Opinion : The things that are wrong with Benton County\'s new firearms prohibition

On Tuesday, January 11, 2011, the Benton County Board of Supervisors passed resolution #11-2, Prohibition of Firearms and Dangerous Weapons in and on Benton County Buildings and Property.  Iowa Code 724.28 prohibits the board from writing ordinances related to weapons so there is no “patch-work” across the state and all laws and rules are applied equally.  The Supervisors chose to create a resolution instead.  The resolutions states:

“BE IT THEREFORE RESOLVED that all firearms and other dangerous weapons are prohibited in or on all buildings and property that is owned, leased, or occupied by Benton County, including but not limited to the courthouse, all county office buildings and property outside the courthouse, and with the exceptions previously adopted by the Benton County Conservation Board.

BE IT FURTHER RESOLVED that persons who have a valid professionalpermit to carry weapons are exempt from this resolution.  [emphasis added]

BE IT FURTHER RESOLVED that persons acting in violation of this policy shall be subject to prosecution for criminal trespass.”

Those conservation board exceptions are:

• Designated hunting areas in county parks during the appropriate hunting seasons.
• Registered participants in Hunter Safety classes held at county parks or in county buildings by the Benton County Conservation Board or by other organizations or persons approved by the Conservation Board.

Seems simple enough.  In fact, County Attorney Dave Thompson was quoted in Vinton Today on January 11 that the new resolution is “user-friendly and gun-right” friendly.  But I believe we need to look at the definition of dangerous weapons. 

702.7 Dangerous Weapons

A "dangerous weapon" is any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed.  Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon.  Dangerous weapons include, but are not limited to, any offensive weapon, pistol, revolver, or other firearm, dagger, razor, stiletto, switchblade knife, or knife having a blade exceeding five inches in length.  

Although I admit to being picked up for speeding, I have no other citations, arrests, or convictions.  I’m a pretty law-abiding guy.  In fact, I’m a former Benton County Deputy Sheriff.  This new resolution makes me a criminal if I repeat any of the following scenarios which have actually happened to me.

Situation One

I am a long-time Boy Scout Leader and continue to be involved in the Scouting program.  I became a certified firearms instructor  by the Boy Scouts of America several years ago and sought donations to purchase BB Guns and archery equipment for the local Cub Scout pack to start a shooting program.  Another leader and I took a group of 9 year-olds to the Izaak Walton shooting range to teach safe gun handling and marksmanship.  At the conclusion of the program, we hiked the Dudgeon Wildlife Area.  I parked my van next to the county conservation maintenance building while we hiked.  If I were to do that today, the boys would be left on the hike alone as I would be arrested for Criminal Trespass for having the BB guns and bows in the vehicle on county property.

Situation Two

A few years ago, while lawfully hunting, I turned around in the drive of the maintenance building north of Keystone.  Obviously, I had an unloaded, cased shotgun in my truck.  Today, I would be arrested tor Criminal Trespass since I had a gun in my vehicle on county property.

Situation Three

I have been a hunter education instructor for over twenty years and served as the Chief Instructor in Benton County for nearly fifteen years.  At a class a few years ago, we arranged to shoot in a grassland area east of Vinton, owned by the county.  A mother of one of the students had never shot a firearm so I assisted her in firing a muzzleloader.  She truly enjoyed that experience but today, since she was not a registered participant in the class, she would be arrested for Criminal Trespass.

Situation Four

At a boy scout camporee at Hannen Lake, the boys were having a great time fishing and about 20 of the leaders were helping the boys and teaching them how to clean fish.  The fillet knives we used have a seven inch blade.  Today, we’d all be arrested for Criminal Trespass.

Situation Five

I am a paramedic and have a “self-obligated” duty to act.  A few years ago, I saw a commotion near the benches in the south-west corner of the courthouse lawn.  It was apparent that a person was lying on the ground.  I happened to be legally carrying a handgun that day, yet I stopped to help until the ambulance arrived.  Today, I’d be arrested for Criminal Trespass.

Do these incidents and the arrests seem far-fetched?  Probably, but the fact is, the resolution passed by the Supervisors is very clear.  I’m sure that they would never want to be accused of being arbitrary and capricious so an arrest would be made in the event of any one of these situations.

So why the sudden change in policy without public input?  According to one of the Supervisors on January 12, “the recent law change has made it very simple for someone to secure a permit”.  Just one day before the resolution was passed, Benton County Sheriff Randy Forsyth was quoted in Vinton Today saying “Benton County has basically been a ‘shall issue’ county for several years”.  He went on to say that he has only turned down two applications in the past several years.

