In this column, our Network Affiliated Attorneys generously contribute commentary and information from their professional experience to help Network members better understand the myriad legal issues affecting armed citizens and self defense.
During periods of rioting this past year, state governors and city mayors exercised their emergency powers to declare states of emergency. Some orders suspended civil rights including legal possession of weapons–even those used for personal protection. As a result, members have asked for help understanding circumstances, restrictions and enforcement if their governor or mayor declares a state of emergency. Because the Network’s staff can’t answer questions about the many and varied laws of every state, we asked our affiliated attorneys about emergency powers in their state. We asked–
Does your state authorize its governor to declare a state of emergency and may they restrict possession of weapons while the order is in force? Do weapon restrictions while under a state of emergency extend to licensed concealed carry, to possession of weapons at home, to possession of weapons while in one's automobile?
Is the restriction only against firearms, or are knives, pepper spray and other personal protection devices also illegal while under a state of emergency? Are there exceptions that may help our law-abiding members?
Particular to legal weapon possession, does your state law preempt restrictions by cities that have declared states of emergency? What time limit, if any, applies to restrictions imposed during states of emergency?
Richard H. Seaton, Jr.
410 Humboldt St., Manhattan, KS 66502
Kansas Statute Annotated 48-959 specifically prohibits the permanent or temporary seizure or registration of any lawfully possessed firearm(s) by any governmental entity or employee thereof in times of emergency, except as evidence in a criminal investigation. The statute is quoted in its entirety below:
48-959. Seizure of firearms prohibited during official state of emergency; cause of action created; attorney fees. (a) No officer or employee of the state or any political subdivision thereof, member of the Kansas national guard in the service of the state, or any person operating pursuant to or under color of state law, receiving state funds, under control of any official of the state or political subdivision thereof, or providing services to such officer, employee or other person, while acting during a declared official state of emergency, may:
(1) Temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under state law, other than as evidence in a criminal investigation; or
(2) require registration of any firearm for which registration is not required by state law.
(b) Any individual aggrieved by a violation of this section may seek in the courts of this state relief in an action at law or in equity or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges or immunities provided by this section.
(c) In addition to any other remedy at law or in equity, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the district court of the county in which that individual resides or in which such firearm is located. In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the state or political subdivision thereof, reasonable attorneys' fees.
(d) “Seize” shall mean the act of forcible dispossessing an owner of property under actual or apparent authority of law.
Knives and spray are not regulated in Kansas, except for throwing stars and ballistic knives. Pursuant to KSA 21-6302 there are weapons which are prohibited to carry: bludgeon, sand club, metal knuckles and throwing stars. Also, per KSA 21-6302 a person is prohibited from carrying concealed a “billy, blackjack, slungshot, or any other dangerous or deadly weapon or instrument of like character.” State law in Kansas preempts local or county firearms related ordinances which are more restrictive than state law.
Kansas law is very gun friendly. There are few restrictions on possession of lawfully owned firearms. We are a “Constitutional Carry” state. Concealed handgun permits are shall issue. We are a “Castle Doctrine” and stand your ground state. Kansas recognizes most other states CCH permits. Business owners have the right to post their premises as no gun places. Of course, Federal law applies where applicable.
Summers Compton Wells LLC
525 St. Louis Street, Suite 203, Edwardsville, IL 62025
The power of the Illinois Governor with regard to emergency declarations is in Illinois Statute 20 ILCS 3305/7. https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=368&ChapterID=5. This statute is part of the Illinois Emergency Management Agency Act. The relevant part states:
20 ILCS 3305/7. Emergency powers of the Governor. In the event of a disaster, as defined in Section 4, the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers; provided, however, that the lapse of the emergency powers shall not, as regards any act or acts occurring or committed within the 30-day period, deprive any person, firm, corporation, political subdivision, or body politic of any right or rights to compensation or reimbursement which he, she, it, or they may have under the provisions of this Act:...
(9) To suspend or limit the sale, dispensing, or transportation of alcoholic beverages, FIREARMS, explosives, and combustibles. (emphasis added)
Section 4 of the Illinois Emergency Management Agency Act defines a disaster as an occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, PUBLIC HEALTH EMERGENCIES, or acts of domestic terrorism. (emphasis added)
The only reported cases citing this statue were brought by the same evangelical pastor challenging the constitutionality of the governor’s stay-at-home orders, which was unsuccessful. The COVID-19 pandemic meets the definition of a public health emergency. The governor has the power to declare more than one emergency related to the ongoing COVID-19 pandemic and was not limited to issuing a single 30-day disaster proclamation, so long as the governor made new findings of fact to determine that a state of emergency still existed. Some trial courts have held the governor’s stay-at-home orders unenforceable, but the governor apparently ignored them or they have not been decided by an appellate court because none appear in the reported appellate court decisions.
The governor has not attempted to restrict the possession or use of firearms. It is unclear if a declaration by the governor under his emergency powers that restricts the transportation of firearms would be constitutional. The state would need to show the necessity of such a restriction (a compelling state interest) to withstand a Second Amendment challenge.
The Illinois State Police issued emergency rules extending the expiration date of Illinois concealed carry licenses and Firearms Owners Identification (FOID) Cards until 12 months after the end of the pandemic disaster declaration. The State Police stated in a news release that the statute prohibiting carrying a firearm while masked does not apply to people carrying in accordance with the Concealed Carry Act and wearing a mask due to the COVID-19 crisis. The latter will apply to a nonresident who has a concealed carry permit or license issued by his or her home state and may therefore carry a firearm concealed in a vehicle while in Illinois. Nonresidents without an Illinois Nonresident Concealed Carry License (only residents of Texas, Virginia, Arkansas, Mississippi, Idaho, and Nevada may obtain an Illinois Nonresident Concealed Carry License) should be careful not to step out of a vehicle with a firearm unless it is unloaded and in a case because doing so is a crime.
Illinois Statute 20 ILCS 3305/11 allows local disaster declarations, but states that the effect of such a declaration is to activate the emergency operations plan of that political subdivision and to authorize the furnishing of aid and assistance thereunder.
Restrictions on possessing or transporting firearms would seem to be outside of the power of a local government under a local disaster declaration, but this has not been tested in the courts. Section 90 of the Illinois Firearm Concealed Carry Act states that the Act preempts local or municipal law. It would seem that any local restrictions of the right to carry under the Illinois Firearm Concealed Carry Act beyond restrictions imposed by the governor would be void, but this has not been tested in court. Local laws restricting high-capacity magazines, banning assault rifles, and imposing storage requirements have been upheld. Thus, the preemption question has not been resolved in Illinois.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
Does your state authorize its governor to declare a state of emergency and may they restrict possession of weapons while the order is in force?
My state (GA) explicitly empowers the governor to declare a state of emergency, but also explicitly prohibits restrictions on weapons.
Particular to legal weapon possession, does your state law preempt restrictions by cities that have declared states of emergency?
The state has a statewide preemption of weapons restrictions. It applies all the time, even during emergencies. If there are violations, the city can be sued.
What time limit, if any, applies to restrictions imposed during states of emergency?
A big “Thank You!” to our affiliated attorneys for their very detailed contributions to this interesting discussion. Please return next month when we ask our affiliated attorneys for their thoughts on a new topic.
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