Can you open carry in a Clark County park?

Update: This post is now partly anachronistic. Enhanced preemption went into effect 6/2/2015. Park Police are aware that their ban has been declared null and void. Carry with caution for now. 

• Clark County Parks believes it is illegal to have a gun in the park and will enforce their regulation, based on abstruse legal reasoning.
• The Cities of Las Vegas and North Las Vegas have laws on the books, but are not too zealous in enforcement.
• Henderson totally allows guns in city parks and the same is believed for Mesquite and Boulder City.
• State parks are gun friendly (just no concealed carry where posted, but open carry okay).
• The preemption bills SB 175 and SB 240 have invalidated the park ban on firearms. 

The Clark County Park Police, enemy of the right to bear arms

The Clark County Code prohibits open or concealed carry of firearms in parks. Mere possession of a firearm in the park (say in your car, is technically prohibited). These park rules are authorized pursuant to ordinance 19.04.060 gives the county commissioners authority to create park rules.

Warning: Be prepared to be confused!

Oddly enough, the Clark County Shooting Park Complex was renamed to avoid it being a 'park' and thus prohibit guns...at a shooting range. Incidentally, the 2007 change to NRS 244.364 allowing non-residents 60 days to register their handguns was to eliminate a technicality that would make competitors and tourists coming to Vegas to shoot at the Complex technical violators of the registration ordinance, which was also amended.

The conflict is with state preemption laws which prohibit counties, cities, and towns from creating their own gun regulations. Where this gets confusing and legalistic is that Clark County used its influence to get a special carve out for its handgun registration program (‘blue cards’). The state law is quite clear. Only the handgun registration program is legal; all other laws, such as North Las Vegas’ guns-in-cars law is illegal and unenforceable, despite still being ‘on the books.’

The only other provision for local municipalities to make their own firearm regulations is regarding unsafe discharge (shooting) of firearms. Obviously, no one would rationally object to prohibiting shooting in local parks, save for the gang members and drug dealers’ lobbyists.

 NRS 244.364 Limited authority to regulate firearms; restrictions concerning registration of certain firearms in county whose population is 700,000 or more.

            1. Except as otherwise provided by specific statute, the Legislature reserves for itself such rights and powers as are necessary to regulate the transfer, sale, purchase, possession, ownership, transportation, registration and licensing of firearms and ammunition in Nevada, and no county may infringe upon those rights and powers. As used in this subsection, “firearm” means any weapon from which a projectile is discharged by means of an explosive, spring, gas, air or other force.

            2. A board of county commissioners may proscribe by ordinance or regulation the unsafe discharge of firearms.

            3. If a board of county commissioners in a county whose population is 700,000 or more has required by ordinance or regulation adopted before June 13, 1989, the registration of a firearm capable of being concealed [emphasis added], the board of county commissioners shall amend such an ordinance or regulation to require:

            (a) A period of at least 60 days of residency in the county before registration of such a firearm is required.

            (b) A period of at least 72 hours for the registration of a pistol by a resident of the county upon transfer of title to the pistol to the resident by purchase, gift or any other transfer.

            4. [omitted]

Nowhere is the authority to regulate possession of guns in parks permitted in that section or anywhere else in the entire Nevada Revised Statutes.

On the park police website.

The Complicit Attorney General

In 2010, Attorney General gave a pretty tortured interpretation in this opinion of how the exemption for Clark County’s handgun registration ordinance somehow means that the park district can make its own firearm regulations.

David Roger, then Clark County District Attorney, requested Attorney General Catherine Cortez-Masto’s legal opinion of the legality of the guns-in-park prohibition. As a Democrat, Cortez-Masto unsurprisingly sided against gun owners and with government control by using absurd reasoning to justify the ‘legality’ of the regulation. 

“A review of the language contained in NRS 244.364(1) indicates that the Nevada Legislature intended to preempt the entire field of firearm regulation, absent its one exception for the unsafe discharge of firearms. NRS 244.364(2). When the Legislature adopts a general scheme for the regulation of a particular subject, local control over the same subject ceases. […] Therefore, a county may not enforce regulations which are in conflict with the Legislature’s mandate.” 

