Zionsville Attempting to Restrict Rural Shooting

[BogWalker]

Any chance if this passed it could be reversed as unconstitutional ?

I think that would be highly unlikely.

 

[shibumiseeker]

I think landowners with ranges on their property should have to get permits and get inspected by the range Marshall. Your right to shoot on your property doesn't trump your neighbors right to not be shot by you.

I mow my lawn by shooting across it, that way Kirk's property values don't go down.

 

[HoughMade]

Is it time for an OC walk in a certain Z-ville neighborhood?

Sure. That'll solve everything.

 

[eldirector]

Rather than pass a new ordinance, why not just rezone these areas from"rural" to "urban"? If the folks that live in these areas WANT to be treated like their urban counterparts, then they should be classified the same. If the residents DON'T want to be treated like their urban neighbors, then leave them alone.

Otherwise, put a cork in it.

 

[DoggyDaddy]

Rather than pass a new ordinance, why not just rezone these areas from"rural" to "urban"? If the folks that live in these areas WANT to be treated like their urban counterparts, then they should be classified the same. If the residents DON'T want to be treated like their urban neighbors, then leave them alone.

Otherwise, put a cork in it.

From what I've gathered so far, it sounds more like the urban counterparts are the ones wanting to impose their will on the rural residents. I suppose I may have misinterpreted things though.

 

[amboy49]

Eldirector, the council knows they can't "rezone" the rural areas to urban. If they do, they then have to provide city services including water and sewer to those landowners. The Rural population density isn't sufficient enough to justify the cost of providing this infrastructure in the outlying areas and the Council knows that. Even if they chose to run the sewer lines, which would be a huge cost, the present sewage treatment plant is at or near full capacity so the plant would also have to be expanded at a cost of several million dollars.

The council is apparently intent on giving the "complainers" a pulpit to push their agenda re: land use.

 

[eldirector]

From what I've gathered so far, it sounds more like the urban counterparts are the ones wanting to impose their will on the rural residents. I suppose I may have misinterpreted things though.

That is how I understand it as well. In which case, they need to go pound sand.

 

[Kirk Freeman]

I think landowners with ranges on their property should have to get permits and get inspected by the range Marshall

But why? We are advised that there have been no problems? What is the basis to have this done?

It seems to me that this could be short circuited by asking the advocates for proof of damages and then how this this remedy has any nexus to the damage.

 

[HoughMade]

But why? We are advised that there have been no problems? What is the basis to have this done?

It seems to me that this could be short circuited by asking the advocates for proof of damages and then how this this remedy has any nexus to the damage.

You know as well as I do that that may be a good argument for court, but this is politics.....at least at this point.

 

[DoggyDaddy]

Eldirector, the council knows they can't "rezone" the rural areas to urban. If they do, they then have to provide city services including water and sewer to those landowners. The Rural population density isn't sufficient enough to justify the cost of providing this infrastructure in the outlying areas and the Council knows that. Even if they chose to run the sewer lines, which would be a huge cost, the present sewage treatment plant is at or near full capacity so the plant would also have to be expanded at a cost of several million dollars.

The council is apparently intent on giving the "complainers" a pulpit to push their agenda re: land use.

So you're saying that the council knows that they're basically full of ?

 

[dnurk]

The email contact information for three of the Town Council members is as folllows:

Jeff Papa jpapa@zionsville-in.gov Town Council President
Candice Ulmer culmer@zionsville-in.gov Union Township member
Tim Haak thaak@zionsville-in.gov Eagle Township member of District 2


I've sent an email to these three requesting the rationale behind this proposed ordinance, their personal view(s) on it, and when and where public comment will be accepted.

I am awaiting their responses. I am also making a Google search of the history of the consolidation initiative in 2007 inclusive of reviewing the minutes of the meetings and the promises made re: the intent to retain the "rural" lifestyle and land use stated by various committee members during the time the issue was being debated. I am requesting any information that can be used to combat this ordinance in a sensible and coherent manner. After more research, I'm more convinced than ever the Zionsville housewife and mother who started the Million Moms for Gun Control is behind all of this and has gained the ear of some, if not all, of the council members.

