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utah-firearms-digest    Tuesday, February 17 1998    Volume 02 : Number 023




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Date: Fri, 13 Feb 1998 08:13:27 -0700
From: DAVID SAGERS <[e-mail]>
Subject: Horiuchi's trial; update -Forwarded

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From: [e-mail] (Doug Spittler)
To: Multiple recipients of list <[e-mail]>
Subject: Horiuchi's trial; update
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X-Comment: Anti-Gun-Ban list

>***As Idaho Trial Date Nears, FBI Sharpshooter's Lawyers Argue for
>***Immunity in Weaver Case
>***By George Lardner Jr.
>***Washington Post Staff Writer
>***Tuesday, February 10, 1998; Page A05
>
>
> FBI sharpshooter Lon Horiuchi's lawyers, with backing from the
> Justice Department, launched an all-out effort yesterday to
> prevent his impending involuntary manslaughter trial in Idaho for
> killing Vicki Weaver in the 1992 siege at Ruby Ridge.
>
> In motions filed in Federal court in Boise, Horiuchi's attorneys
> said he was acting "within the scope of his authority as a federal
> officer" when the shot he fired "unintentionally struck and killed"
> the wife of white separatist Randy Weaver. Horiuchi was among
> dozens of federal agents who surrounded Weaver's remote cabin
> in August 1992 in an attempt to arrest Weaver on an illegal
> weapons charge.
>
> Asking that the charge be dismissed, the FBI agent's
> government-paid defense team argued that Horiuchi is entitled to
> immunity from state prosecution under the Constitution's
> Supremacy Clause and that neither he nor his family "should be
> subjected to the ordeal of a criminal trial."
>
> The special prosecutor for Boundary County, Stephen Yagman,
> said he was confident the defense effort would be rejected and
> that the trial would go forward. He maintained that the immunity
> issue is subordinate to the question of whether excessive force
> was used and that is a question for the jury to decide.
>
> U.S. District Judge Edward Lodge set March 10 as a trial date, but
> a long delay may be in store. The Justice Department in a separate
> filing outlined plans for a prolonged pretrial battle that would
> require state prosecutors to make an evidentiary showing
> rebutting Horiuchi's immunity claim. Should Horiuchi lose that
> fight, Justice Department lawyers maintained in a supporting
> memo that he would be entitled to file an interlocutory, pretrial
> appeal.
>
> Citing what it said was a relevant 1984 case in California, the
> memo said Horiuchi's claim to immunity is based "on the right not
> to be tried if it is to be upheld at all."
>
> Yagman countered with a motion asking Lodge to hold that
> Horiuchi is "not entitled to the immunity defense at all." At the
> time Vicki Weaver was killed, Yagman said, "Idaho state law
> regarding the unlawful taking of a human life clearly was
> established and so too was the law of the land with respect to the
> use of deadly force by police."
>
> The Los Angeles-based civil rights lawyer, appointed by Boundary
> County authorities, told a reporter that the Justice Department had
> "no legal authority" to intrude in the case at this point and that he
> would ask the judge to strike the government memo.
>
> In their pleadings, Horiuchi's lawyers said the sharpshooter was
> aiming at Kevin Harris, a Weaver family friend, and that he acted
> without malice toward Vicki Weaver. At most, they said, the
> state's case rests on "gross negligence," and "not the malice
> necessary" to deny Horiuchi immunity.
>
> They also asked that the trial be moved out of Idaho because of
> "widespread and highly damaging" pretrial publicity, including
> remarks by Yagman that it would be "a trial of the FBI . . . and of
> Attorney General Janet Reno."
>
> Yagman said Horiuchi "waived any right" to have the trial moved
> again after succeeding last month in having it moved from state
> court in Boundary County to federal court in Boise. He said it was
> "very unfortunate that when the federal government carries out
> business in a state and then they do something allegedly wrong in
> that state, they don't trust the people of that state to judge it."
>=============================================
>
> The POLITICAL DIGEST is essentially an Internet "Clipping
>Service." We gather many "Political News Articles" and "Political
>Columns and Editorials" that are on the Internet and combine them into
>one text file, just as a "Clipping Service" does for people with
>"Hard Copies" of newspapers. We do NOT charge for the material.
>
>NOTICE: In accordance with Title 17 U.S.C. Section 107, this material
>is distributed without profit to those who have expressed a prior interest
>in receiving the included information for research and educational purposes.
>
> TPD (THE POLITICAL DIGEST) which contains political
>articles only and will average about 200 K. Cost is $90.00 per year.
>
> TPDL (THE POLITICAL DIGEST LITE) which will average
>about 50 K and will be selected articles out of the TPD & TPDP.
>
> TPDP (THE POLITICAL DIGEST PLUS) which is all
>Commentary's and Editorials from all over the nation, plus selected
>other articles that we find interesting. This will average about
>250K. TPDP costs $90.00 per year.
>
> TPDXTRA (THE POLITICAL DIGEST XTRA) which is FREE
>but sent out on an infrequent basis. It contains things too large
>for TPDL and doesn't fit into TPD & TPDP very well.
>Usually TPDXTRA will contain only one item.
>
> To subscribe to TPD and/or TPDP mail Cash, Check, or money
>order to:
> Wayne Mann
> 1079 Farroll
> Arroyo Grande, Ca. 93420-4136





- -

------------------------------

Date: Fri, 13 Feb 1998 15:38:39 -0700
From: "S. Thompson" <[e-mail]>
Subject: Shameful Legislation ALERT!

