Ky Supreme Court reverses and remands Mitchell v. UK

It's a good day for law-abiding gun owners in Kentucky. Go HERE for the PDF on the Supreme Court website.

RENDERED: APRIL 26, 2012

TO BE PUBLISHED

Supreme Court of Kentucky

2010-SC-000762-TG
(2010-CA-002119-MR)

MICHAEL MITCHELL APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA GOODWINE, JUDGE

1O. 10-CI-00489

UNIVERSITY OF KENTUCKY, ET AL. APPELLEES

OPINION OF THE COURT BY JUSTICE SCHRODER

REVERSING AND REMANDING

Appellant Michael Mitchell appeals from an order of the Fayette Circuit

Court granting summary judgment in favor of Appellees, the University of
Kentucky and several of its employees and entities (collectively "UK"), in a suit
where Mitchell claimed UK terminated his employment in violation of public
policy. We conclude that Mitchell's discharge was contrary to a fundamental
and well-defined public policy, i.e., the right to bear arms as evidenced by the
Kentucky Revised Statutes. We further conclude that an explicit legislative
statement prohibited Mitchell's discharge, and that the reason for his discharge
was his exercise of a right conferred by well-established legislative enactments
Therefore, UK was not entitled to summary judgment, and we remand for
further proceedings.

