Thursday, January 13, 2011

Legislators and guns in public buildings

Update on 1/14 -

After I wrote this post yesterday, KPHO (Phoenix channel 5) posted a piece on this same subject. 

From that piece -
Senate President Russell Pearce of Mesa told CBS 5 News that even though the signs are up, there has always been a "don't ask, don't tell policy" when it comes to lawmakers carrying weapons.
Wonder if he got that phrase from reading this post?  :)

End edit...

State law prohibits guns from being carried into public buildings, however, the state Legislature is allowed to have its own rules.
Slightly obscured by the hubbub of the week was the fact that at least one legislator, Sen. Lori Klein (R-LD6), had a firearm in her possession on the floor of the House during the Governor's speech on Monday.

From the Arizona Republic, written by Mary Jo Pitzl -
New state Sen. Lori Klein brought a special guest to the state Capitol Monday, and it wasn't Joe the Plumber, the subject of her first news release.

It was her .38 special, which she carried in her purse.

“I pack,” the Anthem Republican said. “Our safety is our personal responsibility.”

Klein carried the gun with her at the Senate, and then to the House, where the chamber was crammed with 90 lawmakers, their families and friends, the Supreme Court justices, dignitaries from across Arizona and others, all awaiting Gov. Jan Brewer's State of the State speech, which had a somber, reflective tone in light of the mass shooting in Tucson.


House Speaker Kirk Adams, R-Mesa, said he was unaware that Klein had entered the House floor with a gun, and declined to comment on the matter.

House rules, he said, are silent on the issue of whether members can carry guns on the floor.

Klein, who took the oath of office Monday, said she believes lawmakers aren't subject to gun restrictions.

“We're exempt, so we can carry,” she said.
"Exempt"?  Really??  It doesn't seem so, well, not exactly anyway.

Caveat regarding what I'm about to write:  I am NOT a lawyer, just a reasonably intelligent layman who is taking the time to research the laws in Arizona.  I freely concede that I could have missed something significant.  For example, I don't have access to case rulings, nor do I even have access to WestLaw to begin even basic research in that area.  All of what follows is based on reading the text of applicable laws and provisions in the Arizona Constitution.

The applicable section of the Arizona Revised Statutes (ARS) seems to be Title 13 (Criminal Code), Chapter 31.

ARS 13-3102 states -
A. A person commits misconduct involving weapons by knowingly:


10. Unless specifically authorized by law, entering any public establishment or attending any public event and carrying a deadly weapon on his person after a reasonable request by the operator of the establishment or the sponsor of the event or the sponsor's agent to remove his weapon and place it in the custody of the operator of the establishment or the sponsor of the event for temporary and secure storage of the weapon pursuant to section 13-3102.01.


K...Misconduct involving weapons under subsection A, paragraph 1, subdivision (b) of this section or subsection A, paragraph 10 or 11 of this section is a class 1 misdemeanor.


L. For the purposes of this section:


2. "Public establishment" means a structure, vehicle or craft that is owned, leased or operated by this state or a political subdivision of this state.

I cannot find any section of the ARS that "authorizes" or exempts from this section legislators solely by virtue of being legislators.  Individual legislators may fall into one or another exemption because of some other criteria (retired law enforcement?), but legislators as a group do not seem to have an exemption.  There does seem to be a little wiggle room in the language "after a reasonable request by the operator of the establishment."

Other than Monday, I've never seen anyone who was screened prior to entering the House or the Senate, nor have I ever seen someone asked if they were carrying a weapon.  If no one on the operations staff asks a legislator if they're "packing heat", and the legislators don't tell anyone, there may not be a violation under this section.

Call it Arizona's version of "Don't Ask, Don't Tell."

Of course, Arizona's legislators keep "telling."

However, even that possible loophole isn't actually an *exemption*.

It's more a "wink and a nod."

Other folks brought to my attention clauses in the Arizona Constitution that might provide an "exemption" cover for Klein and the other "pistol packin' " legislators.  They don't seem to, to me anyway, but you be the judge.

Article 4, Part 2, Section 8 of the AZ Constitution states -
Each house, when assembled, shall choose its own officers, judge of the election and qualification of its own members, and determine its own rules of procedure.
I'm pretty sure that the rules of procedure for each chamber of the legislature don't supercede the state's criminal code, but even if they did, the rules for each chamber don't broach this subject.

The closest thing to an actual exemption that I could find was in Article 4, Part 2, Section 6 -
Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.
Since the act of possessing a weapon in a "public establishment," like one of the legislative buildings, is a class one misdemeanor under ARS 13-3102 and, as someone who was sitting less than 10 feet away from Senator Klein on the House floor during Monday's activities, I can say that she sat peacefully (not sure what the technical definition of "breach of the peace" is, but I'd be surprised if she committed one on Monday), this section seems to have some relevance, but stops short of an outright exemption.

Based on that provision of the AZ Constitution, she (and the other carriers in the lege) seem to be immune from *arrest* for a misdemeanor, but I can't find anything that immunizes them from *prosecution.*  A citation, summons, and fine wouldn't seem to violate the immunization from arrest clause.

I can understand the practical reasons why the Arizona Capitol Police don't want to cite a sitting legislator for something like this (talk about kicking over a political hornet's nest!), but even they shouldn't be expected to protect legislators from their own verbal diarrhea.

Any lawyers reading this are welcome, even requested, to provide clarifications and corrections to what I've written.  Please provide links in your comments. 


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