        *****PLEASE CROSS-POST AND DISTRIBUTE!!******

Do you get upset that your elected representatives routinely violate their
oaths of office and fail to uphold the Constitution?

Well, your legislators have come up with a perfect solution - no more oaths
of office, and no more guilt about violating them!

This piece of legislative garbage was passed _unanimously_ in committee and
is now on the consent calendar, which virtually guarantees a vote without
debate.  The legislative review found nothing unconstitutional at all about
this!

If you think that this is maybe not the ideal solution, make sure you let
your representatives know - NOW!   You can find out who your representative
is, and how to contact him/her at
http://www.le.state.ut.us/house/house.htm.  Or you can call the House
directly at 538-1029 and leave a message.

Thanks to Arnold Gaunt for the heads up!

Sarah Thompson
(speaking for myself only)


>Date: Wed, 11 Feb 1998 21:01:02 -0800
>From: "Arnold J. Gaunt" <[e-mail]>
>Reply-To: [e-mail]
>Organization: XMission
>X-Mailer: Mozilla 3.04Gold (Win16; I)
>To: [e-mail]
>Subject: Shameful Legislation
>
>This bill, by Rep. Koehn, is disgraceful in my view and worthy of
>repudiation.  It removes present appropriate criminal sanctions for
>failing to commit to the Constitution and creates a new civil process
>that places the burden on citizens.  It may have to become a subject of
>a resolution at the next URP convention if it passes.  I'd rather that
>this not happen.  Call your Representatives now and urge them to bury
>this contemptible legislation.
>
>http://www.le.state.ut.us/~1998/htmdoc/hbillhtm/HB0328.htm
>
>

- -

------------------------------

Date: Fri, 13 Feb 98 18:50:00 -0700
From: [e-mail] (SCOTT BERGESON)
Subject: Denny's

Very ambiguous wording. Is the word 'NOT' included in the alternative?
The technical interpretation is that the signs will NOT be taken down.
If Denny's funds anti-gun groups, that is good reason to continue the
boycott. I still abstain from HP computer equipment for that reason.

- ---------- Forwarded message ----------
From: [e-mail]
To: [e-mail]
Cc: [e-mail]
Subject: Denny's
Date: Thursday, February 12, 1998 6:43 PM

Quote: "this is official, Denny's policy regarding the signs is, the
signs will NOT go up or be taken down if they did go up." End quote.

Sorry folks, we don't see this as anything other than a compromise
situation. Nothing was won here. They, Denny's, has not rescinded an
anti-gun policy; all they've done is what the quote says about their
SIGNS; to wit: 'If the sign is up, we leave it up. However, we agree not
to put up any more signs.' How trite that _official_ policy is. At best
that's being disingenuous.

Denny's has not changed its negative corporate policy towards guns. In
fact, they danced aground the Mulberry bush with this in a _successful_
attempt to mollify gun owners. This is not a victory in our eyes.

We, in California, will continue to boycott Denny's until they sign on
board the Constitution in support of the Bill of Rights and cease
presenting the antis with checks for their agenda, and not a moment
sooner.

Someone out there is not doing their homework on who's supporting whom.
Plus they're signaling victory when the battle continues to be in
jeopardy on a larger front with this company.

Follow the money, ladies, follow the money.

Karen (Li) West



- -

------------------------------

Date: Sun, 15 Feb 1998 01:09:55 -0700
From: "S. Thompson" <[e-mail]>
Subject: Loose gun-control law leaves cities unarmed

As usual, they can't even get their facts straight.....