I. BACKGROUND
The facts in this case are almost entirely undisputed. In 2009, Mitchell

was employed at-will as an anesthesia technician at the University of Kentucky

Chandler Medical Center, while also attending the University as a graduate

student. He had a valid license to carry a concealed deadly weapon pursuant
to KRS 237.110 ("concealed carry license"). On April 22, 2009, several of
Mitchell's coworkers were under the impression that he had a firearm in his
employee locker. The employees reported this to hospital administration.
Hospital administrators contacted the University of Kentucky Police
Department. When questioned, Mitchell denied having a firearm in his locker.
Police and hospital administrators searched Mitchell's locker with his
permission, but found no weapons. Mitchell informed officers that he had a
concealed carry license and admitted that he kept a firearm in his vehicle,
which was parked on University property at Commonwealth Stadium. UK
suspended Mitchell's employment pending an investigation.
Campus police escorted Mitchell to his car, where he showed them the
semiautomatic pistol he had stored in his vehicle. In their respective briefs, the
parties agree that Mitchell's weapon was stored in the vehicle's glove
compartment. However, at an unemployment benefits hearing, Mitchell
testified that the weapon was stored in his vehicle's armrest. Police confiscated
the weapon pending an investigation. On April 29, 2009, the University
terminated Mitchell's employment for violation of its policy prohibiting
2
possession of a deadly weapon on University property or while conducting
University business.
Mitchell filed suit, alleging termination in violation of public policy,
specifically, his right to bear arms as set forth in the United States
Constitution, the Kentucky Constitution, and the Kentucky Revised Statutes.
After interpreting the relevant statutory provisions, the circuit court concluded
that UK terminated Mitchell pursuant to a policy authorized by law. The
circuit court granted summary judgment in favor of UK, finding that there was
no genuine issue of material fact, and that UK was entitled to judgment as a
matter of law. After filing a notice of appeal, Mitchell filed a motion to transfer
the appeal from the Court of Appeals to this Court. This Court then granted
Mitchell's motion. CR 74.02.
II. ANALYSIS
"The standard of review on appeal of a summary judgment is whether the
trial court correctly found that there were no genuine issues as to any material
fact and that the moving p‘arty was entitled to judgment as a matter of law."
Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370 (Ky. 2010) (quoting Scifres v.
Kraft,916 S.W.2d 779, 781 (Ky. App. 1996)). "Because summary judgment
involves only legal questions and the existence of any disputed material issues
of fact, an appellate court need not defer to the trial court's decision and will
review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App.
2001) (footnote omitted).
3
Mitchell contends he was wrongfully terminated in violation of public
policy. Ordinarily, an at-will employee may be discharged "for good cause, for
no cause, or for a cause that some might view as morally indefensible.".
Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983) (citing
Production Oil Co. v. Johnson, 313 S.W.2d 411 (Ky. 1958); Scroghan v. Kraftco
Corp.,551 S.W.2d 811 (Ky. App. 1977)). However, there is "a narrow public
policy exception" to the terminable-at-will doctrine, which is subject to the
following limitations:
1) The discharge must be contrary to a fundamental
and well-defined public policy as evidenced by existing
law.
2) That policy must be evidenced by a constitutional or
statutory provision.
3) The decision of whether the public policy asserted
meets these criteria is a question of law for the court
to decide, not a question of fact.
Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). See also Firestone, 666
S.W.2d at 731 (quoting Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834, 835
(Wis. 1983)). In addition, a discharge is actionable as being contrary to public
policy only (1) where there are "explicit legislative statements prohibiting the
discharge," (2) where "the alleged reason for the discharge . . . was the
employee's failure or refusal to violate a law in the course of employment," or
(3) when "the reason for the discharge was the employee's exercise of aright
conferred by well-established legislative enactment." Hill v. Kentucky Lottery
Corp.,327 S.W.3d 412, 422 (Ky. 2010) (quoting Grzyb,700 S.W.2d at 402).
4
It is beyond question that public institutions of higher education have
"the power and authority to govern and control the method and purpose of use
of property owned or occupied by their respective institution[s] . . . ."
KRS 164.975(1). In O'Leary v. Commonwealth, our predecessor Court
recognized the authority of a public university to control the use of its property.
441 S.W.2d 150, 156-57 (Ky. 1969). The narrow question presented in this
case is whether any fundamental and well-defined public policy limits the
authority of a university to control the possession of deadly weapons on its
campus, and therefore renders Mitchell's termination unlawful as a violation of
public policy.
"[T]he long-standing practice of this Court is to refrain from reaching
constitutional issues when other, non-constitutional grounds can be relied
upon."Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006) (citing Dawson v.
Birenbaum,968 S.W.2d 663 (Ky. 1998)). Therefore, to determine whether UK's
termination of Mitchell violated public policy, i.e., the right to bear arms, we
begin by examining the relevant sections of the Kentucky Revised Statues.
A. Provided Mitchell Stored His Weapon in His Vehicle's Glove
Compartment, His Discharge Was Contrary to KRS 527.020(8)
Mitchell asserts a cause of action for termination in violation of public
policy under KRS 527.020(8). 1 KRS 527.020 is a criminal statute, which
prohibits the carrying of a concealed weapon. KRS 527.020(1). The statute
I Subsequent to the events at issue in this case, the General Assembly amended
KRS 527.020(8). See2011 Ky. Acts ch. 64, § 1. Because these revisions are not
retroactive, we address the statute as it was written at the time of Mitchell's
termination.
then proceeds to describe exceptions. KRS 527.020(8) applies generally to all
persons: 2
A firearm or other deadly weapon shall not be deemed
concealed on or about the person if it is located in a
glove compartment, regularly installed in a motor
vehicle by its manufacturer, regardless of whether said
compartment is locked, unlocked, or does \ not have a
locking mechanism. No person or organization,
public or private, shall prohibit a person from
keeping a firearm or ammunition, or both, or other
deadly weapon in a glove compartment of a vehicle
in accordance with the provisions of this
subsection.Any attempt by a person or organization,
public or private, to violate the provisions of this
subsection may be the subject of an action for
appropriate relief or for damages in a Circuit Court or
District Court of competent jurisdiction.
(Emphasis added.)
"When the words of the statute are clear and unambiguous and express
the legislative intent, there is no room for construction or interpretation and
the statute must be given its effect as written." McCracken County Fiscal Court
v. Graves, 885 S.W.2d 307, 309 (Ky. 1994) (quoting Lincoln County Fiscal Court
v. Dep't of Public Advocacy, 794 S.W.2d 162, 163 (Ky. 1990)); see also Griffin v.
City of Bowling Green, 458 S.W.2d 456, 457 (Ky. 1970). The words of
KRS 527.020(8) are clear and unambiguous. It forbids a public organization,
such as a university, from prohibiting the possession of a firearm in the glove
2 The current version of the statute specifies that it does not apply "to any person
prohibited from possessing a firearm pursuant to KRS 527.040" (i.e., persons
convicted of a felony).
6
compartment of a vehicle. There can be no other reasonable interpretation of
