.020 Exceptions. 9.88.030 Definitions. 9.88.040 Violation--Penalties. 9.88.010 Prohibition. A. No person may possess or bring any concealed or unconcealed firearm or weapon into or upon any City owned, occupied, or controlled building or structure at any time. B. No person may cause any concealed or unconcealed firearm or weapon to be brought into or present upon any City owned, occupied, or controlled building or structure at any time. 9.88.020 Exceptions. A. The prohibitions set forth in JGO 9.88.010 do not apply to sworn Wisconsin or Federal law enforcement or police officers. B. The prohibitions set forth in JGO 9.88.010 do not apply to City owned, occupied, or controlled buildings or structures not containing a “sign” as defined in this Chapter. 9.88.030 Definitions . A. “Building” shall have the meaning as set forth in JGO 18.20.090, as from time to time amended or renumbered, to-wit: “…any structure built for the support, shelter, or enclosure of persons, chattels, or movable property of any kind and which is permanently affixed to the land but shall not include fences.” Buildings shall include each City owned, occupied, or controlled building and structure as contemplated by, but not limited to, those enumerated and described in Wis. Stats. Section. 943.13(1m)(c) 4., as from time to time amended or renumbered, that contain a “sign” providing notice of the prohibitions. B.“City” shall mean the City of Janesville, a Wisconsin municipal corporation. C.“Federal” shall mean employed by the United States of America or a Federal agency. D.“Firearm” shall mean all weapons that act by force of gunpowder within the scope of Wis. Stats. Sec. 167.31(1)(c) and shall also include all devices, items, and weapons enumerated in JGO 9.87.010 such as bows, etc., both as from time to time amended or renumbered. E. “Law enforcement officer” shall mean those defined as “Police Officers.” F. “Police Officer” shall mean any sworn: City of Janesville police officer, Rock County sheriff, undersheriff, deputy sheriff, game warden, state patrol officer, state game warden, other sworn Wisconsin law enforcement officer, or sworn Federal law enforcement agent.” G. “Sign”, “signs,” and “signed” shall mean City Manager authorized written information that provides notice of the prohibitions set forth in this Chapter prominently posted near all of the entrances open to the public for that building so that any individual entering the building can be reasonable expected to see the notice “sign” or “signs.” See also: Wis. Stats. 943.13(2)(bm) 2., am., as from time to time amended or renumbered for guidance as to notice and signs. H.“Structure” shall have the meaning as set forth in JGO 18.20.860, as from time to time amended or renumbered, to wit: “… anything constructed or erected, the use of which requires a more or less permanent location or which is attached to something having a permanent location on or in the ground, a stream bed or lake bed.” Structures shall include, but not be limited to, each City owned, occupied, or controlled building and structure, all other City owned buildings and structures as contemplated by, but not limited to, those enumerated and described in Wis. Stats. Section. 943.13(1m)(c) 4., as from time to time amended or renumbered, that contain a “sign” providing notice of the prohibitions. 9.88.040 Violations – Penalties. A. Any person who violates any of the provisions of this chapter shall forfeit and pay to the city a penalty of not less than Two Hundred Dollars ($200) and not to exceed Ten Thousand Dollars ($10,000) per weapon per incident, together with the costs of prosecution for each offense, and in default of the payment of such forfeiture penalty, the violator shall be subject to the remedies available to a court by law and/or equity for failure to pay imposed forfeitures, including, but not limited to, imprisonment in the Rock County for not more than one hundred eighty (180) days. B. In addition to the penalties set forth in subsection A., the offending firearm(s) and/or weapon(s) shall be seized by the Janesville police and forever forfeited to the State Crime Laboratory.” (adopted 10/2011) ADOPTED: Motion by: Second by: APPROVED: Councilmember Aye Nay Pass Absent Brunner Dongarra-Adams Eric J. Levitt, City Manager Liebert McDonald ATTEST: Rashkin Steeber Voskuil Jean Ann Wulf, City Clerk-Treasurer APPROVED AS TO FORM: ______________________________ Wald Klimczyk, City Attorney Proposed by: City Manager Prepared by: City Attorney CITY ATTORNEY’S OFFICE MEMORANDUM August 5, 2011 TO: Eric Levitt, City Manager FROM: Tim Wellnitz, Assistant City Attorney SUBJECT: Additional Information Relating to Proposed Ordinance 11-493 Prohibiting the Possession of Firearms or Weapons Inside City Buildings or Structures This proposed ordinance was postponed at the July 25, 2011 City Council meeting until the August 22, 2011 meeting so