>Subject: Loose gun-control law leaves cities unarmed
>
>http://www.desnews.com/newcit/sa14diwa.htm
>
>>From the Deseret News, Feb. 14, 1998
>>
>>       Loose gun-control law leaves cities unarmed
>>       [Image]
>>       State says gun isn't 'loaded' till you pull trigger
>>       [Image]
>>
>>       [Image]
>>       Last updated 02/14/1998, 12:01 a.m. MT
>>
>>       By Alan Edwards
>>       Deseret News staff writer
>>
>>             Want to pack heat into City Hall? Feel free  it's perfectly
>>       legal.
>>             Even if you have bullets in your gun, you can waltz with
perfect
>>       confidence right through the doors of, say, the Salt Lake City-County
>>       Building, stroll past the signs declaring "Loaded firearms prohibited
>>       in this building," tip your hat to the ominous-looking, but in this
>>       case, helpless uniformed guards, and sit yourself down in City
Council
>>       chambers with a smile on your face.
>>             The most inconvenience your .45 might create, for you
anyway, is
>>       poking you in the leg when you sit down.
>>             You might think a gun with bullets in it would be a "loaded"
gun
>>       prohibited by the signs, but, legally, you would be wrong. According
>>       to state law a gun isn't considered loaded unless it takes only one
>>       physical action  namely, pulling the trigger  to discharge it. If
>>       the bullet isn't in the chamber and you have to cock the gun before
>>       pulling the trigger, it isn't loaded.
>>             State law prohibits firearms  loaded or not  in certain
places
>>       such as airports and schools. But municipal buildings aren't
included,
>>       and cities can't do anything about it.
>>             That's something Salt Lake City Attorney Roger Cutler isn't too
>>       happy about.
>>             "The proper role of cities is to provide refuge," he said in a
>>       speech Wednesday at the University of Utah Hinckley Institute.
"Cities
>>       should be able to deal with these issues."
>>             Even though Utah municipalities are charged with regulating the
>>       "health, safety and welfare" of their residents, their power to
>>       regulate firearms was largely taken away in 1994 by the Legislature.
>>       After a rash of shooting incidents in 1993, Salt Lake City enacted an
>>       ordinance much like the yet-to-come federal Brady Bill that imposed a
>>       mandatory background check on 18- to 25-year-olds trying to buy guns.
>>             The ordinance survived a court challenge, but the Legislature
>>       overrode the courts and took the cities' power away, placing the bulk
>>       of firearm regulatory power in the hands of the state.
>>             Now, Cutler said, cities can do nothing but sit back and hope
>>       some crazy doesn't take advantage of the loose laws.
>>             "We can say they can't discharge a firearm within city limits,
>>       and we can exclude 'loaded' firearms, but we can't regulate
>>       possession," he said. "We've been pre-empted."
>>             The high bench that Salt Lake City Council members sit behind
>>       has reinforced steel embedded in it, just in case somebody who
happens
>>       to have a gun on him decides he'd like to take a potshot at them.
>>       Judges don't have to deal with that  unlike cities, they legally can
>>       have metal detectors at the doors of their courtrooms.
>>             Let us go back to the late 1800s, Cutler says. Place: some wild
>>       and woolly frontier town  Abilene, say, or Dodge City. Situation: a
>>       clan of tough hombres armed to the teeth has pulled up to city
limits,
>>       determined to free their younger brother who's cooling his heels in
>>       jail after a brawl in the local saloon.
>>             The steely eyed local sheriff, standing alone in the dusty
>>       street, meets the crowd. One hand is on his pearl-handled six-gun,
and
>>       the other is pointing to the sign:
>>             "Check your guns."
>>             There is a moment of dangerous tension. The sheriff and clan
>>       leader face off, eyes narrowing, hands at the ready. The hot, still
>>       air crackles with deadly energy.
>>             Finally, the clan leader smiles, moves his hand away from his
>>       gun, and relaxes. He unbuckles his gun belt, motions his boys to do
>>       the same, and they ride into town for a drink.
>>             "The sheriff is a hero, right?" asks Cutler. He made his city a
>>       safer place. So why, in a supposedly more civilized world, has that
>>       authority been taken away?
>>             "We ought to be providing the means to local governments to
>>       achieve their objectives and not micromanaging their affairs," Cutler
>>       said. "There is a great deal of micromanaging done by the state."
>>             Cutler partly blames local governments for the situation. Many
>>       city officials don't "stake out their turf," and they accept state
>>       interference without protest.
>>             However it is regulated, by city or state, gun control is a
>>       guaranteed emotional issue in Utah. Some residents are wedded to
their
>>       guns the way others are wedded to their cars.
>>             As the bumper sticker says, "You can take my gun away when you
>>       pry it from my cold, dead fingers."
>>       [Image]
>>       [Image]
>>
>>       Return to front page
>> [Image]
>
>

- -

------------------------------

Date: Mon, 16 Feb 1998 15:07:16 -0700
From: "S. Thompson" <[e-mail]>
Subject: Oppose HB 328

The following letter was sent to the Salt Lake Tribune, [e-mail]
If you agree, please send your own letter.
Please also contact your Representative, and particularly Speaker of the
House Mel Brown.  He can best be reached by e-mail at [e-mail]

Thanks!
Sarah

Oppose HB 328

Rep. Susan Koehn and the members of the House Government Operations
Committee apparently believe that an oath of office is merely a formality.
They unanimously passed Koehn's HB 328, which removes criminal sanctions
for a legislator who refuses or neglects to take and file an oath of
office.  If this bill passes, a legislator may willfully refuse to take his
oath of office, and the only recourse available to citizens will be to file
a civil suit at their own expense.  This is exactly the same as declaring
that murder is illegal, but their are no criminal penalties for committing
murder, so the victim's family must file a suit in civil court to seek
restitution.

In this case it is the Constitution being murdered.  The United States
Constitution and the Utah Constitution are the two documents by which all
laws must be judged.  They are the foundations of our way of life.  Any
legislator who is not willing to pledge to uphold these sacred documents,
and do so with pride, does not deserve to serve the people of Utah.

Any legislator who votes for this bill is pubicly stating  that he or she
has no respect for our Constitution.  Citizens would do well to remember
these votes come November.

Sarah Thompson, M.D.



- -

------------------------------

Date: Tue, 17 Feb 1998 10:25:41 -0700
From: [e-mail] (Charles Hardy)
Subject: Legal opinion on UofU weapons ban

This is good news if we can now make the gov and UofU abide by it and
keep the legislature from caving to the media's and Gov. Mikey's
paranoid fantasies and making changes.



From <http://www.le.state.ut.us/>

A legislative legal opinion on the possession of concealed weapons in
state buldings and at the University of Utah was presented to the
Executive Offices, Criminal Justice, and Legislature Appropriations
Subcommittee, Monday, February 16.  The opinion, prepared at the
request of Co-chairs, Senator Michael Waddoups and Representative
Blake D. Chard, addresses the authority of the Department of Human
Resource Management and the University of Utah to restrict the
possession of firearms.