the statutory language.
Provided Mitchell stored his weapon in his vehicle's glove compartment,
UK violated KRS 527.020(8). The statute also provides Mitchell with a cause of
action "for appropriate relief or for damages in a Circuit Court or District Court
of competent jurisdiction." Mitchell's discharge was therefore contrary to
KRS 527.020(8), provided his weapon was in fact stored in the glove
compartment of his vehicle. Because there is also evidence in the record that
Mitchell stored his weapon in his vehicle's armrest, 3 we now consider the
applicability of KRS 527.020(4).
B. Because Mitchell Had a Valid Concealed Carry License, His
Discharge Was Contrary to KRS 527.020(4)
KRS 237.110 authorizes the issuance of, and establishes standards for,
concealed carry licenses. KRS 237.115 concerns the construction of
KRS 237.110. It states, in relevant part,
Except as provided in KRS 527.020, nothing
contained in KRS 237.110 shall be construed to limit,
restrict, or prohibit in any manner the right of a
college, university, or any postsecondary education
facility, including technical schools and community
colleges, to control the possession of deadly weapons
on any property owned or controlled by them . . . .
3 Under the current version of KRS 527.020(8), a weapon is deemed to not be
concealed if it is stored in "any enclosed container, compartment, or storage space
installed as original equipment in a motor vehicle by its manufacturer, including but
not limited to a glove compartment, center console, or seat pocket . . . ."
7
KRS 237.115(1) (emphasis added). Thus, universities, including UK, have an
implicit right to control the possession of deadly weapons on property under
their control. But this right is qualified by KRS 527.020.
KRS 527.020(8), discussed above, applies to persons regardless of
whether they hold concealed carry licenses. KRS 527.020(4), by contrast,
applies only to persons, like Mitchell, licensed to carry a concealed deadly
weapon:
Persons, except those specified in subsection (5) of this
section, licensed to carry a concealed deadly weapon
pursuant to KRS 237.110 may carry a firearm or other
concealed deadly weapon on or about their persons at
all times within the Commonwealth of Kentucky, if the
firearm or concealed deadly weapon is carried in
conformity with the requirements of that section.
Unless otherwise specifically provided by the Kentucky
Revised Statutes or applicable federal law, no criminal
penalty shall attach to carrying a concealed firearm or
other deadly weapon with a permit at any location at
which an unconcealed firearm or other deadly weapon
may be constitutionally carried. No person or
organization, public or private, shall prohibit a
person licensed to carry a concealed deadly
weapon from possessing a firearm, ammunition, or
both, or other deadly weapon in his or her vehicle
in compliance with the provisions of KRS 237.110
and 237.115. Any attempt by a person or
organization, public or private, to violate the provisions
of this subsection may be the subject of an action for
appropriate relief or for damages in a Circuit Court or
District Court of competent jurisdiction.
(Emphasis added.)
"Only if the statute is ambiguous . . . or otherwise frustrates a plain
reading, do we resort to the canons or rules of construction . . . ." King Drugs,
Inc. v. Commonwealth, 250 S.W.3d 643, 645 (Ky. 2008) (citingStephenson v.
8
Woodward,182 S.W.3d 162 (Ky. 2005)). When the application of two statutes
leads to an apparent conflict, this Court has a duty, to the extent possible, to
harmonize the statutes and give force and effect to each. Spees v. Kentucky
Legal Aid, 274 S.W.3d 447, 450 (Ky. 2009); see also MPM Finaiicial Group, Inc.
v. Morton, 289 S.W.3d 193, 198 (Ky. 2009). However, when statutory
provisions are in conflict and cannot be harmonized, "our duty is to construe
the statutes so as to ascertain and give effect to the intent of the General
Assembly."Johnson v. Branch Banking & Trust Co., 313 S.W.3d 557, 559 (Ky.
2010).
On its face, the emphasized portion of KRS 527.020(4) is not ambiguous.
It forbids public and private organizations from imposing any prohibition on
possession of a deadly weapon in a vehicle, provided that (1) the person so
possessing is properly licensed to carry a concealed deadly weapon, and (2) the
person is in compliance with KRS 237.110 (which authorizes and regulates
concealed carry licenses) and KRS 237.115 (which provides rules of
construction for KRS 237.110).
However, when KRS 527.020(4) is read in conjunction with
KRS 237.115(1) and applied to this case, a clear conflict arises.
KRS 237.115(1) allows institutions of postsecondary education to control
weapons on their property, "[e]xcept as provided in KRS 527.020 . . . ."
However, KRS 527.020(4) refers to a person possessing a deadly weapon "in his
or her vehicle in compliance with the provisions of KRS 237.110 and 237.115."
9
(emphasis added). This creates circularity in the two statutes, with each
referring back to the other as controlling.
To resolve this conflict, we look to the intent of the General Assembly.
First, KRS 527.020(4), the provision relied upon by Mitchell, applies only to
those licensed to carry concealed deadly weapons pursuant to KRS 237.110.
KRS 237.115, the conflicting statute, provides guidance in the construction of
KRS 237.110. However, KRS 237.110 itself provides a clear rule of
construction, stating that "[t]his section shall be liberally construed to carry
out the constitutional right to bear arms for self-defense." KRS 237.110(19).
This clearly expresses the legislature's intent and favors the right to bear arms
of a concealed carry licensee.
In addition, the General Assembly has expressed a strong public policy in
favor of exempting a person's vehicle from restrictions on the possession of
deadly weapons. For example, KRS 527.070, the statute that criminalizes
possession of a weapon on primary and secondary school property, 4 specifically
exempts an adult who possesses a firearm contained in his or her vehicle,
provided the firearm is not removed. KRS 527.070(3)(a). KRS 237.106(1)
specifically forbids any person (including an employer) from prohibiting a
person from possessing a firearm in his or her vehicle, provided the person is
legally entitled to possess the firearm. See also KRS 237.110(17) (forbidding
4 This statute does not apply to "institutions of postsecondary or higher education."
KRS 527.070(1).
10
private employers from prohibiting an employee from keeping a weapon is his
or her vehicle, provided the employee has a concealed carry license).
To the extent that KRS 527.020(4) and KRS 237.115(1) are in direct
conflict, we hold that the conflict must be resolved in favor of KRS 527.020(4).
We base this on. the General Assembly's explicit statement that the concealed
carry licensing statute is to be liberally construed in favor of the right to bear
arms, as well as the legislature's clearly expressed policy of exempting a
person's vehicle from firearms regulation.
This interpretation best accomplishes the goal of giving effect to the
words of both statutes. It also best harmonizes the two statutes by protecting
the right of concealed carry licensees to store weapons anywhere in their
vehicle, pursuant to KRS 527.020(4), while permitting universities to controls
the possession of deadly weapons on all other property, pursuant to
KRS 237.115(1), subject only to the general limitations of KRS 527.020. 6
5 The parties have argued at length over what is meant by the use of the term "control
the possession of deadly weapons" with respect to universities in KRS 237.115(1),
while the same statute recognizes the right of local governments "to prohibit the
carrying of concealed deadly weapons by licensees in that portion of a building
actually owned, leased, or occupied by that unit of government." (emphasis added).
We need not exhaustively consider this issue to resolve this case. We note, however,
