March 11, 2011
OLR BACKGROUNDER: FIREARM PREEMPTION ISSUES—DOES CONNECTICUT LAW PREEMPT MUNICIPAL FIREARM ORDINANCES?
By: Veronica Rose, Chief Analyst
This report discusses preemption, especially as it relates to Connecticut gun laws, in light of a bill (HB 6377) currently before the Public Safety Committee to preempt local gun control laws.
The Office of Legislative Research is not authorized to render legal opinions, and this report should not be construed as such.
State preemption laws prevent local jurisdictions from enacting ordinances that irreconcilably conflict with state statutes or address matters in an area in which the legislature has demonstrated the intent to occupy the entire field of regulation. Preemption may be expressly stated in a statute or constitutional provision or implied from the statute's construction and purpose. It is up to the courts to determine if a statute preempts an ordinance.
In determining whether local jurisdictions are preempted from taking action in a particular field, the state Supreme Court has held that courts are not to look for statutory prohibition against an enactment but for statutory authority for it. Towns might look for authority to regulate firearms under their municipal powers statutes, which give them broad authority to address nuisances and take steps to protect public health and safety.
Connecticut statutes do not expressly preempt local firearm ordinances. But the courts have ruled that the statutes implicitly preempt such ordinances in two areas: firearm sales and hunting regulation. The state Supreme Court struck down a New Haven gun ordinance dealing with firearm sales, in part because the ordinance effectively prohibited what state law permitted. And the Appellate Court struck down an East Hartford ordinance to the extent it operated to regulate hunting, finding that the state has occupied the field.
Connecticut courts have not considered whether the legislature has demonstrated the intent to occupy areas of firearm regulation besides hunting and firearm sales. Given the extent of state firearm regulation in Connecticut, a court may decide that the legislature has manifested the intent to occupy the entire field of firearm regulation. But a court may also decide that, absent a direct conflict with state law, towns, under the municipal powers statutes, may enact firearm ordinances to protect the public health, safety, and welfare of their citizens.
WHAT IS PREEMPTION?
Preemption is based on the premise that a legislature may reserve to itself exclusive jurisdiction over an entire subject area thereby preventing local action in that area.
Legislative intent to preempt municipal action may either be expressly stated in a statute or constitutional provision or implied from the construction or purpose of the legislation. Express preemption occurs when a statutory or constitutional provision contains explicit language that removes a local government's regulatory authority. For example, a bill currently before the Public Safety Committee preempts municipalities from regulating most aspects of firearms and ammunition. Under the bill:
(a) [N]o municipality may regulate, restrict or license the ownership, possession, use, purchase, sale, transportation or transfer of firearms, ammunition for firearms or components for firearms, nor may any municipality maintain or enact any ordinance or regulation which in any way regulates, restricts, prohibits, licenses or affects the ownership, possession, use, purchase, sale, transportation or transfer of such firearms, ammunition or components except as otherwise provided in state or federal law.
(b) The matters described in subsection (a) of this section are under the exclusive jurisdiction of the state and federal government, and the laws relating to such matters are intended to fully occupy the areas described and preempt any city or town, or any political subdivision of a city or town from legislating on such matters except when expressly permitted by the state.
(c) A municipality shall not define any activity related to firearms as constituting a public nuisance or as being detrimental to public health and safety.
(d) The provisions of this section shall supersede any inconsistent ordinances or regulations enacted by a municipality (http://www.cga.ct.gov/2011/TOB/H/2011HB-06377-R00-HB.htm).
Absent explicit preemptive statutory language, courts may infer an implied intent on the state's part to assert exclusive authority over a subject matter when a comprehensive scheme of state regulation exists on that subject. This is referred to as implied preemption. The state Supreme Court has held that “[a] local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter. . . .”(Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 232 (1995)).