                          FORMAL OPINION No. 98-01


TO: Senator Michael G. Waddoups
Representative Blake D. Chard
Co-chairs, Subcommittee of Executive Offices, Criminal Justice, and the
Legislature

FROM: M. Gay Taylor, General Counsel
Tani Pack Downing, Associate General Counsel

DATE: February 16, 1998

SUBJECT: Regulation of Firearms


- ----------------------------------------------------------------------------

This formal legal opinion is in response to your letter of February 3, 1998.
For your convenience, the legal opinion includes: (1) an executive summary;
(2) a review of the relevant law; and (3) the analysis of how the relevant
law applies to the specific questions raised in your letter.
                            I. EXECUTIVE SUMMARY

QUESTION 1: Is the University of Utah ("University") policy prohibiting
students and faculty from possessing firearms on University premises, unless
authorized by the University, contrary to Utah law?

ANSWER 1: Yes.

QUESTION 2: Is the Department of Human Resource Management ("DHRM") rule(1)
prohibiting state employees from carrying firearms in state facilities,
state vehicles, or at any time while on state business, contrary to Utah
law?

ANSWER 2: Yes.

                              II. RELEVANT LAW

A. Constitutional Grant of Authority to Define Lawful Use of Firearms.

Article I, Section 6 of the Utah Constitution, which addresses the right to
bear arms, specifically grants to the Legislature the power to define the
lawful use of firearms. It provides:

The individual right of the people to keep and bear arms for security and
defense of self, family, others, property, or the state, as well as for
other lawful purposes shall not be infringed; but nothing herein shall
prevent the Legislature from defining the lawful use of arms.(2)

B. Legislature's Exercise of the Authority to Define the Lawful Use of
Firearms.

The Legislature has exercised its authority to define the lawful use of
firearms through the adoption of a comprehensive statutory framework
governing weapons. The Legislature expressly states that key to the exercise
of its constitutional authority is the adoption of uniform laws. Section
76-10-501 provides:

(1)(a) The individual right to keep and bear arms being a constitutionally
protected right, the Legislature finds the need to provide uniform laws
throughout the state. Except as specifically provided by state law . . . .

(b) This part is uniformly applicable throughout this state and in all its
political subdivisions and municipalities. . . .(3)

C. Limited Delegation by the Legislature of the Regulation of Firearms.

The Legislature provides for the delegation of the regulation of firearms in
only very limited circumstances where the delegation is express, stating
that:

Except as specifically provided by state law, a citizen of the United States
or a lawfully admitted alien shall not be:

(i) prohibited from owning, possessing, purchasing, transporting, or keeping
any firearm at his place of residence, property, business, or in any vehicle
under his control; or

(ii) required to have a permit or license to purchase, own, possess,
transport, or keep a firearm.

(b) This part is uniformly applicable throughout this state and in all its
political subdivisions and municipalities. All authority to regulate
firearms shall be reserved to the state except where the Legislature
specifically delegates responsibility to local authorities. Unless
specifically authorized by the Legislature by statute, a local authority may
not enact or enforce any ordinance, regulation, or rule pertaining to
firearms."(4)

This statute demonstrates the Legislature's clear intent to maintain for
itself the exclusive authority to regulate in the area of weapons, except
where the Legislature formally acts to delegate that authority.

We are aware of only limited circumstances where the Legislature through
statute has specifically delegated rulemaking authority regarding weapons to
any agency or political subdivision. For example, the commissioner of the
Department of Public Safety may issue rules to administer the Concealed
Weapon Act.(5) A second example permits certain persons to make rules that
address training and requalification requirements in addition to concealed
firearm permit requirements.(6)

1. Limits on Administrative Rulemaking. Although in general the Legislature
may delegate some legislative power to political subdivisions or agencies
through statute,(7) rulemaking authority delegated to administrative
agencies or political subdivisions is limited and defined by the statute
conferring the power.(8) Therefore, under general principles governing
delegation of rulemaking authority, in the absence of a specific authority
to regulate use of firearms, an agency or political subdivision does not
have the power to issue rules related to the use of firearms.

Moreover, in the case of regulating firearms, general rules of statutory
construction negate the argument that general rulemaking authority allows an
agency or political subdivision to regulate use of firearms. Under rules of
statutory construction, a specific statute will govern over a general
statute.(9) Although both the University and DHRM have been given general
rulemaking authority, these general grants of authority do not mention the
regulation of firearms. In contrast, the Utah Constitution provides that the
Legislature shall "define the lawful use of

arms."(10) It has done so in Section 76-10-501 which has "reserved to the
state"(11), and specifically to the Legislature, the authority to regulate
firearms. Thus, the specific reservation of firearm regulation in Section
76-10-501 governs over the general statutes granting general rulemaking
authority to the University and to DHRM.

2. State Preemption of the Regulations of Firearms.(12) By reserving to the
Legislature all authority to regulate firearms unless the Legislature
"specifically" delegates this authority, the Legislature preempts regulation
by other governmental entities.(13) As illustrated by recent legislative
action, the Legislature is aware of and has sought to protect this
preemption. In the 1995 bill that amended Section 76-10-501,(14) the long
title stated that the bill was "AN ACT . . . PROVIDING STATE PREEMPTION OF
WEAPONS AREA."(15)

The Legislature has preempted the weapons area by prescribing: (a) where and
when a person is restricted from possessing(16) a firearm; (b) where and
when a person may not be restricted from possessing a firearm; and (c) the
criteria necessary for a person to carry a concealed firearm with a valid
permit.

a. Where and when a person is restricted from possessing a firearm. The
Legislature has addressed restrictions on the possession of firearms in two
ways: those that apply specifically to concealed firearm permit holders, and
those that apply to persons other than concealed firearm permit holders.