that a university has a right to "control" all deadly weapons on all property it owns or
controls. KRS 237.115(1). By contrast, a local government's right to "prohibit" applies
only to concealed deadly weapons, and only in a building. Id. Nothing in this opinion
should be construed to limit a postsecondary educational institution's generally
recognized right to control the possession of deadly weapons outside of the limited
circumstances exempted from control by KRS 527.020.
6 In addition to the exceptions in KRS 527.020(4) and (8), KRS 527.020 authorizes a
number of other persons to carry concealed deadly weapons under various
circumstances. See KRS 527.020(2) (peace officers and certified court security
officers, United States mail carriers, and agents and messengers of express companies
when necessary for their protection in the discharge of their official duties);
11
C. Despite Being Part of the Penal Code, KRS 527.020 Authorizes a
Civil Cause of Action
As explained above, pursuant to KRS 527.020(4) and (8), UK improperly
prohibited Mitchell from keeping a firearm in his glove compartment (pursuant
to KRS 527.020(8)) or anywhere else in his vehicle (pursuant to
KRS 527.020(4), because Mitchell had a concealed carry license). We are not
persuaded by UK's argument that, because KRS 527.020 is a criminal statute,
it has no applicability to a civil suit for wrongful termination. While
KRS 527.020 is primarily a criminal statute, which is codified in the penal
code, KRS 527.020(4) and (8) also specifically contemplate and authorize a civil
cause of action. "Any attempt by a person or organization, public or private, to
violate the provisions of this subsection may be the subject of an action for
appropriate relief or for damages in a Circuit Court or District Court of
competent jurisdiction." KRS 527.020(4) & (8) (emphasis added).
D. Because Mitchell Was Legally Entitled to Possess a Firearm in His
Vehicle, His Discharge Was Contrary to KRS 237.106
Mitchell also asserts that his discharge was contrary to KRS 237.106. It
provides, in relevant part:
KRS 527.020(3) (conservation officers of the Department of Fish and Wildlife
Resources and police officers directly employed by state, county, city, or urban-county
governments at all times if authorized by their respective departments);
KRS 527.020(5) (prosecutor's and active and retired justices and judges in all places
except detention facilities, provided they hold a valid concealed carry license);
KRS 527.020(6) (sheriffs, jailers, deputies, and other corrections employees at all times
in all places if expressly authorized and in compliance with training requirements);
KRS 527.020(7) (a full-time paid peace officer or elected sheriff from another
jurisdiction at all times in Kentucky provided the other jurisdiction accords Kentucky
peace officers the same rights by law).
12
(1) No person, including but not limited to an
employer, who is the owner, lessee, or occupant of real
property shall prohibit any person who is legally
entitled to possess a firearm from possessing a
firearm, part of a firearm, ammunition, or ammunition
component in a vehicle on the property.
(4) An employer that fires, disciplines, demotes, or
otherwise punishes an employee who is lawfully
exercising a right guaranteed by this section and who
is engaging in conduct in compliance with this statute
shall be liable in civil damages. An employee may seek
and the court shall grant an injunction against an
employer who is violating the provisions of this section
when it is found that the employee is in compliance
with the provisions of this section.
(5) The provisions of this section shall not apply to any real property:
(c) Where a section of the Kentucky Revised Statutes specifically prohibits possession or carrying of firearms on the property.
UK argues that subsection (5)(c) relieves it of liability for terminating Mitchell,
because KRS 237.115 is "a section of the Kentucky Revised Statutes" that
"specifically prohibits possession or carrying of firearms on the property."
As explained above, KRS 237.115, while recognizing the implicit right of
a university to control weapons on its campus, is limited by KRS 527.020.
Because KRS 527.020(4) and (8) specifically permitted Mitchell to store a
firearm in his vehicle, even while on University property, UK has failed to point
to "a section of the Kentucky Revised Statutes [that] specifically prohibits
13
possession or carrying of firearms on the property." KRS 237.106(5)(c).
Mitchell's discharge was therefore contrary to KRS 237.106(4).
III. CONCLUSION
Mitchell has established that his discharge was contrary to a
fundamental and well-defined public policy, i.e., the right to bear arms, as
evidenced by existing statutory provisions, namely, KRS 237.106,
KRS 237.110, and KRS 527.020. See Grzyb, 700 S.W.2d at 401. Further,
Mitchell has established that an explicit legislative statement, KRS 237.106(4),
prohibited his discharge, and that the reason for his discharge was his exercise
of a right conferred by well-established legislative enactments in
KRS 527.020(4) and (8). See Hill, 327 S.W.3d at 422. UK was not entitled to
judgment as a matter of law.
For the foregoing reasons, the judgment of the Fayette Circuit Court is
reversed. The case is hereby remanded to that court for proceedings consistent
with this opinion.
Cunningham, Noble, and Venters, JJ., concur. Scott, J., concurs in
result only without separate opinion. Abramson, J., concurs in result only by
separate opinion in which Minton, C.J., joins.
ABRAMSON, J., CONCURRING IN RESULT ONLY: Although I am
obliged, given the current statutes, to concur in the result the majority reaches
in this case—that the University of Kentucky's termination of Mr. Mitchell's
employment was wrongful if it is established that he kept his gun in his glove
compartment and not in some other part of his vehicle—I write separately
14
because there are significant aspects of the majority's analysis with which I
disagree. I do not agree that the statutes involved--KRS 237.110, KRS
237.115, and KRS 527.020--are circular or involve conflicts in any way
suggesting that KRS 237:115 is superseded or invalid. Nor do I agree that
aside from the express exception created by KRS 527.020(8) there is anything
in the public policy of this Commonwealth that would preclude the University
from sanctioning a student or an employee who violates its rules regarding
guns on its property.
In their particulars the statutes at issue are somewhat complex, but the
overall statutory structure is clear enough. KRS 237.110 mandates the
issuance to qualified applicants of a license to carry concealed a deadly weapon
and defines who is a qualified applicant. KRS 527.020(4) then gives substance
to the license by providing that Iplersons . . . licensed to carry a concealed
deadly weapon pursuant to KRS 237.110 may carry a firearm or other
concealed deadly weapon on or about their persons at all times within the
Commonwealth of Kentucky, if the firearm or concealed deadly weapon is
carried in conformity with the requirements of that section."
The concealed carry privilege is not unlimited, however. KRS 527.020(4)
further provides that "[n]o person or organization, public or private, shall
prohibit a person licensed to carry a concealed deadly weapon from possessing
a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in
compliance with the provisions of KRS 237.110 and KRS 237.115." KRS
237.115, of course, is the statute providing that the concealed carry law is not
15
to be construed "to limit, restrict, or prohibit in any manner the right of a
college, university, or any postsecondary education facility, including technical
schools and community colleges, to control the possession of deadly weapons
on any property owned or controlled by them." Under KRS 527.020(4), then,
the University's right to control deadly weapons on its property remains intact
even with respect to deadly weapons in a licensed carrier's vehicle.?
However, as the licensed carrier's rights are not absolute, neither are the