“Your office also suggests that the legislative history discloses that the Legislature

did not intend to preempt local ordinances concerning the carrying, possessing, and

discharging of firearms. A review of the legislative history shows otherwise. In a letter

dated February 17, 1989, Attorney General McKay responds to the following questions

posed by Assemblyman Dini:

The opinion quotes a letter dated February 17, 1989 from Attorney General McKay regarding the original preemption bill. 

“This statute [A.B. 147] would preempt for state regulation all forms of governmental regulation involving firearms and ammunition in Nevada, with one exception. That exception allows cities, counties, and towns to proscribe by ordinance or regulation the unsafe discharge of firearms.
 [...]
 “A.B. 147 would not repeal or make ineffective any state statutes, but would invalidate any local ordinances or regulations on this subject since all aspects of the possession of firearms and ammunition in Nevada would be preempted for state regulation if A.B. 147 becomes law.” 

Cortez-Masto then concludes that: 

“Discharge ordinances are explicitly permitted by NRS 244.364(2); however, regulations concerning possession are not. The Office of the Attorney General has also interpreted NRS 244.364 in a 1995 Opinion and has stated, 'regarding control of firearms, NRS 244.364 clearly states that counties may regulate only the unsafe discharge of firearms, and that “no county may infringe upon' the power of the legislature to regulate, inter alia, the sale and possession of firearms.” 

After all of this, Cortez-Masto basically ignores all of it and states that the grandfather clause in

Section 5 of the original 1989 preemption bill, stated that "The provisions of this act apply only to ordinances or regulations adopted on or after the effective date of this act." In 1989, the no-guns-in-parks rule would have been legal because it was approved in 1981, however, any ‘grandfather clause’ protection would have logically ended with the language of the 2007 amendment to the statute.

Cortez-Masto’s Twisted Logic

Existing regulations, as stated above, permit only Clark County’s handgun registration scheme. Section 5 was deleted. As far as existing regulations go, the current form of NRS. 244.364, Section 3, states the only grandfathered regulations are ones “adopted before June 13, 1989, the registration of a firearm capable of being concealed [emphasis added].”

As far the 2007 amendment[1] is concerned, which changed the language to allow specifically only handgun registration, Cortez-Masto said "The grandfather provision was not altered in this regard by subsequent amendment." Her argument is that even though the statute was changed by the legislature and despite the only allowance for existing laws was handgun registration, the deleted grandfather clause from 1989 still allowed for police to enforce the no-guns-in-parks rule.

Cortez-Masto concludes that: “Although Clark County does not have the authority to adopt or enact new local ordinances or regulations that are preempted by NRS 244.364(1), the ordinances or regulations grandfathered by A.B. 147 still remain in effect today.”[2] Her main argument was footnote in the hard-copy (not online) edition of the published bills where the reviewer said that pre-1989 laws were still enforceable.

In plain English, Cortez-Masto is saying that because the original regulation was adopted before the 1989 preemption bill, the original (since altered) language of the 1989 bill allows them to continue to enforce this law because the 2007 revision didn’t explicitly say that municipal regulations to the contrary were henceforth illegal.

So because the district attorney didn’t want the law ruled illegal in 2010 and the attorney general was complicit in this, she decided the law was what Clark County wanted it to be.

Still, Sections 4 and 5 of 2007’s SB92 confuse me and I wonder why they don’t apply, as well as Cortez-Masto’s footnotes. Perhaps an attorney or judge in the audience can help interpret?[3]

Legal in Other Cities

The city of Henderson, in response to a particular dedicated member of the open carry movement in Nevada, managed to get the city to acknowledge that preemption under NRS 268.418 did in fact apply to parks and city buildings. The signage at the parks was changed and the city code to remove any reference to firearms being prohibited.

Henderson parks are totally gun-friendly for both open and concealed carry.

As of this writing, the Boulder City park website is down so I cannot confirm, but there are no such restrictions in Mesquite city parks.

The city of North Las Vegas’ park regulations still prohibit taking a gun into a park, but I have not heard of any recent enforcement.