Even if the legislature has not occupied a field, courts may find that a municipal ordinance is preempted if it conflicts with state law, making compliance with both state law and the ordinance impossible. This is referred to as conflict preemption. “Whether an ordinance conflicts with a statute or statutes can only be determined by reviewing the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates the achievement of the state's objectives (Id., at 232). The state Supreme Court has ruled that (1) an ordinance is not in conflict with a state statute if it only enlarges on “the provisions of a statute by requiring more than [the] statute” (Aaron v. Conservation Commission, 183 Conn. 532, 544 (1981)) and (2) an ordinance that is not in conflict with a statute is not preempted by it (Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 130, 131 (2001)).
[The] test frequently used to determine whether a conflict exists is whether the ordinance permits or licenses that which the statute forbids, or prohibits that which the statute authorizes; if so, there is a conflict. If, however, both the statute and the ordinance are prohibitory and the only difference is that the ordinance goes further in its prohibition than the statute, but not counter to the prohibition in the statute, and the ordinance does not attempt to authorize that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict (Aaron v. Conversation Commission, 183 Conn. 532, 544).
STATE FIREARM REGULATION AND MUNICIPAL POLICE POWERS
State law extensively regulates firearm use, sale, transfer, possession, and transportation. For example, it prohibits (1) firearm possession in certain places and by certain people, (2) possession of certain types of firearms, (3) carrying or transporting of firearms in an unauthorized manner, (4) discharging firearms in certain locations, and (5) transferring firearms to unauthorized persons (OLR Report 2007-R-0369 for a detailed summary of Connecticut gun laws).
The statutes neither expressly prohibit municipalities from enacting firearm ordinances nor authorize municipalities to enact such ordinances. But, in determining whether a municipality has the authority to enact an ordinance, the state Supreme Court has held that courts are not to look for statutory prohibition against such an enactment. Instead, they must look for statutory authority for it (Simons v. Canty, 195 Conn. 524, 530 (1985), citing Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236 (1965)). And while towns may not have specific authority to regulate firearms, the general statutory grant of police powers may be sufficient to authorize them to do so within their boundaries.
Municipal Powers Re: Health and Safety
The state Supreme Court has ruled that a municipality's powers are those that are (1) expressly granted or (2) by implication, necessary to exercise those powers expressly granted (Hennessy v. City of Bridgeport, 231 Conn. 656 (1990)). The statues give towns the power “to make and enforce police, sanitary and similar regulations and protect or promote the peace, safety, good government and welfare of the municipality and its inhabitants” and “provide for the health of the inhabitants of the municipality and do all things necessary or desirable to secure and promote the public health” (CGS § 7-148 (c) (7) (H) (xiii, xi)).
In 2001, the state Supreme Court considered municipal power to adopt health and safety ordinances and held that municipalities may prohibit cigarette vending machines within their boundaries (Modern Cigarette, Inc. v. Orange, 256 Conn. 105 (2001)).
The trial court had found that (1) the town and state both had a legitimate interest in promoting the health, safety, and welfare of their citizens by regulating tobacco products and preventing minors from getting access to cigarettes; (2) in spite of the laws barring minors from buying tobacco, they had little difficulty in buying cigarettes from machines; and (3) the town's ordinance was rationally related to the goal of preventing youth access to tobacco. Nonetheless, the court concluded that the state law governing cigarette vending machines (CGS § 12-289a) preempted the ordinance. The court held that, although the law allows municipalities to impose more restrictive conditions on vending machines than the statute provides, the legislature had not granted municipalities the power to ban vending machines outright. The court accordingly declared the ordinance invalid. (The dissent in the case contrasted this statute with CGS § 30-9, which allows municipalities to ban the sale of liquor.)
On appeal to the state Supreme Court, Justice Katz, writing for the majority, discussed the legal principles underlying a municipality's police powers and the court's deference to their exercise. Justice Katz then discussed how the Court determines whether a local ordinance is preempted by statute. She noted that preemption occurs when the legislature has demonstrated the intent to occupy the entire field of regulation or when a local ordinance irreconcilably conflicts with a statute. Justice Katz also noted that (1) the legislature had clearly anticipated municipalities adopting public health regulations when it granted them broad police powers and (2) if the legislature had wanted to preempt a municipality from adopting an ordinance banning vending machines, it could have done so explicitly.