University's. For exceptions to the University's right, KRS 237.115 refers back
to KRS 527.020, a statute in which several of the sections identify persons or
officials whose concealed carry rights enjoy heightened protection. 8 Among
7 Much like KRS 527.020(4), KRS 237.106 provides that no owner, lessee, or
occupant of real property, including an employer, "shall prohibit any person who is
legally entitled to possess a firearm from possessing a firearm, part of a firearm,
ammunition, or ammunition component in a vehicle on the property." This statute
obviously conflicts with the University's express right under KRS 237.115 and KRS
527.020(4) to control the presence of firearms in vehicles in its property, and since
these latter statutes address the rights of one particular kind of property owner—postsecondary
school educational institutions—whereas KRS 237.106 addresses property
owners in general, the more particular statutes should control, and the University's
right should not be deemed affected by KRS 237.106. Light v. City of Louisville, 248
S.W.3d 559 (Ky. 2008) (applying the rule that a more specific statute controls a more
general one.). The majority's contrary holding disregards this standard rule of
statutory construction.
8 KRS 237.115 provides that "[e]xcept as provided in KRS 527.020, nothing
contained in KRS 237.110 shall be construed . . ." The majority understands the
reference to KRS 527.020 to create a circle between the two statutes—KRS 527.020(4)
applying except for KRS 237.115, and KRS 237.115 applying except for KRS
527.020(4)—and then uses the purported circularity as the occasion for its claim that
KRS 237.115 has been superseded by KRS 527.020(4). The statutes, however, while
perhaps not models of clarity, are not circular. KRS 237.115 does not refer back to
KRS 527.020(4). It refers to KRS 527.020 in its entirety and makes perfect sense if
understood as excepting from KRS 237.115 all those subsections of KRS 527.020
which do not, as KRS 527.020(4) does, incorporate KRS 237.115. Our duty is to
construe statutes so as to avoid conflicts, if possible, and to give effect to every
provision. Light v. City of Louisville, 248 S.W.3d at 563 (citing City of Bowling Green v.
Board of Education of Bowling Green Independent School District, 443 S.W.2d 243 (Ky.
16
such persons are peace officers; certified court security officers; United States
mail carriers, KRS 527.020(2); policemen, KRS 527.020(3); Commonwealth
attorneys; county attorneys; judges, both active and retired, KRS 527.020(5);
sheriffs and their deputies; jailers and their deputies; and certain corrections
department officials and employees, KRS 527.020(6). All of these persons are
excepted from the University's general right to control deadly weapons on its
property. These exceptions are not surprising, and to this point the statutes
seem to work together smoothly enough.
The rub comes, of course, with KRS 527.020(8). Unlike the preceding
sections, which identify particular persons and officials whose sensitive
positions can be thought to justify concealed carry rights less restricted than
an ordinary license holder's, KRS 527.020(8) applies to carriers more generally.
At the time Mr. Mitchell was discharged, it provided that a deadly weapon,
including a firearm, "shall not be deemed concealed on or about the person if it
is located in a glove compartment, regularly installed in a motor vehicle by its
manufacturer, regardless of whether said compartment is locked, unlocked, or
does not have a locking mechanism." 9 Because under KRS 237.115, a
university can control deadly weapons on its property whether concealed or
not, this portion of the statute, first enacted in 1978, would not affect its
authority.
1969). The majority instead has created a conflict so as to limit the effect of KRS
237.115.
9 This language was revised in 2011 to include any factory-installed enclosed
container, compartment or storage space including a center console or seat pocket.
17
However, KRS 527.020(8) continues with the following language added in
2002: "No person or organization, public or private, shall prohibit a person
from keeping a firearm or ammunition, or both, or other deadly weapon in a
glove compartment of a vehicle in accordance with the provisions of this
subsection.") With the amendment, is this subsection now meant to be
among the KRS 527.020 exceptions to KRS 237.115? That is, notwithstanding
its general authority to control, deadly weapons on its property, and
notwithstanding its express authority under KRS 527.020(4) to control deadly
weapons in a licensed carrier's vehicle, are we to understand that the
University is now powerless to keep its students and employees from stashing
loaded guns in the unlocked glove compartments of their unlocked vehicles,
not only powerless but actually subject to student lawsuits if it seeks to rid its
parking lots of that hazard? That result strikes me, as I am sure it will strike
many parents, as an affront to common sense. It is certainly a radical
departure from the long practice in this Commonwealth of allowing universities
and other institutions of post-secondary education to decide for themselves
how best to safeguard their students. Centre College v. Trzop, 127 S.W.3d 562
10 The University maintains that since KRS 527.020 is a penal statute this
provision should be understood as forbidding only the criminalization or quasicriminalization
of glove-compartment carrying, not the sort of workplace regulation at
issue. It notes that it did not require Mr. Mitchell to park on University property and
so did not, in a strict sense of the term, "prohibit" him from carrying his gun.
Although I agree with the University that the Penal Code is an odd place to find
statutes purporting to compel employers and property owners to tolerate unwanted
guns in their parking lots, that clearly is what KRS 527.020(4) and KRS 527.020(8)
purport to do. The University has provided no authority for its suggestion that penal
statutes cannot include such non-penal objects.
18
(Ky. 2004) (citing Kentucky Military Inst. v. Bramblet, 158 Ky. 205, 164 S.W.
808 (1914)).
I am constrained, nevertheless, given this Court's duty to uphold the
plainly expressed intent of the General Assembly, to agree with the majority
that it is the result the statutory language requires. As the majority notes,
when the General Assembly meant to exempt universities and colleges and
other post-secondary schools from the similar vehicle provisions of KRS
527.020(4) it did so expressly. The unavoidable implication is that had it
meant to exempt the University from the glove compartment rule of KRS
527.020(8) it would again have made the exemption express by referencing
KRS 237.115. Very reluctantly, therefore, I concur in the majority's result but
only because a different statutory analysis compels that same result. If on
remand it is determined that Mr. Mitchell's gun was stored in his vehicle's
glove compartment, then his termination for having breached the University's
safety code was wrongful under KRS 527.020(8).
Minton, C.J., joins.
19
COUNSEL FOR APPELLANT:
Christopher Derek Hunt
P.O. Box 23129
Lexington, KY 40523-3129
COUNSEL FOR APPELLEES:
Barbara Ann Kriz
Baker, Kriz, Jenkins, Prewitt & Jones, PSC
PNC Bank Plaza
200 West Vine Street, Suite 710
Lexington, KY 40507-1620
COUNSEL FOR AMICI CURIAE COUNCIL OF POSTSECONDARY EDUCATION,
EASTERN KENTUCKY UNIVERSITY, KENTUCKY STATE UNIVERSITY,
MOREHEAD STATE UNIVERSITY, MURRAY STATE UNIVERSITY, NORTHERN
KENTUCKY UNIVERSITY, UNIVERSITY OF LOUISVILLE, AND WESTERN
KENTUCKY UNIVERSITY:
Gregory N. Stivers
Kerrick, Stivers, & Coyle, PLC
1025 State Street
P.O. Box 9547
Bowling Green, KY 42102-9547
COUNSEL FOR AMICUS CURIAE THE NATIONAL RIFLE ASSOCIATION:
Leslie B. Goff Sanders
Webb Sanders PLLC
2784 Highway 31W
White House, TN 37188
COUNSEL FOR AMICUS CURIAE KENTUCKY HOSPITAL ASSOCIATION:
Wesley Reed Butler
Barnett Benvenuti & Butler PLLC
489 E. Main St., Suite 300
Lexington, KY 40507-1541
20

