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  3. Attorney General Says Tucson Firearms Ordinance Unenforceable

Attorney General Says Tucson Firearms Ordinance Unenforceable

Oct 1, 2013 | Weapons Crimes

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Arizona Attorney General Tom Horne is taking a lot of heat for a recent opinion by his office that says two recently-passed Tucson ordinances are unenforceable. We have watched with some amusement as both the nature of the ordinances, as well as the rationale of the Attorney General’s opinion, become clouded by gross inaccuracies in the press, and a complete lack of understanding on the part of many citizens. Here’s the story.

“Genna’s Law” is named for a young woman who was shot and killed by her boyfriend, allegedly after he had been drinking. It provides (or would provide, if it were actually a law) that if you fire a weapon, and you have a blood alcohol concentration (BAC) of 0.08 or higher (the same level as for per se drunk driving), you commit a felony. According to the headline of an article from News4Tucson, the AG has ruled Genna’s Law unenforceable. If you read the article, it appears that Genna’s Law was not really at issue. Rather, it involved two Tucson city ordinances that say a couple of things: (1) if you are suspected of firing a weapon with criminal negligence, the cops can require a blood or breath test to determine your BAC; and (2) if your firearm is stolen or lost, you have to report the theft or loss to the Tucson Police Department within 48 hours. It was the ordinances that AG Horne was discussing in his opinion.

So what we have is a reference to Genna’s Law, that has never been a law, and that is not the subject of the Attorney General’s opinion. The law referred to failed to pass the Arizona legislature earlier this year. What Tucson did was to pass a couple of provisions of the law, none of which attempted to put anyone behind bars for anything, including the firing of a weapon while drunk. They do not address penalties for firing while drunk, nor do they mention prison, jail, felonies or any similar matters.

Not surprisingly, reaction to the situation by some members of the public, aided by inaccurate reporting in the press, is outrage. It’s as if the Attorney General were actively supporting drinking and shooting. Again, nothing of the sort has occurred. What Tom Horne did was to take a look at the Arizona Statutes, specifically A.R.S. § 13-3108(A), as well as some related laws, which state, in effect, that no political subdivision of the state (which includes cities) can pass any ordinance “relating to” the possession or use of firearms. The intent of the legislature was clearly to pre-empt the field in this area. Since the ordinances relate to the possession and/or discharge of a firearm, it is pre-empted by state law. And that is the extent of what the opinion says.

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