I just sent a message to the entire council voicing our opposition to this.

Fyi, the rest of the council has email addresses listed here...
Town of Zionsville » Zionsville Government

 

[Kirk Freeman]

You know as well as I do that that may be a good argument for court, but this is politics.....at least at this point

And as such evidentiary harpoons are allowed in politics.

The county attorney will be at any meeting/hearing sitting off to the side.

Ask those questions (among others) and put reasonable doubt in the county attorney's mind.

 

[HoughMade]

And as such evidentiary harpoons are allowed in politics.

The county attorney will be at any meeting/hearing sitting off to the side.

Ask those questions (among others) and put reasonable doubt in the county attorney's mind.

A sound tactic.

 

[GuyRelford]

Any chance if this passed it could be reversed as unconstitutional ?

I think there's a definite chance that it could be reversed as a violation of the Indiana Firearms Preemption Act.

 

[dnurk]

Well, at least they are prompt with responding....I just got this response:

Dave,


Thanks for your email. The discussion was prompted by a series of reports and citizen complaints at town council meetings and via email for about a year. We're having a discussion of the issue on August 5 at the council meeting - please feel free to share your thoughts. The draft ordinance that was for discussion and does not prohibit shooting for sporting or any other purpose - the draft calls for not shooting within 150 yards of another person or property but has several exceptions and several others have been suggested as well as alternatives. In any case, the council hasn't discussed this yet or decided anything. We do need to have a public discussion of the issue in response to citizen complaints. Thanks for your comments, much appreciated.


Jeff Papa

 

[eldirector]

I think there's a definite chance that it could be reversed as a violation of the Indiana Firearms Preemption Act.

I could understand why they couldn't regulate having a range/backstop (an accessory, maybe). But, local governments may still regulate discharge of a firearm, correct?

 

[GuyRelford]

I could understand why they couldn't regulate having a range/backstop (an accessory, maybe). But, local governments may still regulate discharge of a firearm, correct?

I don't believe so. Here is what I just said to Jeff Papa on that issue:

Regarding the preemption statute, I am very familiar with the role of IACT and the discussion around the inclusion of the term "use" in Ind. Code 35-47-11.1-2(b) as the bill proceeded through the General Assembly. And while Indiana does not generally have a citable legislative history, it is clear that courts will review the limited legislative history available only when a statute is ambiguous. See., e.g., Herff Jones, Inc. v. State Bd. of Tax Com'rs, 512 N.E.2d 485 (Ind. Tax Ct. 1987). And what I said at the time that the preemption statute was being debated - and what I will say again in court if called upon - is that the only way to preserve a municipality's ability to regulate the discharge of firearms under the act was to either remove the broad reference to "firearms" in 35-47-11.1-2(a), so that the regulation prohibited by the act was limited to "the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories;" and "commerce in and taxation of firearms, firearm ammunition, and firearm accessories" as contained in subsections 2(b) and 2(c) - and as your email seems to assume - OR to include an exception for the regulation of the discharge of firearms in 35-47-11.1-4. However, IACT accomplished neither, and we are now left with the plain meaning of the words in the statute, including the very broad prohibition against the regulation of "firearms" in subsection 2(a).

As a result, the Town Council should consider whether it is confident that a court would conclude that its proposed ordinance is not the regulation of "firearms." If it is (and I don't believe that's even a close call), then the absence of an exception for the regulation of the discharge of firearms in Section 4 of the statute renders the currently proposed ordinance illegal and the basis for significant liability.

 

[eldirector]

Thanks for sharing, Guy.

So, it sounds like it is entirely possible that current local ordinances against discharge (on the books in pretty much every city/town) are illegal? Even Zionsville's current Urban District ordinance?