HB 500 is now the law

On April 11th, Gov. Beshear signed HB 500 and two other gun-friendly bills.

See the NRA press release on the bills here.

Now, when any public or private or semi-public entity enacts an illegal restriction on firearms, we can use the provisions of this bill to make them pay for their actions. No more scoffing at the law, no more local tyrants doing as they please.
A big hat tip to Take Back Kentucky for the work that they did in coordination with KC3 to spread the word and move the votes on these issues in this session.
Be sure to contact Rep. Robert Damron and give him a big THANK YOU for the work he did to move this bill. And if your representative or senator voted in favor of it, be sure to thank them as well.
When we unite and are motivated, we can still make things happen!

Waiting for the Governor's signature...

HB500 and other good bills are waiting on the Governor's signature.
From the House web page.
"Mar 30-enrolled, signed by President of the Senate; delivered to Governor "

HB 500 is on the fast track to becoming law.

House Bill 500 was passed by unanimous vote in the Senate Judiciary committee this week!

Now it's gone to the unanimous consent list, and on Monday, if none of the Senators objects to it, it will be passed by unanimous consent and won't have to have a floor vote. Then it goes straight to the Governor for his signature. Wow! This is outstanding and beyond anything we anticipated when we got behind this bill to support it.

KC3 will continue to keep you posted on the status of the bill, but we look forward to being able to tell you that it's over the top very soon.

Kentucky Gun Shows through December 2012

If you know of any others, I'd be happy to include them.

Mar 24-25 Cave City, Convention Center, Sat 9-5 sun 9-4 Website David Fulton 270-749-2109

Mar 24-25 London Laural London Optimist Club, 383 Sinking Creek Rd RK Shows 563-927-8176 email: kehrli@n-connect.net

Mar 24-25 Owensboro, Owensboro Sports Center' tbls $45, A: $5, Show Hours Sat 9-5 Sun 9-4 Midwest Promotions 270-521-6959 or 270-318-2128 cell 270-724-1684

Mar 31-Apr 1 KY Louisville, Kentucky Fairgrounds & Expo Center, West Hall A & B, 937 Phillips Lane RK Shows 563-927-8176 email: kehrli@n-connect.net

Jun 9-10 Louisville, Kentucky Fair& Expo Center, National Gun Day and JAG Military Show, , www.Nationalgunday.com

Sep 22-23 Louisville, Kentucky Fair& Expo Center, National Gun Day and JAG Military Show, , www.Nationalgunday.com

Oct 6-7 Cave City, Convention Center, Sat 9-5 sun 9-4 Website David Fulton 270-749-2109

Oct 12-14 KY Knob Creek, Machine Gun Shoot and Military Gun Show http://www.knobcreekrange.com/

Nov 17-18 Cave City, Convention Center, Sat 9-5 sun 9-4 Website David Fulton 270-749-2109

Dec 8-9 Louisville, Kentucky Fair& Expo Center, National Gun Day and JAG Military Show, , www.Nationalgunday.com

"No Weapons" references no longer on Louisville Zoo website.

I jumped over to the Louisville Zoo Rules page, and there are no longer any references to guns or other weapons online. That's the way it should be.
If you happen to see them someplace else, please let us know.
GBW

HB 500 in Senate Judiciary Committe March 22nd.