We will first address restrictions the Legislature has placed on concealed
firearm permit holders. Reading Sections 53-5-704 and 53-5-710 as a whole,
the Legislature evidences its intent that a concealed permit holder be able
to carry a concealed firearm except in the areas in which the Legislature
specifically indicates a restriction. The relevant portion of Section
53-5-704 provides that the "permit is valid throughout the state, without
restriction." Section 53-5-710 states:

A person with a permit to carry a concealed firearm may not carry a
concealed firearm in the following locations:

(1) any secure area prescribed in Section 76-10-523.5 in which firearms are
prohibited and notice of the prohibition posted; and

(2) in any airport secure area as provided in Section 76-10-529.(17)

In the provisions of the secure areas and airport statutes referred to in
Section 53-5-710, the Legislature specifically states that even a person
licensed to carry a concealed firearm is subject to the firearm restrictions
contained in those sections.(18)

For persons other than concealed firearm permit holders, the Legislature
specifically provides other firearm prohibitions when it considers them
necessary. For example, the Legislature prohibits firearms in areas, such as
"on or about school premises"(19) and, if the firearm is loaded, in a
vehicle, on a public street, or in a posted prohibited area.(20) Although
the Legislature provides a general prohibition on firearms in these areas,
the Legislature specifically exempts concealed firearm permit holders from
the restriction.(21) These sections again illustrate that the Legislature,
when it considers necessary, provides specific restrictions on where and
when a firearm can be possessed by a person, including a person with a
permit to carry a concealed firearm.

b. Where and when a person may not be restricted from possessing a firearm.
In exercising its preemption of the weapon area, the Legislature also
specifically indicates where and when a person may not be restricted from
possessing a firearm except by specific statute. Section 76-10-501 provides:

(1)(a) . . . . Except as specifically provided by state law, a citizen of
the United States or a lawfully admitted alien shall not be:

(i) prohibited from owning, possessing, purchasing, transporting, or keeping
any firearm at his place of residence, property, business, or in any vehicle
under his control; or

(ii) required to have a permit or license to purchase, own, possess,
transport, or keep a firearm. . . . .(22)

Section 76-10-501 addresses generally where firearms cannot be restricted
unless specifically provided by state law. In addition, the Legislature has
stated that concealed firearm permit holders be permitted to carry their
concealed firearms "throughout the state, without restriction"(23) except in
the areas the Legislature listed in Section 53-5-710. Those statutes create
a specific acknowledgment of protection for a permit holder to carry a
concealed firearm that cannot be overcome without specific authorization
from or restriction by the Legislature.

c. The criteria necessary for a person to a obtain a permit and carry a
concealed firearm. In the Concealed Weapon Act,(24) the Legislature
established specific criteria necessary for a person to obtain a permit to
carry a concealed firearm. The Legislature did not provide or allow for the
addition of any additional criteria by an agency or political subdivision
without specific legislative authorization. This evidences the Legislature's
intent that the criteria in the Concealed Weapon Act be exclusive. In the
absence of any legislative delegation to an agency or political subdivision
to add additional criteria for the right to carry a concealed firearm, any
attempt to do so by an agency or political subdivision is invalid.

Therefore, in order for an agency or political subdivision to regulate the
use of firearms, there must be specific legislative grant of authority that
does not contravene areas preempted by legislative action. Applying these
principles to the University policy and DHRM rule shows that the
prohibitions on firearms enacted by these entities are contrary to state
law.

                                III. ANALYSIS

A. The University of Utah policy which prohibits students and faculty from
possessing firearms on University premises, unless authorized by the
University, is contrary to Utah law.

The Board of Trustees of the University, in policy 8-10, provides that
students will be "subject to disciplinary action" for "possession or use on
University premises or at University activities of any firearm or other
dangerous weapon . . . unless such possession or use has been authorized by
the University."(25) On October 10, 1997, Interim President Jerilyn S.
McIntyre issued a memorandum "extending the prohibition on the possession or
use on campus of any firearm or other dangerous weapon to all University
employees, including faculty."(26) These prohibitions are contrary to Utah
law in two respects: (1) the Legislature has not delegated specific
rulemaking authority to the University to regulate firearms; and (2) the
University policy is preempted by the Legislature's regulation of firearms.

1. The Legislature has not delegated specific authority to the University to
regulate firearms. Subsection 76-10-501(1)(b) requires that in order for a
political subdivision to regulate the use of firearms, the Legislature must
expressly allow for the regulation by statute.(27) Under Subsection
53B-3-106(2), "institutions of higher education are 'political subdivisions'
and the board of the institutions is a 'local authority.'"(28) Therefore, as
a political subdivision, the University can only issue a policy regulating
the use of firearms if the University is expressly authorized by the
Legislature to take such action.

To our knowledge, the University has cited no statutes authorizing it to
promulgate its weapons policy for students. In extending the weapons
prohibition to the faculty, Interim President McIntyre relied on Section
53B-2-106 as the authority to make such a rule.(29) Section 53B-2-106 is
general in nature -- only granting rulemaking authority to the president of
each institution for the administration and operation of the institution.
Because Section 53B-2-106 contains no specific grant of authority to
regulate weapons on campus, it does not authorize this University policy. We
know of no other statute that authorizes the University to regulate firearms
and therefore any attempt to do so is contrary to Utah law.