 

[GuyRelford]

Here is the entire exchange between Jeff Papa and myself. Sheriff Ken Campbell also sent an email to Mr. Papa opposing the proposed ordinance, which he copied me on, but it has a footer indicating that it is not to be republished without permission, so I will honor that request.

The earliest email is on the bottom.

-------- Original Message --------
Subject: RE: Proposed Ordinance
From: <guy@relfordlaw.com>
Date: Thu, July 25, 2013 11:32 am
To: "jeff papa" <jeffpapa@yahoo.com>, "Jeff Papa
(JPapa@zionsville-in.gov)" <JPapa@zionsville-in.gov>, "Ed Mitro"
<emitro@zionsville-in.gov>, "ehopper@zionsville-in.gov"
<ehopper@zionsville-in.gov>, "tschuler@zionsville-in.gov"
<tschuler@zionsville-in.gov>, "Steve Mundy" <smundy@zionsville-in.gov>,
"Susana Duarte de Suarez" <sukoduarte@gmail.com>, "Tim Haak"
<thaak@zionsville-in.gov>, "wdelong@zionsville-in.gov"
<wdelong@zionsville-in.gov>, "kimberly.blanchet@btlaw.com"
<kimberly.blanchet@btlaw.com>
Cc: "'Candace Ulmer'" <culmer@zionsville-in.gov>, "Ken Campbell"
<KCampbell@co.boone.in.us>


Jeff - thank you very much for your email. It appears that we agree on several points and I appreciate your comments greatly. The areas where we disagree, however, are as follows:

The proposed ordinance seems to assume that any shooting activity occurring within 150 yards of someone else's property somehow constitutes a danger to anyone on the adjoining property. As the operator of an outdoor public shooting range (Eagle Creek Pistol Range - which is the IMPD training facility during the week), I can tell you that such notions are naïve and unfounded. I have personally stood within a foot or two of shooters firing literally millions of rounds of ammunition over the years, and the issue of whether that activity was safe or dangerous related only to the direction of fire and the appropriateness of the backstop behind the target. Any responsible gun owner knows the first generally-accepted rule of safe gun handling: always keep your gun pointed in a safe direction. Anyone who follows that rule is using their firearm in a safe and responsible manner, including those who fire guns into well-constructed backstops that eliminate any risk of bullets leaving the premises or endangering others. For these reasons, the proposed ordinance, which makes no exception for responsible shooting in a safe direction and into an appropriate backstop, is unreasonably broad and unduly restrictive both of landowners' property rights as well as their rights under the Second Amendment.

In addition, I do not believe it is appropriate for any farmer to have to ask his neighbor's permission to protect his livestock against an attack by predators simply because his fields, pens or coops are located within 150 yards of his neighbor's property. Indiana already has laws on the books against any unsafe or irresponsible use of a firearm that endangers others, notably Criminal Recklessness with a Deadly Weapon and Pointing a Firearm. Should any farmer be subject to a significant fine under the proposed ordinance simply because he failed to obtain his neighbor's consent to kill a coyote that is decimating his chickens in the middle of the night? Of course not.

You are quite correct that I argued that the property located on 300 South was not being operated as a "shooting range" in my letter to the Planning Commission last year. However, that argument was made in the alternative, as we also argued that a shooting range is an acceptable secondary use of rural residential property under the Zionsville zoning ordinance; see Boone County Area Plan Commission v. Kennedy, 560 N.E.2d. 692 (Ind. Ct. App. 1990), and that the attempted prohibition of shooting activities on that property violated the Indiana Firearms Preemption Act. In this regard, I do not believe that the Town of Zionsville ever agreed that the property was not being operated as a shooting range and there was never a legal disposition of that issue.