 HB 500 has been assigned to the Senate Judiciary Committee.

 We need to start sending messages to the committee members by phone and email "move HB 500 out of committee and onto the Senate Floor with a favorable report".

• Sen. Tom Jensen [Chair]
• Sen. Katie Stine [Vice Chair]
• Sen. Perry B. Clark
• Sen. Carroll Gibson
• Sen. Ray S. Jones
• Sen. Jerry P. Rhoads
• Sen. John Schickel
• Sen. Dan "Malano" Seum
• Sen. Brandon Smith
• Sen. Robert Stivers
• Sen. Robin L. Webb

 Let's not take anything for granted. Get those phone calls and emails started!

 
The next scheduled meeting of this committee is Thursday, March 22. This is the last scheduled meeting of the committee in this session. It's now or never. That would give us 4 days to get it onto the floor and passed. Let's hit these committee members with all we've got, then on Friday we can start on the entire Senate membership.

HB 500 is in the Kentucky Senate!!

Good news for gun owners in Kentucky - House Bill 500 has been passed by the House and received in the Senate. The potentially bill-killing amendment has been removed and the clean bill should pass, but ONLY if all of us put the pressure on the Senate to make it move! Contact your Senator, and most especially contact Senator David Williams' office to let him know that the spotlight is on him and we will NOT be happy if he doesn't help us, or if he works to kill this bill!

Call your Senator and tell him to support and vote for this bill!!

The ethics of going armed.

Marco over at The Munchkin Wrangler has written a good post about the ethics of going armed.
Read it here. Be sure to read the linked blog post from Kit Lear before you start Marco's post.

"...while I believe that most people are decent and good, I know–without the shadow of a doubt–that some people aren’t. And here’s the thing about those that aren’t: they are not good to a degree that most of my liberal friends who dislike guns and write off armed people as paranoid hicks can’t comprehend. We’re not talking about “swiping the cash box from girl scouts” bad. Some people have decided to abandon the social contract so entirely that you are not a real person to them. You’re just the thing they need to get rid of to get at the wallet and the car keys in your pocket, like a wrapper around a candy bar that needs to be ripped off and discarded before you can get to the nougat."

Second Amendment: Two Victories - Colorado and Maryland

from www.patriotpost.us

Score one -- make that two -- bull's-eyes for the Constitution. This week, judges in two court cases reaffirmed the Second Amendment right to bear arms by striking down two separate gun bans. In Maryland, a federal judge ruled as unconstitutional the state's requirement that individuals provide "good and substantial reason" to purchase a handgun. Addressing a case in which a resident had obtained a gun permit a decade ago after warding off an intruder only to have the permit renewal application denied because he could not show he had been threatened "beyond his residence," the judge noted, "A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights. The right's existence is all the reason he needs." Tally, one.

Meanwhile, in Colorado, the state Supreme Court ruled that the University of Colorado's ban on carrying concealed handguns on campus didn't pass legal muster because the state legislature never approved the ban. Under the state's Concealed Carry Act of 2003, local governments cannot stifle concealed carry rights except in certain specific places, such as private property and K-12 schools. Colleges are not among the exceptions. Tally, two.

Naturally, Second Amendment foes will whine that more guns mean more violence. The evidence, however, is not on their side. Neither, for that matter, is the Constitution.

Another pro-gun legal victory!

The police get spanked for violating a Pennsylvanian's right to carry, and he collects the cash.

Read it here.
Is it going to take required training for police officers before they collectively begin to show respect for our civil rights as a whole?

House Bill 500 is moving to the floor for a vote

The Judiciary committee voted HB500 out with a favorable report on Wednesday, and it's scheduled for a third reading today, Friday.

After it passes the House then we begin the effort to get it passed through the Senate, which will require that all of us make an effort to convince the Republican leadership there that they MUST move and pass this bill! Nothing less will be acceptable to the gun owners of Kentucky!
Senator Damon Thayer is already on board to help in passage of this bill when it arrives. Now would be a good time for all of us to contact our own senators to let them know we don't want to see this bill die as a victim of neglect or parliamentary chicanery!

Gun bills get hearing in Kentucky House on Wednesday March 7th at noon.

Wednesday, March 7th (tomorrow as I post this), all the NRA backed gun bills will be considered at the Kentucky House Judiciary Committee meeting at noon. Below was taken directly from the LRC website.

If you can make it, come and be seen and heard at noon in Annex Room 171.

Noon, Annex Room 171
HOUSE STANDING COMMITTEE ON JUDICIARY

Agenda: Consideration of HB 111, HB 155, HB 156, HB 171, HB 396, HB 401, HB 433, HB 484, HB 500 and HB 563Members: Rep. John Tilley (Chair), Rep. Joseph M. Fischer, Rep. Sara Beth Gregory, Rep. Darryl T. Owens, Rep. Brent Yonts, Rep. Johnny Bell, Rep. Jesse Crenshaw, Rep. Kelly Flood, Rep. Jeff Hoover, Rep. Joni L. Jenkins, Rep. Thomas Kerr, Rep. Stan Lee, Rep. Mary Lou Marzian, Rep. Michael J. Nemes, Rep. Tom Riner, Rep. Steven Rudy
Click on any of the highlighted bill numbers for the text of the bills.

Any bill that moves to corral the scofflaw local officials and strengthen preemption is a good bill.
Hope to see you there.

New bill in the House. HB500

There are now THREE bills filed in this session to deal with the scofflaw cities and counties that ignore/defy KRS 65.870, the preemption law.
HB290
HB500
SB161

HB 500 is the latest, and starts life with 34 sponsors as of last count.
You can read the text here.