2. The University policy is preempted by the Legislature's regulation of
firearms. The Legislature preempts the conduct addressed by the University
policy by prescribing: (a) where and when a person is restricted from
possessing a firearm; (b) where and when a person may not be restricted from
possessing a firearm; and (c) the criteria necessary for person to carry a
concealed firearm with a valid permit.

a. Where and when a person is restricted from possessing a firearm. The
Legislature has specifically provided by statute that a firearm may not be
possessed on or about school premises, except by certain individuals
specifically exempted by the section.(30) Although the definition of a
school may extend to colleges and universities as a postsecondary
institution,(31) the University policy is unenforceable because the
University attempts to regulate the possession of a firearm on or about
school premises beyond what the Legislature provided in statute.(32)
Further, the University's extension of its firearm restrictions to persons
with a license to carry a concealed firearm directly contravenes the
Legislature's express exemption for permit holders on or about school
premises.(33)

b. Where and when a person may not be restricted from possessing a firearm.
Subsection 76-10-501(1)(a)(i) provides that a citizen cannot be "prohibited
from owning, possessing, purchasing, transporting, or keeping any firearm at
his place of residence, property, business, or in any vehicle under his
control."(34) The University policy prohibits possession of a firearm on
University premises. Thus, it attempts to prohibit firearms in student
residences and in vehicles on campus. This prohibition is directly contrary
to Subsection 76-10-501(1)(a)(i).

Additionally, unless specifically restricted by statute, the Legislature has
stated that a concealed firearm permit is "valid throughout the state
without restriction."(35) Section 53-5-710 lists where a permit holder may
not carry a firearm, and state university property is not included in that
list. Further, the Legislature specifically exempted concealed firearm
permit holders from the prohibition of possessing a firearm on or about
school premises.(36) Therefore, the University's attempt to prohibit
concealed firearm permit holders from carrying a firearm at the University
directly contravenes the Legislature's express exemption for permit holders.

c. The criteria necessary for a person to a obtain a permit and carry a
concealed firearm. The Legislature has provided an exclusive list of
criteria for a concealed firearm permit holder to obtain a permit to carry a
concealed firearm.(37) The Legislature has not authorized a political
subdivision to add to this list. Therefore, because the University has no
specific authority to make rules concerning firearms, it lacks authority to
impose additional requirements on concealed weapon holders to seek
authorization from the University to carry their firearms on campus.
Examples of additional requirements included in the University policy that
are invalid include: the requirement that in order for a person to possess a
firearm "such possession or use [has to be] authorized by the
University";(38) the subsequent statement that authorization to possess a
firearm on campus will only be given "if the individual is an off-duty
police officer or if the individual has received threats on his/her life and
has obtained a protective order";(39) and the requirements that a person
must "hold the appropriate license or permit, undergo a criminal background
check, and provide appropriate training certification."(40)

B. The Department of Human Resource Management rule prohibiting state
employees from carrying firearms in state facilities, state vehicles, or at
any time while on state business, is contrary to Utah law.

In November 1995, DHRM promulgated R477-9-1(5), which provides that
"[e]mployees shall not carry firearms in any facility owned or operated by
the state, or in any state vehicle, or at any time or any place while on
state business."(41) The rule provides an exception for sworn officers and
employees whose assigned duties require them to use a firearm. An employee
who violates the prohibition is subject to disciplinary action. The DHRM
rule is contrary to Utah law in two respects: (1) the Legislature has not
delegated specific rulemaking authority to the DHRM to regulate firearms;
and (2) the rule is preempted by the Legislature's regulation of firearms.

1. DHRM does not have the authority to regulate the use of firearms.
Consistent with the analysis applied to the University under Section
III.A.1. of this legal opinion, in the absence of a specific statutory grant
of authority, an agency may not regulate the use of firearms. When DHRM
enacted R477-9-1(5), it cited Section 67-19-6 as its statutory grant of
authority to make the rule.(42) Section 67-19-6 requires the director of
DHRM to "develop, implement, and administer a statewide program of personnel
management for state employees" and authorizes the director to "adopt rules
for personnel management according to the procedures of Title 63, Chapter
46a, Utah Administrative Rulemaking Act."(43) This statute gives no specific
authority to DHRM to regulate weapons.

When later asked for a statutory basis for the rule, the Governor's General
Counsel referred to Sections 34A-2-301 and 67-19-18, each dealing with
workplace safety.(44) These sections merely address an employer's
obligations to maintain a safe place of employment and do not grant specific
authority to DHRM or to the governor to regulate weapons.(45)

The statutes cited by DHRM and the Governor's General Counsel do not give a
specific grant of authority to DHRM to regulate firearms. We know of no
statute authorizing DHRM to regulate use of firearms, and therefore DHRM may
not regulate the use of firearms.