that additional information could be looked at regarding the proposed ordinance and the potential effects of the new state law that will take effect November 1, 2011. I was asked to provide information relating to potential City liability for prohibiting firearms in City buildings, whether firearms would be prohibited in the Municipal Building because it is within 1000 feet of the Police Department, and whether the City’s insurance carrier, CVMIC, had any recommended language for the proposed ordinance. Potential City Liability for Prohibiting Firearms and Weapons In City Buildings i Wis. Stat. § 175.60 (21)(b) provides immunity to property owners for making the decision to not prohibit the carrying of a concealed weapon on their property. The statute does not provide immunity for property owners that make the decision to prohibit carrying concealed weapons on their property. There is not any case law on whether this creates a duty on the City to make sure that firearms or weapons are not allowed in City buildings where firearms or weapons are prohibited. There is a possibility that there is a duty that could be imposed upon the City. If this were done a Court would probably assign whatever they thought was reasonable care that the City should take based upon the particular case by case circumstances to prevent or avoid harm to others by people who might bring firearms or weapons into the building and harm someone under Wisconsin negligence law. Factors that would likely be considered include the balancing of cost, effort, and risk potential. Prohibition Regarding Weapons In the Police Department ii Wis. Stat. § 175.60(16)(a)(1) prohibits carrying weapons and firearms in any portion of a building that is a police station. Since the Police Department is in a separate building, the entire building encompasses the police station and it would be contrary to state law for someone to carry a weapon or firearm into the Police Department building other than law enforcement officers. There is not a requirement in the statutes that prohibits the carrying of weapons or firearms within a certain distance of the Police Department building. In order to prohibit the carrying of weapons or firearms in the Municipal Building under the proposed iiiiv ordinance and Wis. Stat. § 943.13 (1m) (c)(4) a sign, at least 5 inches by 7 inches, must be posted in a prominent place near all of the entrances so that the individual entering must be reasonably expected to see the sign. Potential Preferred Ordinance Language from CVMIC I contacted the City’s Insurance Claims Representative at Cities & Villages Mutual Insurance Company (CVMIC). CVMIC does not have any proposed or preferred language regarding such local ordinances. cc: Jacob J. Winzenz, Assistant City Manager/Director of Administrative Services Wald Klimczyk, City Attorney i 175.60 License to carry a concealed weapon. IMMUNITY. (21) (b) A person that does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from its decision. ii 175.60 License to carry a concealed weapon. PROHIBITED ACTIVITY. (16) (a) Except as provided in par. (b), neither a licensee nor an out-of-state licensee may knowingly carry a concealed weapon, a weapon that is not concealed, or a firearm that is not a weapon in any of the following places: 1. Any portion of a building that is a police station, sheriff's office, state patrol station, or the office of a division of criminal investigation special agent of the department. iii 943.13(1m) Whoever does any of the following is subject to a Class B forfeiture: (c) 4. Enters or remains in any part of a building that is owned, occupied, or controlled by the state or any local governmental unit, excluding any building or portion of a building under s. 175.60 (16) (a), if the state or local governmental unit has notified the actor not to enter or remain in the building while carrying a firearm or with that type of firearm. This subdivision does not apply to a person who leases residential or business premises in the building or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the building used as a parking facility. iv (2) 943.13 (bm) 1. In this paragraph, "sign" means a sign that states a restriction imposed under subd. 2. that is at least 5 inches by 7 inches. (2) 943.13 2. am. For the purposes of sub. (1m) (c) 2., 4., and 5., an owner or occupant of a part of a nonresidential building, the state or a local governmental unit, or a university or a college has notified an individual not to enter or remain in a part of the building while carrying a firearm or with a particular type of firearm if the owner, occupant, state, local governmental unit, university, or college has posted a sign that is located in a prominent place near all of the entrances to the part of the building to which the restriction applies and any individual entering the building can be reasonably expected to see the sign.