The majority upheld the ordinance, in part, based on the fact that the legislature did not explicitly preempt municipal regulations that went beyond the state regulation. It cited Aaron v. Conservation Commission, (183 Conn. 532, 544 (1981)), which held that “[w]here a municipal ordinance merely enlarges on the provisions of a statute by requiring more than a statute, there is no conflict unless the legislature has limited the requirements for all cases.”
CONNECTICUT COURT DECISIONS INVOLVING FIREARM ORDINANCES
Connecticut courts have held that state statutes preempt local firearm regulation in two areas: firearm sales and hunting regulation. They have not considered whether the legislature has demonstrated the intent to occupy areas of firearm regulation in other areas.
State statutes require anyone who wishes to sell handguns at retail to first obtain a permit from the local police (or selectmen, where applicable). The permit holder may sell guns in the “room, store, or place” described in the permit (CGS §§ 29-28 to -32).
The state Supreme Court has held that these statutes preempt municipal regulations that are irreconcilable with the state's requirements. In Dwyer v. Farrell (193 Conn. 7 (1984)), the Court struck down a New Haven ordinance that (1) required sellers to have a federal firearms license, a state tax permit, and a state gun permit and (2) prohibited sales in private dwellings or anywhere outside an area zoned as a business district, unless the seller obtained a variance. The Court reasoned that state laws showed a clear legislative intent to regulate gun sales, including those by nondealers and people living in residential neighborhoods. Thus, the ordinance effectively prohibited what state law clearly permitted because a “casual seller residing in a nonbusiness zone can have no real hope of ever conforming to the local ordinance.” According to the trial court:
[T]he New Haven ordinance removes an entire class of persons as potential sellers of handguns at retail. The state permit is rendered an illusory right because a casual seller residing in a nonbusiness zone can have no real hope of ever conforming to the local ordinance. In this respect the local ordinance conflicts with the legislative intent as expressed in the applicable statutes. The city has removed a right that the state permit bestows and thus has exceeded its powers (Id., at p. 14).
Dwyer was particularly concerned with handgun sales by individuals. The Court specifically noted that it was not deciding on whether a municipality could pass a zoning ordinance restricting the sale of handguns to specific zones. This would seem to allow towns to regulate the location, at least, of commercial gun outlets. West Hartford, for example, prohibits gun shops in 'neighborhood business districts,' allowing them in “business districts” as a secondary use (e.g., as a department in a sporting goods or department store). A “neighborhood business district” is defined as an area where stores provide goods and services predominately for surrounding residents. These might include convenience, package, or drug stores (West Hartford Municipal Code § 177-16.2).
Several courts have considered whether state law preempts local regulation of hunting, including State v. Brennan (3 Conn. Cir. Ct. 413, 216 A.2d 294 (1965)) and Kaluszka v. East Hartford (60 Conn. App. 749 (2000)).
In Brennan, the court held that the town of Westport, which was granted the power to regulate hunting within the town by special act, had no power under the special act to regulate hunting over navigable waters adjacent to the town. The court found that the state has preempted the field of regulating and encouraging the hunting of wildlife on public and private lands and waters (Id., 417).
In Kaluszka, the Appellate Court upheld a lower court decision that (1) an East Hartford ordinance was invalid to the extent it operated to regulate hunting and (2) the state has occupied the field in the area of hunting regulation. According to the trial court:
The comprehensive nature of the state hunting statutes and regulations, when considered along with the comments and actions of the General Assembly in its consideration of provisions that would have delegated power over hunting regulation to the towns is ample evidence of the legislature's intent. Accordingly, it is the opinion of the court that the town has no authority to regulate hunting on federal, state or private property within its borders. . . .Furthermore even if the court were to hold that the state has not occupied the field of hunting regulation, the hunting regulation provisions of § 13-33 are in conflict with the state statutes and are therefore preempted (Kaluszka v. East Hartford, 46 Conn. Sup. 588, 596, 597 (1999).