2. The DHRM rule is preempted by the Legislature's regulation of firearms.
Following the analysis applied to the University under Section III.A.2. of
this legal opinion, the rule is preempted by the Legislature's action
prescribing: (a) where and when a person is restricted from possessing a
firearm; and (b) where and when a person may not be restricted from
possessing a firearm.(46)

a. Where and when a person is restricted from possessing a firearm. As
outlined earlier, concealed weapon permits are "valid throughout the state,
without restriction"(47) except where the Legislature has expressly
restricted the possession of a firearm. The Legislature has listed(48) two
specifically designated locations where permit holders may not carry their
firearms -- in "secured areas"(49) and in "airport secured areas."(50) State
building and vehicles are not "secured areas" as provided in these sections.
Therefore, any attempt by DHRM to prevent concealed weapon permit holders
from carrying their weapon in these areas is an unauthorized attempt to
regulate firearms.

b. Where and when a person may not be restricted from possessing a firearm.
The DHRM rule directly contravenes the Legislature's directive that a
citizen cannot be prohibited from possessing any firearm at his "place of .
. . business, or in any vehicle under his control."(51) "Place of business"
is defined by Black's Law Dictionary as a place "where one carries on his
business or employment." Thus, a state employee cannot be prohibited from
possessing a firearm at his place of business even if it is a state owned
building or facility. Additionally, a state employee cannot be prohibited
from possessing a firearm in a state vehicle if the vehicle is under the
employee's control.(52) Thus, the DHRM rule is invalid because it is in
direct conflict with the Legislature's statutory directive that a person not
be prohibited from possessing a firearm at his residence, business, or in a
vehicle under his control.

Regarding a person licensed to carry a concealed permit, unless specifically
restricted by statute, the Legislature has stated that a concealed firearm
permit be "valid throughout the state, without restriction."(53) The
Legislature has listed restrictions on a concealed firearm permit holder's
ability to carry a concealed firearm in Section 53-5-710. The Legislature
did not restrict in that list an employee who is a concealed firearm permit
holder from possessing a firearm in state buildings or facilities, a state
vehicle, or while on state business. Therefore, DHRM's attempt to prohibit a
concealed firearm permit holder from carrying a firearm in a state building
or facility, a state vehicle, or while on state business directly
contravenes the Legislature's statutory directives and is invalid.


                               IV. CONCLUSION

The Utah Constitution grants power only to the Legislature to define the
lawful use of arms. The Legislature has exercised this power
comprehensively, delegating the right to regulate the use of firearms in
only limited situations. Thus, the Legislature has preempted regulation by
an agency or political subdivision that is not expressly permitted by
statute. Because the Legislature has not delegated any authority to the
University or to DHRM to regulate firearms, their attempt to do so through
the University policy and the DHRM rule are contrary to state law.

Consistent with your February 3, 1998 request, this legal opinion addresses
only whether the University policy and the DHRM rule are contrary to state
law. This opinion does not address the public policy issues related to
prohibiting the possession of firearms in the areas specified by the policy
and rule in question. However, as this legal opinion makes clear, if there
are any changes to be made in the policies pertaining to the lawful use of
arms, those decisions rest squarely with the Legislature.

1. Although your letter indicated that the "governor has prohibited state
employees from the possession of weapons in state buildings," the
prohibition was derived from the rule promulgated by DHRM.

2. Utah Const. art. I, º 6 (emphasis added).

3. Utah Code Ann. º 76-10-501 (Supp. 1997) (emphasis added). Unless the
context indicates otherwise, any reference to a "section" in the text of
this legal opinion is to a section of the Utah Code Annotated (1953).

4. Utah Code Ann. º 76-10-501(1) (Supp. 1997) (emphasis added).

5. Utah Code Ann. º 53-5-704(12) (Supp. 1997).

6. See Utah Code Ann. º 53-5-711 (Supp. 1997). The statute permits
rulemaking by: the Board of Pardons and Paroles for its members; the
Judicial Council for judges; and the district attorney, the county attorney
in a county not in a prosecution district, the attorney general, or the city
attorney by policy for prosecutors under their jurisdiction.

7. See, 2 Am Jur 2d Administrative Law º 152 (1994).

8. See, Id.

9. See, Sutherland Stat Const º 40.02 (5th ed. 1993).

10. Utah Const. art. I, º 6.

11. Utah Code Ann. º 76-10-501 (1997).

12. In State v. Hutchinson, 624 P.2d 1116, 1121 (Utah 1980), the Utah
Supreme Court stated that "an ordinance is invalid if it intrudes into an
area which the Legislature has preempted by comprehensive legislation
intended to blanket a particular field." Preemption also applies to areas
such as this where "the nature of the subject matter itself requires uniform
state regulation." Id. at 1127.

13. Utah Code Ann. º 76-10-501 (1997).

14. See H.B. 54, 49th Leg., Gen. Sess., 1995 Utah Laws.

15. Id.

16. For purposes of this legal opinion, the term "possessing" encompasses
the following terms used in Subsection 76-10-501(1)(a)(i), "owning,
possessing, purchasing, transporting, or keeping."

17. Utah Code Ann. º 53-5-710 (Supp. 1997).

18. Utah Code Ann. º 76-10-523.5 (1997) states "[a]ny person, including a
person licensed to carry a concealed firearm . . . shall comply with any
rule established for secure facilities" (emphasis added). Utah Code Ann. º
76-10-529 states "[w]ithin a secure area of any airport . . . a person,
including a person licensed to carry a concealed firearm, is guilty of"
(emphasis added).

19. Utah Code Ann. º 76-10-505.5 (Supp. 1997) states that " [a] person may
not possess any . . . firearm . . . on or about school premises." "On or
about school premises" as defined by Section 76-3-203.2 includes in or on
the grounds of any public or private elementary, secondary, vocational, or
postsecondary school or institution. No definition exists in the code for
"postsecondary school or institution"; however "postsecondary education" is
defined in Section 53B-5-103 as "education or educational services offered
primarily to persons who have completed or terminated their secondary or
high school education or who are beyond the age of compulsory school
attendance." Utah Code Ann. º 53B-5-103 (1994). Although not entirely clear,
it seems possible that the prohibition on firearms may extend to
universities. Regardless, in Section 76-10-505.5 the Legislature
specifically provides an exemption for concealed permit holders to the
firearm prohibition on or about school premises.