Regarding the preemption statute, I am very familiar with the role of IACT and the discussion around the inclusion of the term "use" in Ind. Code 35-47-11.1-2(b) as the bill proceeded through the General Assembly. And while Indiana does not generally have a citable legislative history, it is clear that courts will review the limited legislative history available only when a statute is ambiguous. See., e.g., Herff Jones, Inc. v. State Bd. of Tax Com'rs, 512 N.E.2d 485 (Ind. Tax Ct. 1987). And what I said at the time that the preemption statute was being debated - and what I will say again in court if called upon - is that the only way to preserve a municipality's ability to regulate the discharge of firearms under the act was to either remove the broad reference to "firearms" in 35-47-11.1-2(a), so that the regulation prohibited by the act was limited to "the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories;" and "commerce in and taxation of firearms, firearm ammunition, and firearm accessories" as contained in subsections 2(b) and 2(c) - and as your email seems to assume - OR to include an exception for the regulation of the discharge of firearms in 35-47-11.1-4. However, IACT accomplished neither, and we are now left with the plain meaning of the words in the statute, including the very broad prohibition against the regulation of "firearms" in subsection 2(a).

As a result, the Town Council should consider whether it is confident that a court would conclude that its proposed ordinance is not the regulation of "firearms." If it is (and I don't believe that's even a close call), then the absence of an exception for the regulation of the discharge of firearms in Section 4 of the statute renders the currently proposed ordinance illegal and the basis for significant liability.

In closing, I note that in recent months, Americans have repeatedly heard the words "I support the Second Amendment, but . . ." from various elected officials. Voters now know exactly how to interpret those words, which is actually "I am fully willing to restrict the Second Amendment rights of responsible and law-abiding citizens in order to appease a vocal minority." I hope that the Zionsville Town Council will avoid falling into this category and truly stand up for the Second Amendment rights of responsible and law-abiding citizens who reside within the Zionsville Rural District. In this regard, the currently proposed ordinance constitutes an unreasonable and unnecessary limitation of those rights.

Again, thank you for your consideration.


Guy
---------------
The Law Offices of Guy A. Relford
One South Rangeline Road
Suite 110
Carmel, IN 46032
(317) 844-4297
(317) 844-2036 (fax)
(317) 450-8252 (cell)

E-mail: guy@relfordlaw.com
The Law Offices of Guy A. Relford
www.facebook.com/relfordlaw

-------- Original Message --------
Subject: Re: Proposed Ordinance
From: jeff papa <jeffpapa@yahoo.com>
Date: Wed, July 24, 2013 5:41 pm
To: "guy@relfordlaw.com" <guy@relfordlaw.com>, "Jeff Papa
(JPapa@zionsville-in.gov)" <JPapa@zionsville-in.gov>, Ed Mitro
<emitro@zionsville-in.gov>, "ehopper@zionsville-in.gov"
<ehopper@zionsville-in.gov>, "tschuler@zionsville-in.gov"
<tschuler@zionsville-in.gov>, Steve Mundy <smundy@zionsville-in.gov>,
Susana Duarte de Suarez <sukoduarte@gmail.com>, Tim Haak
<thaak@zionsville-in.gov>, "wdelong@zionsville-in.gov"
<wdelong@zionsville-in.gov>, "kimberly.blanchet@btlaw.com"
<kimberly.blanchet@btlaw.com>
Cc: 'Candace Ulmer' <culmer@zionsville-in.gov>, Ken Campbell
<KCampbell@co.boone.in.us>


Hi Guy & Sheriff Campbell,

Thanks for both of your emails today. I am a strong supporter of 2nd Amendment rights, and will not support any effort to infringe on the rights to possess, sell, transfer, self-defense, operate a business, etc. You are looking at a draft that was produced for discussion purposes, and only regarding discharge near another person or other person's structure/property - and in any case I will not entertain a motion to adopt this ordinance on final reading at the next meeting, even if it is introduced - the town needs to have a discussion about this topic because several residents have repeatedly raised the issue, but the best way to address the issue is yet to be determined. I really appreciate your input, and wanted to address a few of the items you mentioned. One item is the "within range of" language - I saw this when I read the draft and immediately had the same thought you did. I wrote out an alternate version for discussion a few days ago that gets rid of the "within range" of language altogether - I agree that it is vague and too encompassing, and could also be read to restrict huge swaths of property. Instead the remaining language would just refer to within 150 yards proximity of nonparticipating persons or another person's property, parks, schools, etc. The alternate version also says this 150 yd buffer does not apply to most circumstances where the other person has granted permission.