It can easily be argued that of all the people in the courthouse or on other county property, the people with a permit to carry firearms (Iowa Code 724.8) are the only ones who:

• Over age 21
• Are not addicted to alcohol
• Are not likely to use a weapon unlawfully or in such a manner as would endanger
• Are not a felon
• Are not adjudicated mentally ill
• Are not convicted of domestic abuse
• Has not been convicted of serious or aggravated misdemeanor in last 3 years
• Has met federal requirements for shipping, transporting, possessing, receiving firearms

The Supervisor also stated that “the new law doesn’t afford the county ‘home rule’ in these areas so we are limited as to how we handle foreseen and unforeseen problems.”  One “foreseen” problem I see is people who are legally carrying a concealed firearm will now be unarming on the street in front of the courthouse.  Certainly this will cause fear in the public when they see a person on the street with a firearm in hand.  Another foreseen problem is there is a greater risk for an accidental discharge of that firearm when it is unholstered and being handled.  I personally know of three such instances among Benton County peace officers when I was a deputy in Benton County (none of them involving me!).

The “unforeseen” problems?  In 1997, the state of Oregon had 14,000 residents with permits to carry and only four of them were convicted for being involved in criminal activity (which wasn’t necessarily violent).  In 1999, Texas adopted a law similar to the new law in Iowa.  They found that those who had a permit to carry a firearms were 5.7 times less likely to be arrested for a violent crime and 13.5 times less likely to be arrested for a non-violent offense. The City of El Paso, Texas, in 2010, had issued 16,772 permits and only six of those were revoked…and not one was for a violent case.

The Supervisor went on to say that there have been “different departments in the courthouse threatened with violence in the recent years along with various disputes relating to court matters”.  I fully understand.  In fact, I am an Airport Commissioner for the city of Vinton.  The Commission took action against a tenant who was not pleased.  Several weeks later, the former tenant was at the airport and started a quarrel.  As I train in my gun safety classes, I retreated but I was followed.  The verbal threats continued and I tried to defuse the problem, as I teach in the class.  The former tenant then assaulted me.  I simply left the scene, called 911 and the police arrested the perpetrator.  I could have drawn my gun but that would have been a very bad choice.  I teach that in self-defense, nothing is worth shooting that isn’t worth dying for.

The situation could have been much different if the perpetrator had a firearm or dangerous weapon, as I’m sure the Supervisor was alluding to.  Had the incident been on county property, being a law abiding person with a permit to carry a weapon and legal right to have a weapon, I would have left it at home.  The bad guy, not paying attention to a simple sign or resolution, would not have done the same.  A bad outcome, indeed.

Continuing, the Supervisor stated that “those wanting to cause violence are going to carry into the courthouse anyway or they probably won’t have even secured a permit…but I believe this is a way to demonstrate to the public that we are serious about making the courthouse a safe place to work and conduct business.”

Hmmm.  You really think so?  How can it be safe when the Supervisors won’t allow trained and vetted permit holders to have a firearm?  Why then, is there an armed deputy sheriff in the courthouse if you have a sign posted?  That sign should keep the bad guys out, right?  I believe not.  Look at recent shootings, which may be close to home or in a similar setting.  The tragic shooting at the Mt. Pleasant city council meeting with a deranged gunman upset about city policy.  I argue that the outcome would have been much different if a trained, vetted permit holder were in attendance that evening.  I’d bet lives would have been saved.

Or let’s look at the December shooting at a school board meeting in Florida.  The custodian, a former police officer, heard the shots and he responded from within the building – gun in hand.  Tragedy averted.  This entire scenario played out in a matter of seconds…and the police were only minutes away.

“We are only exercising our rights as property owners”, said the Supervisor.  Who’s rights?  Certainly not mine as guaranteed in the second amendment.  Not even mine as guaranteed in Article I of the Iowa Constitution:

Rights of Persons.  SECTION 1.  All men and women are, by nature, free and equal, and have certain inalienable rights—among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safetyand happiness.”  [emphasis added]

Or, Iowa Code 724.7 which says “…permits so issued shall be valid for a period of five years and shall be valid throughout the state except where the possession or carrying of a firearm is prohibited by state or federallaw.”   [emphasis added]

Going on, the Supervisor said that “the resolution was drafted by the county attorney and he stated that it did not conflict with any section of Iowa Code 724.” 

724.28 Prohibition of regulation by political subdivisions.

A political subdivision of the state shall not enact an ordinance regulating the ownership, possession, legal transfer, lawful transportation, registration, or licensing of firearms when the ownership, possession, transfer, or transportation is otherwise lawful under the laws of this state.  An ordinance regulating firearms in violation of this section existing on or after April 5, 1990, is void.