20. See, Utah Code Ann. º 76-10-505 (1995).

21. See, Utah Code Ann. º 76-10-505.5(3) (Supp. 1997); see also, Utah Code
Ann. º 76-10-523(2) (Supp. 1997).

22. Utah Code Ann. º 76-10-501 (Supp. 1997).

23. Utah Code Ann. º 53-5-704(1) (1994).

24. Utah Code Ann., Title 53, Chapter 5, Part 7 (1994 and Supp. 1997).

25. University of Utah Policy and Procedures Manual; Policy: 8-10, Rev.: 3
(July 14, 1993). In addition to addressing possession on campus, the
University policy covers University activities. University activities may
take place off of the university campus. Extending the university policy to
these settings heightens the likelihood that the policy is contrary to state
law because of the breadth of its impact.

26. Memorandum of Interim President Jerilyn S. McIntyre, October 10, 1997.
For purposes of this legal opinion, the term "University policy" includes
both policy 8-10 and the memorandum issued by Interim President McIntyre.

27. Subsection 76-10-501(1)(b) provides that "unless specifically authorized
by the Legislature by statute, a local authority may not enact or enforce
any ordinance, regulation, or rule pertaining to firearms." Utah Code Ann. º
76-10-501(1)(b) (Supp. 1997).

28. Utah Code Ann. º 53B-3-106(2) (1997). As used hereinafter in this legal
opinion, the term "political subdivision" includes the board of the
institution which is a "local authority."

29. See, Memorandum of Interim President Jerilyn S. McIntyre, October 30,
1997.

30. See, Utah Code Ann. º 76-10-505.5 (Supp. 1997).

31. Supra, at note 19 discussion.

32. See, Utah Code Ann. º 76-10-505.5 (Supp. 1997).

33. Utah Code Ann. º 76-10-505.5(3) (Supp. 1997).

34. Utah Code Ann. º 76-10-501(1)(a)(i) (Supp. 1997).

35. Utah Code Ann. º 53-5-704(1) (1997).

36. Utah Code Ann. º 76-10-505.5(3) (Supp. 1997).

37. See, Utah Code Ann. ºº 53-5-704 and 53-5-710 (Supp. 1997).

38. University of Utah Policy and Procedures Manual, Policy: 8-10, Rev.: 3
(July 14, 1997).

39. Memorandum of Interim President Jerilyn S. McIntyre, October 10, 1997.

40. Id.

41. Utah Admin. R477-9 (1995).

42. Id.

43. Utah Code Ann. º 67-19-6 (1996).

44. See, Minutes of the Administrative Rules Review Committee, 51st Leg.,
November 3, 1997.

45. See, Utah Code Ann. º 34A-2-301(1)(a)-(b) (1997) and º 67-19-18(4)
(1996). DHRM has proffered no evidence that the rule is necessary for it to
maintain a safe work environment.

46. Because the DHRM rule did not impose additional criteria for the
possession of firearms, the criteria portion of the preemption analysis
applied to the University is not applicable to DHRM.

47. Utah Code Ann. º 53-5-704(1) (Supp. 1997). The Governor's General
Counsel has suggested the phrase "[a concealed weapon] permit is valid
throughout the state, without restriction" means that the permit may be
taken anywhere, without restraint; however, the possession of the concealed
weapon may be further restricted. This interpretation seems to be an
artificially strict reading of the statute and contradicts legislative
action in Section 53-5-710 which gives the exclusive list of locations where
"[a] person with a permit to carry a concealed firearm may not carry a
concealed firearm . . . ." Utah Code Ann. º 53-5-710 (Supp. 1997).

48. Utah Code Ann. º 53-5-710 (Supp. 1997).

49. Utah Code Ann. º 76-10-523.5 (Supp. 1997).

50. Utah Code Ann. º 76-10-529 (Supp. 1997).

51. Utah Code Ann. º 76-10-501(1)(a)(i) (Supp. 1997). In addition to
prohibiting the possession of a firearm in a state building or facility or
in a state vehicle, the DHRM rule prohibits a state employee from possessing
a firearm "while on state business." Utah Admin. R477-9 (1995). With the
advent of telecommuting, this rule may prohibit a state employee from
possessing a firearm at his own residence "while on state business." This
application clearly contradicts Section 76-10-501. The breadth of this rule
heightens the possibility that it prohibits the legitimate possession of a
firearm in a manner contrary to the Legislature's specific directives.

52. Utah Code Ann. º 76-10-501(1)(a)(i) (Supp. 1997)

53. Utah Code Ann. º 53-5-704(1) (Supp. 1997).



- --

Charles C. Hardy        | If my employer has an opinion on
<[e-mail]>            | these things I'm fairly certain
801.588.7200 (work)        | I'm not the one he'd have express it.

"The right of the people to keep and bear arms shall not infringed; a
 well armed, and well regulated militia being the best security of a free
 country: but no person religiously scrupulous of bearing arms shall be
 compelled to render military service in person." - [This was Madison's
 original proposal for the "Second Amendment" -- James Madison, I Annuals
 of Congress 434 (June 8, 1789).

- -

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