On the issue of self-defense, I also agree completely with you - that can't/shouldn't be infringed in any way. Of course, I wouldn't expect a town to ever issue a citation for discharge in self-defense, but that is a good suggestion to write that exception into the draft ordinance as well in order to make sure it can't happen. On hunting and livestock predators, the alternate draft would not prevent that at all except within 150 yards of a nonparticipating person or property (and in most cases, not even then if that person has consented). Would be happy to hear some alternate ideas here, either to improve the draft or in place of it.

You also make a great point about shooting ranges - while towns may regulate shooting ranges, I do not think that existing legal or future legal shooting ranges should be impacted by this particular draft ordinance if they are otherwise legal. That should be made clear in the draft ordinance as well, if it moves forward. You mentioned a shooting range in the 300 South area, but if this is the same property as discussed at earlier town meetings, the town did send a letter stating that it appeared to be a shooting range and received a letter from Guy and a signed affidavit from the property owner stating that it is not a shooting range in fact or under Indiana law and pointing out that the area in question does not meet several of the minimum criteria established by the NRA to qualify as a shooting range, including many NRA specifications that appear to be designed for safety purposes (citing, for example, the absence of containment berms and baffles to contain sound and bullets). I think at one point that property owner and their neighbors were going to work out a schedule or notification system that they all agreed on to resolve their dispute, but I'm not sure what happened to that agreement.

I also agree 100% that Ind. Code 35-47-11.1-2 prohibits political subdivisions from regulating "firearms," and their possession, sale, transfer, commerce, etc. However, it explicity does not prohibit local units from regulatng discharge. I was involved in many of those discussions as the bill progressed; the introduced version of the bill, the engrossed version of the bill, and a late conference committee report version all specifically prohibited local units from regulating "discharge" (as well as "use"). Earlier versions of the bill also included "and any other matter pertaining to firearms." Each of these provisions were intentionally removed and deleted from the version of the bill that passed into law. IACT and other entities objected to the earlier versions of the bill which would have prevented cities and towns from regulating discharge, use, and the broader term of "any other matter." In response to those objections, those preemptions of discharge, use, and any other matter were removed from the bill before it became law. The statutory construction of looking at the list of exceptions to the statute does not invoke "discharge" via not being listed - the law itself does not preempt local regulation of discharge or use, and therefore none of the exceptions (or absence thereof) would apply to this topic. (and therefore statutory construction cannot be used to read them in as items not listed).

Anyone is welcome to speak at town council meetings, you just fill out the request card and there is a time on the agenda August 5 for anyone from the public to take 3 minutes on any topic. Would welcome any suggestions before or at the meeting for improvements to the draft, as well as any alternate ways other than a waivable 150-yard buffer to make sure that neighbors are safe during firearms discharges. I'm only speaking for myself, and the council has not had a full discussion of this issue. I would really love to hear some alternative suggestions to address the concerns raised by citizens at our council meetings - maybe there is another way to address their concerns. Thanks for your input on this; happy to discuss.