The Code states that a political subdivision shall not enact an ordinance.  As stated previously, this section was written to prevent patchwork across the state.  Having individual political subdivisions write resolutions certainly conflicts with the intent of the law.  The county attorney cited an Attorney General Opinion that is dated April 7, 2003…nearly eight years prior to the new law going into effect which states that a resolution can be passed to prohibit firearms.  An Assistant Attorney General wrote a letter on December 29, 2010 suggesting that the former opinion is still valid.  The law cited above is silent on dangerous weapons.  [emphasis added]

Furthermore, “we heard no opposition on the day we took action on the agenda item”.  The agenda is posted on the website 24 hours in advance of the meeting.  The agenda item was to “adopt a resolution and set dates for ordinance considerations re: Prohibition of Weapons on Courthouse Property.  It sure seems that the result of that discussion items resulted in a lot more that prohibiting weapons on courthouse property.  It involves all county property.  A huge difference and maybe there would have been a better turn-out for the meeting if people were told what was really on the agenda.   Unfortunately, I was ill for three days last week so I was unable to attend.  If I had not been ill, chances are that I couldn’t attend because I would nit have had time to schedule a vacation day to attend.  It appears, according to an article in Vinton Today on January 11, that Will Heber, the county conservation director, was at the meeting and said that there were a couple incidents involving firearms at county parks in 2010.  He said he is concerned that letting non-professionals carry weapons could lead to more shootings.

I’m guessing here, but I bet there were more than a “couple” incidents involving alcohol, drugs, and criminal mischief in the parks in 2010.  What exactly were the “incidents” and what charges were filed?  Again, just guessing, but I suspect that the violators did not have a permit to carry and probably would have ignored the resolution or a sign at the park entrance about leaving your guns behind.  Quite frankly, I’m more concerned with the 38 registered sex offenders currently in Benton County than I am about any trained, vetted person with a permit to carry.

It’s interesting to note that Iowa Code 724.4A already provides for enhanced penalties for any crime committed in a park while armed.  Seems to me that it is perhaps a better choice to file criminal charges for a law currently existing than a resolution which may or may not be legal.

So does it seem that my case has been made?  Not yet.  Let’s talk about the legality of the resolution.  This proposal contradicts the plain terms of Iowa state law and infringes upon the rights of law-abiding Iowans and our visitors.  It appears that there is a lot of reliance on state case law from other jurisdictions which is limited in its scope.  It seems these cases are focused on a public entity having a special relationship with the person being regulated such as governing public employees or regulating commercial events on public property.

Even the Attorney General’s opinion says that “jurisdiction-wide restriction(s)” would likely be unenforceable and that its exception is “narrowly limited to property owned or directly controlled by the municipality”.  It does not articulate where firearms can and can not be banned.  Clearly the legislature tried to prevent this activity in the new law.

Further, I question if the county has the power to create such a resolution when we look at the General powers and limitations of the Board.

331.310 General powers and limitations.

1.  A county may, except as expressly limited by the Constitution of the State of Iowa, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.  This grant of home rule powers does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent county power.

5.  A county shall substantially comply with a procedure established by a state law for exercising a county power unless a state law provides otherwise. If a procedure is not established by state law, a county may determine its own procedure for exercising the power.

6.  A county shall not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.

So how will this be enforced?  Signs have been posted on the doors of the courthouse prohibiting firearms and dangerous weapons.  Chances are the police department will respond when a call is made to 911 of a person with a gun in the courthouse.  Vinton Police Chief Jeff Tilson, when talking about the same signs in businesses, said in Vinton Today on January 13 that “it’s up to the businesses to enforce it”.  The police department will take action only if the person with the firearm refuses to leave after being asked.

My suggestion to the Supervisors is pretty simple.  Follow the lead of Washington County, Woodbury County and the cities of Marion, Kalona and Ft. Madison and rescind the resolution and take down the signs.  If you really want to protect the courthouse employees and the public, adopt a resolution which prohibits any person from entering in or on county property before washing their hands.  The threat of influenza is much greater than violence with a firearm.  Plus the firearm threat can be greatly minimized by allowing trained, vetted permit holders to carry a firearm in and on county property.

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Tom Boeckmann is a certified firearms instructor and has been teaching firearms safety for twenty-five years.  He has received two Governor’s Awards and one Lt. Governor Award for his involvement with firearms safety and was named Iowa’s Outstanding Hunter Education Instructor by Game Conservation International.  He is a graduate of the Iowa Law Enforcement Academy and holds a Bachelor’s Degree in Public Administration / Law Enforcement.  He lives in Vinton.  He can be contacted at IowaFirearmsTraining@gmail.com.  For more information, go to www.IowaFirearmsCoalition.org.