Gun rules may be illegal

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Gun rules may be illegal Only Legislature has the power, Shurtleff opinesBy Bob Bernick Jr., Jennifer Toomer-Cook and James ThalmanDeseret News staff writers An informal opinion on Utah gun law from Attorney General Mark Shurtleff says a slew of state agency and university gun-control regulations are illegal because only the Legislature has the power of gun control. Gov. Mike Leavitt and his personnel office have already taken steps to rescind one of the rules, which says state employees, even those with legally permitted concealed weapons licenses, can't take guns to work. If Leavitt doesn't move to rescind all the other gun control administrative rules, House Speaker Marty Stephens says, then legislators may well act to strike those "illegal" regulations during the 2002 Legislature. "I don't see why (Leavitt) would fix one of those rules and not all the others. We'll wait at first to see what he does," said Stephens, R-Farr West. Lawmakers start their 45-day session in mid-January. "We didn't ask for this opinion, but we will comply," Leavitt spokeswoman Natalie Gochnour said. "It will take time to work through these, each agency working with the AG. Maybe some of these (rules) should be in law, and we'll look at that." In any case, clearly Shurtleff has thrown a legal monkey wrench into a wide variety of state agency efforts to keep guns out of certain areas and activities - home day care operations, muzzle-loading and archery deer hunts, horse races, state parks and University of Utah dormitories. Shurtleff, at no state agency's request, had a law clerk in his office research and write the opinion, and a month ago Shurtleff gave a copy to Leavitt. Since the Deseret News first reported on the opinion last week, Shurtleff and Leavitt refused to release it, citing attorney/client privilege. But Thursday Leavitt OK'd its release by Shurtleff's office, Attorney General's spokesman Paul Murphy said. Stephens had also requested a copy and was prepared to release it if Leavitt and Shurtleff didn't. As reported previously, Leavitt gave a copy to his state personnel office, and they announced publicly that they were moving to rescind the rule banning state employees from bringing guns to work. Shurtleff says the University of Utah's gun policy is "illegal" because it bars students and employees from carrying or using a firearm or dangerous weapon on campus or at U. activities unless the university gives the OK. The Utah Court of Appeals in 1992 ruled colleges are obligated to create and enforce "reasonable regulations" to maintain discipline and order and to "promote an environment consistent with the educational process." Federal law also prohibits guns on school campuses. State code reiterates the federal mandate but exempts those who have a valid state permit to carry concealed weapons. That's why the Attorney General's Office believes the U. overstepped its bounds. The U. is defined in law as a state entity. Therefore, it doesn't have the right to enact rules pertaining to firearms, the job of the state Legislature, Shurtleff's opinion says. "Although the University of Utah falls into a category of state entities where firearms are restricted, (Utah law) indicates that a person with valid permit to carry a concealed weapons or a person exempt from weapons laws . . . cannot be prohibited from possessing a firearm on a university campus," the opinion states. Utah law also allows people to have loaded guns in their homes or "temporary residence," which could include a dormitory or other on-campus housing, Shurtleff wrote. U. attorneys were reviewing the opinion Friday. "The university has had a longstanding policy, and we believe we have a legal argument for this," spokeswoman Coralie Alder said. "But we'll certainly look closely at the opinion from the Attorney General's Office." In addition, the opinion says that two rules concerning gun safety around children are also illegal. One says licensed day care operators can't have loaded guns around the children. Another says that those wishing to be foster parents must have loaded guns safely stored where children can't get them. According to the opinion, the state Department of Health may have power to "promote and protect the health and wellness of the people" but that doesn't mean they have the right to make child care providers keep firearms under lock and key. Under the current rule, both residential providers and child care centers must ensure that no weapons are accessible to children. Operators are also required to keep firearms and other weapons stored separately from ammunition in a locked cabinet or locked room. Rules also currently require that any firearms in a foster home must be inaccessible to children at all times, and weapons must be securely locked. Rules for firearms in foster homes also require that weapons be rendered inoperable when possible. By rule, no firearms are allowed at all in foster homes that take children referred to them by the state Division of Youth Corrections. Rod Betit, Health Department executive director, said he doesn't know how much weight to give an opinion "written by a law clerk." " I can say emphatically that the department will continue to enforce its current rules requiring separation of firearms from ammunition in child care situations," Betit said. "Parents should be assured that the current firearm safety rules will not be abandoned, and that if those rules are ultimately found to be unenforceable, that the department will implement other measures so that parents know what a child care provider's firearm policy is before they leave their children there." Hugh Thompson, acting director of Natural Resources, said he will ask various wildlife agency directors and boards to rewrite a dozen rules dealing with guns. "We agree with the AG that the concealed weapons law trumps" various restrictions, such as one prohibiting loaded guns in state parks. However, further study is needed before dumping the rule that bans anyone, even someone with a fishing license, from killing fish with guns. "We'll have to look at that one," said spokesman Ron King. Stephens said some of the rules "may be legitimate" health and safety measures. "We'll look at those, and perhaps the Legislature may add those" to current law - which already outlaws all guns, even legally permitted concealed weapons, in jails, courts, airports and other areas. But, the speaker said, it's clear, from both Shurtleff's opinion and one written by the Legislature's own attorney more than a year ago, that only the Legislature has the power to control gun use in Utah, and that various state agencies overstepped their authority when they promulgated rules controlling guns. http://deseretnews.com/dn/view/0,1249,355009369,00.html