Calvert City Council is in waiting mode regarding its response should Marshall County Fiscal Court pass a proposed ordinance designating the county a Second Amendment sanctuary county. Mayor Lynn Jones made that announcement at the close of a somber 37-minute special meeting Jan. 2 called to "make sure we have a clear understanding" of legal concerns the proposal, as it was originally presented, has created.
The fiscal court was expected to hear a second reading of the measure and adopt or reject it today, but at a quarter past 11 p.m. on Jan. 3, Marshall County Judge-Executive Kevin Neal released a memo on social media saying that following a meeting with Attorney General Daniel Cameron earlier that day, the vote and second reading were delayed. Neal performed the first reading on Dec. 17, and scheduled the second reading against the advice of County Attorney Jason Darnall. The measure generated considerable concerns among the legal community including a retired Kentucky Supreme Court Justice, two retired circuit judges now serving in other legal capacities, a domestic crisis expert and the public.
Jones asked City Attorney Greg Northcutt to explain implications of the ordinance. And with a copy of the document in front of each council member, Northcutt cited a litany of legal questions and safety concerns it prompts.
"The discussion tonight is entirely for the council, they won't be fielding questions, won't be answering questions, the council is here to hear from the city attorney on issues … that need some consideration and for our better understanding," Jones said, noting that Third District Commissioner Monti Collins was present also "in a fact-finding position."
Northcutt told the council he wanted them to "know that the county is considering passing this ordinance" so they could express to their representatives the city's perspective on the measure. "From the city's perspective … our primary interest and concern is the effect this ordinance may have on our public officials -- our police department," he said. "If you have difficulty unscrambling the terms of the ordinance don't feel bad. So does everyone else I have talked to.
"The constitutionality of the ordinance -- the plain legality of the ordinance -- while interesting is not primarily your concern," Northcutt told council members. "Primarily your concern … is that this ordinance effectively declares, with few exceptions, all state and federal regulations of firearms, ammunition and paraphernalia, unconstitutional and directs that county employees -- that would be basically the sheriff's department -- not to enforce state and federal regulations governing firearms.
"I have been through this ordinance about three times asking myself some fairly basic questions," he said, "and I know you guys are painfully aware that lawyers can make issues where average folks won't find an issue at all. However, because we (lawyers) often find ourselves in litigation over seemingly ridiculous questions, we don't apply common sense when we are reading ordinances. That's why when we draft ordinances they are frustratingly long and detailed because we try not to create more problems than we resolve.
"This ordinance, arguably, does not restrain Calvert City's police officers from enforcing federal and state laws regarding firearms in as much as the prohibition section specifically aims itself at agents and employees of Marshall County," Northcutt said. "However, subparagraph D of Section 4 creates a bit of an ambiguity even with regard to Calvert City police officers directly, in as much as it recites 'anyone in the jurisdiction of Marshall County accused of being in violation of this ordinance.' That creates … ambiguity because if the ordinance prohibits county employees only from enforcing the ordinance, if the city police officers does not enforce the ordinance, but instead enforces Kentucky law, do they fall within the definition of 'anyone' or not? … That is just fodder for litigation. We could argue about that for a long time.
"We all know that Calvert City's police department often finds itself in positions of cooperation with county police officers," Northcutt said. "This ordinance certainly places the sheriff's office and its deputies in a very tough situation. … For instance, if an order of court prohibits someone from possessing a firearm under Kentucky law, this ordinance, arguably would impose upon the police officer enforcing that court order, civil fines and civil remedies for having done so."
Councilwoman Tanara Babcock questioned whether an officer could take a weapon from a husband against whom his wife had an emergency protective order.
"It would appear (that way) from a plain reading of the proposed ordinance as I understand it," Northcutt said.
"Then an EPO would mean nothing?" Babcock queried.
"I don't know that it would mean nothing, but it would mean that the police officer could not enforce that court order to the extent of taking weapons away -- confiscating weapons or arresting someone for violating a court order," Northcutt said. "... The way the ordinance is written now, one of the exceptions is if you're a convicted felon then your weapon can be taken away. But what if you are not convicted? What if you're being arrested? The question then arises can we relieve you of your weapon or do we have to let you carry your weapon while you are in our car? And if we take you to the jail, do we have to let you keep your gun in the jail?
"I realize those questions sound insane," Northcutt said. "But under the plain reading of the ordinance, these questions are left unanswered, which places everyone in a very difficult situation. There is so much of this ordinance that leads to so many questions unanswered. Again, the constitutionality of the ordinance and whether or not a fiscal court has the ability to declare the acts of Congress and the General Assembly unconstitutional -- those are really interesting questions, but that's not Calvert City's actual concern. Calvert City's concern is if Calvert City's police officers are all busy … they are on a call and they have someone in violation of a protective order and he's walking down the street toward the house of the person he's supposed to leave alone, and Calvert City needs to call the sheriff's department for support, that sheriff's deputy is going to be prohibited.
"The problem here is that it causes so much on-the-job confusion for police officers because they've got to make decisions," Northcutt said. "They don't have the privilege of sitting around a table in safety talking about whether this is enforceable or not. When your alternatives are either violate the court order prohibiting this person from having a gun, and thereby risk a contempt action from the court. Or take the gun and risk being sued by the person you took it from. It creates a confusing immediate whirlwind around an officer in a very difficult situation."
The question the officer faces is: If I arrest someone and take his gun, can he sue me? "That's an unanswered question," Northcutt said. "Courts answer those questions. Officers often don't have the options of getting a court ruling. It's going to place a lot of pressure on Calvert City police officers."
Jones asked how the proposed ordinance might affect schools.
"A lawyer could argue that this ordinance allows people to carry weapons into a school," Northcutt said. He asked Police Chief David Elliott if he had any requests or if he wished to make his position known.
"I stand behind Jason Darnall," Elliott said. "I believe in statutory and federal KRSes" (Kentucky Revised Statutes and federal laws). I have a hard time enforcing an ordinance that supersedes state and federal ordinances -- I have a problem with that."
"Given your understanding and knowledge of the operations of Calvert City's police department and coordination with the county, are you concerned about the effect of this ordinance on the safety and proficiency of Calvert City's police department?" Northcutt asked.
"Absolutely," Elliott replied, "and the citizens and children of Calvert City also -- I'm speaking for Calvert City."
A full minute of silence followed before the mayor asked: "So in your opinion, passing the ordinance would impair the Calvert City Police Department and put at risk the officers of the department should they choose to enforce state and federal law that might be in conflict with this ordinance?"
Northcutt responded: "I think they would be at risk for doing that and for not doing that."