Jeff

PS - Both Guy and Sheriff Campbell's emails are below - I copied the council so they could see the thoughtful issues you raised in your emails earlier today

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From: "guy@relfordlaw.com" <guy@relfordlaw.com>
To: "Jeff Papa (JPapa@zionsville-in.gov)" <JPapa@zionsville-in.gov>
Cc: 'Candace Ulmer' <culmer@zionsville-in.gov>; Ken Campbell <KCampbell@co.boone.in.us>
Sent: Wednesday, July 24, 2013 9:57 AM
Subject: Proposed Ordinance



Jeff -

By way of introduction, I am a resident of Zionsville and I practice law exclusively in the area of firearms-related legal issues and the protection of Second Amendment rights. I am a NRA-Certified Firearms Instructor and Chief Range Safety Officer. I am also the owner and chief instructor at Tactical Firearms Training, LLC and the author of a national publication, "Gun Safety & Cleaning for Dummies." Like Sheriff Campbell, I vehemently oppose the proposed ordinance that would prohibit the discharge of firearms in the Zionsville Rural District.

Initially, it appears to me that the following provision is unconstitutionally vague:

"It shall be unlawful for any person to fire or discharge a firearm within 150 yards in proximity to or within the range of any person or assemblage of people, adjacent private property, vehicle, farm, dwelling, house, apartment, church, school, airport, or other building, park, trail, pathway or recreational area, or to fire in such direction such that any projectile expelled could or does strike, hit, enter or pass through any of the foregoing."

Firearms and ammunition have dramatically different ballistic characteristics and a variety of factors will greatly influence whether any person or property is "within the range" of any particular shooting activity, including trajectory, bullet weight, muzzle velocity, humidity, wind, etc. For that reason, it would be virtually impossible to determine with certainty what property is "within the range" of any particular shooting activity. More importantly, discharging a firearm into a properly constructed backstop will render that shooting activity entirely safe - such that no other property is "within the range" of a shot fired into that backstop - yet the proposed ordinance naively and inaccurately labels such safe and responsible shooting as "injurious to health, indecent [and] offensive." In fact, that language is inexcusably offensive to every responsible gun owner and supporter of the Second Amendment in Zionsville - and there are many of us.

The ordinance is also dramatically over-broad. For example, notwithstanding the fact that Indiana law allows the use of reasonable force, including deadly force, in self-defense under some circumstances (see Ind. Code 35-41-3-2), the proposed ordinance would actually expose a person to a fine for legally and justifiably firing a gun at an attacker, armed robber, home invader or attempted rapist. Is that the intent of the Zionsville Town Board?

Similarly, the ordinance is so broad as to prevent a farmer from legally and justifiably protecting his livestock from predators, which would radically alter the rights of every farmer in the Zionsville Rural District. The proposed ordinance would even prevent a land owner from lawfully hunting on his own property. Is that also the intent of the Board?

You should also be advised that the following statement in the proposed ordinance is incorrect:

"WHEREAS, Indiana Code 35-47-11.1 prohibits a political subdivision from regulating firearms; ownership, possession, carrying, transportation, registration, transfer and storage of firearms; and commerce in and taxation of firearms, but does not limit the regulation of discharge of firearms within Zionsville."

Ind. Code 35-47-11.1-2 broadly prohibits political subdivisions from regulating "firearms." The proposed ordinance unquestionably regulates firearms. While Ind. Code 35-47-11.1-4 sets forth the exceptions to the broad prohibition of the regulation of firearms set forth in Section 2, nowhere within those exceptions is "the discharge of firearms" identified. For that reason, Ind. Code 35-47-11.1 would in fact preempt the proposed ordinance and subject the Town of Zionsville to significant liability in the event that it is passed.

For all of the above reasons, I will oppose the proposed ordinance by all means necessary. I also intend to speak against its passage at every opportunity.

Thank you for your consideration.

Guy A. Relford
Zionsville, Indiana
---------------
The Law Offices of Guy A. Relford
One South Rangeline Road
Suite 110
Carmel, IN 46032
(317) 844-4297
(317) 844-2036 (fax)
(317) 450-8252 (cell)

 

[GuyRelford]

Thanks for sharing, Guy.

So, it sounds like it is entirely possible that current local ordinances against discharge (on the books in pretty much every city/town) are illegal? Even Zionsville's current Urban District ordinance?

That is my sincere belief.