The city of Las Vegas is a bit confusing. Basically, it says that concealed carry by permittees is legal and that legal possession (under state law) is legal. So since open carry isn’t mentioned at all by state law (and therefore perfectly legal), these ordinance could be construed any which way.

13.36.020(a)(6)

Firearms, archery equipment or other weapons of any kind, except as otherwise provided in Subsection (D);

D. The prohibition set forth in Paragraph (6) of Subsection (A) shall not apply to:

            (1) Activities specifically approved under this Chapter in connection with a particular event;

            (2) The possession of firearms that is otherwise permitted by State law; or

            (3) The possession of a concealed weapon by a person who holds a valid permit to do so that has been issued under, or is recognized pursuant to, the provisions of NRS 202.3653 to 202.369.

I have heard of a few stories of persons who were accosted by police in Las Vegas parks for open carrying. One was cited and his gun confiscated, using the rationale that he didn’t have a concealed firearm permit, though he wasn’t concealing, and the oft abused line of not having a blue card on him to verify he owned the gun he carried. When he protested, his gun was returned the next day and the charge dropped before any court appearance was made.

Using Cortez-Masto's above logic where an unaltered ordinance/regulation adopted before 1989 means that the regulation is grandfathered, the alteration to the city of Las Vegas regulations a few years ago would theoretically remove their grandfathering clause. I'm not a legal expert, but I don't think that Cortez-Masto's argument would hold up in court, and legal realities aside, the police reality is that if the officer wants to abuse his authority under the city's interpretation of law, the officer will.

Conclusion

Open carry or legal concealed carry in public parks is perfectly legal. The questions are, will the police harass you and do you want to be a test case? A polite, respectful person open carrying can probably go totally unnoticed if they don’t draw attention to themselves or the fact that they are carrying. Sadly to say, race, age, and appearance are all factors in whether or not the police may choose to selectively enforce a law.

The politically correct park police have this handy guide to park safety, which encourages you to wear reflective clothing and carry a whistle. Why yes, I’m sure a whistle will stop that robber or rapist. Ironically enough, this was a police chief’s ‘best advice’ back in the 1920s. Chief Koening of the Sacramento Police said: “Often when applications are made to me for permission to carry a gun I advise the applicants to buy a police whistle; blowing a police whistle is more protection to the citizen than a gun.” The modern park police also recommend carrying a cell phone.

So what can you do? Well, the good news is that unless SB 175 and SB 240 are vetoed by the governor, any such regulations will be made null and void. So Clark County can kiss its wacky Cortez-Masto grandfather clause good-bye. In addition, the county commissioners and city councils must repeal the contrary ordinances. Anyone who is aggrieved by unlawful enforcement after October 1^st is entitled to sue for up to treble damages. So contact the governor to show your support for these bills!

Email the governor

Phone: (775) 684-5670 or (702) 486-2500

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[1] Since the opinion was published in 2010, the preemption bill was amended in 2011 (a non-substantive change to raise the population of the affected municipalities).  

[2] Interestingly, in 2012, the City of Las Vegas changed its park regulation ordinances which, under Cortez-Masto’s logic, would remove their bogus grandfather-clause protection.

[3] SB 92 (2007) text of Sections 4 and 5:

Sec. 4. Section 5 of chapter 308, Statutes of Nevada 1989, at page 653, is hereby amended to read as follows:

Sec. 5. [The]

1. Except as otherwise provided in subsection 2, the provisions of this act apply [only] to ordinances or

regulations adopted on or after [the effective date of this act.] June 13, 1989.

2. The provisions of this act, as amended on October 1, 2007, apply to ordinances or regulations adopted before, on or after June 13, 1989.

Sec. 5. A board of county commissioners, governing body of a city and town board in a county whose population is 400,000 or more shall amend any ordinance or regulation adopted by that body before June 13, 1989, that does not conform with the provisions of NRS 244.364, as amended by section 1 of this act, NRS 268.418, as amended by section 2 of this act or NRS 269.222, as amended by section 3 of this act, as applicable, by January 1, 2008. Any

ordinance or regulation that does not comply with the applicable provision by January 1, 2008, shall be deemed to conform with that provision by operation of law.