All three bills are different, and all of them put us in a better position that current conditions.
See the post below about how to contact your legislatures. Call them and let them know you support these bills!!

Interesting poll on WHAS-11 website

This poll is on their main page. Why don't you stop by and vote?

How to get in touch with your legislators

The LRC is the place to go for all information relating to the legislature

The single best resource for anything relating to the General Assembly is the Legislative Research Commission's web page at - http://www.lrc.ky.gov/
There's you'll find the links for members of the House and Senate, how to locate your legislators and how to track bills as well as contact information for the entire General Assembly.
Please be sure to make note of the contact information, and to pass it on to everyone you know who's ready to help us turn up the volume on HB290 and ensure its passage.

Gun show this weekend in Lexington

KC3 will be at the gun show at Heritage Hall in Lexington this weekend Feb. 4th and 5th, and the big topic of discussion will be our work with Take Back Kentucky for the passage of HB 290

If you can make come down and spend some time with us as we launch into our first major legislative effort in a decade. We're going to pass a bill that will allow us to smack down the local politicians who persist in enacting unlawful ordinances and posting illegal signage even after they've been warned and enlightened as to the law.

But it's going to take ALL OF US working hard, together, to make it happen. Join us and let us tell you how you can help!

House Bill 290, our push to put teeth into pre-emption

Here's the text of HB290, our proposed amendments to KRS 65.870 to put penalties in place for local governments that violate both that statute and the concealed carry law, KRS 237.110

AN ACT relating to the regulation of firearms, firearms parts and accessories, ammunition, and ammunition components.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1. KRS 65.870 is amended to read as follows:

(1) (a) Except as expressly provided by the Constitution of Kentucky or a specific statute, the General Assembly hereby declares that it is occupying the whole field of regulation of firearms, firearms parts and accessories, ammunition and ammunition components, including but not limited to the purchase, sale, transfer, taxation, manufacture, ownership, possession, carrying, storage, and transportation thereof, to the exclusion of all existing and future county, urban-county, charter county, consolidated local government, city, special district, local or regional public or quasi public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations from enacting, creating, or enforcing any ordinance, administrative regulation, executive order, policy, procedure, rule, or any other form of executive or legislative action or the spirit thereof adopted by a person or organization specified in this subsection relating thereto.

(b) An existing ordinance, executive order, administrative regulation, policy, procedure, rule, or any other form of executive or legislative action in violation of this section or the spirit thereof is hereby declared null, void, and unenforceable.

(c) Any person or organization specified in paragraph (a) of this subsection shall repeal, rescind, or amend to conform, any ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action in violation of this section or the spirit thereof within six (6) months of the effective date of this Act.

(2) (a) It is the intent of this section to:

1. Provide uniform firearms laws and firearms related laws in the state;

2. Declare any ordinance, administrative regulation, executive order, policy, procedure, rule, other form of executive or legislative action specified in subsection (1) of this section or the spirit thereof null, void, and unenforceable which have been enacted by any jurisdictions other than state and federal, which regulate firearms, firearms parts and accessories, ammunition, or ammunition components;

3. Prohibit the enactment of any future ordinance, administrative regulation, executive order, policy, procedure, rule, or any other form of executive or legislative action specified in subsection (1) of this section or the spirit thereof relating to firearms, firearms parts and accessories, ammunition, or ammunition components unless specifically authorized by this section or another specific statute; and

4. Require local jurisdictions to enforce state firearms laws.

(b) It is further the intent of this section to deter and prevent the violation of this section or the spirit thereof and the violation of rights protected under the Constitution and laws of this Commonwealth related to firearms, firearms parts and accessories, and ammunition components from the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local or state authority.

(3) (a) Any person or organization specified in subsection (1) of this section, that violates the General Assembly's occupation of the whole field of regulation of firearms, firearms parts and accessories, ammunition, and ammunition components as declared in subsection (1) of this section or the spirit thereof, by enacting or causing to be enforced any ordinance, administrative regulation, executive order, policy, procedure, rule or any other form of executive or legislative action impinging upon such exclusive occupation of the whole field shall be liable as set forth in this section.

(b) If any person or organization specified in subsection (1) of this section violates this section or the spirit thereof, the court shall declare the improper ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action specified in subsection (1) of this section invalid and issue a permanent injunction against the person or organization specified in subsection (1) of this section prohibiting the enforcement of such ordinance, administrative regulation, executive order, policy, procedure, rule. or any other form of executive or legislative action specified in subsection (1) of this section. It is no defense that in enacting the ordinance, administrative regulation, executive order, policy, procedure, rule, or other form of executive or legislative action specified in subsection (1) of this section or the spirit thereof, the person or organization was acting in good faith or upon advice of counsel.

(c) If the court determines that a violation was knowing or intentional, the court shall assess a fine of up to five thousand dollars ($5,000) against the elected or appointed official or officials or administrative agency head under whose jurisdiction the violation occurred.

(d) Except as required by applicable law, public funds shall not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section.

(e) A knowing or intentional violation of any provision of this section or the spirit thereof by a person acting in an official capacity for any entity enacting or causing to be enforced an ordinance, administrative regulation, executive order, policy, procedure, rule or other form of executive or legislative action prohibited under subsection (1) of this section or otherwise under color of law shall, as a part of the penalty for violation, cause the termination of employment or contract or removal from office by the court.

(f) Pursuant to Section 231 of the Constitution of Kentucky insofar as any person or organization specified in subsection (1) of this section is considered an agent of the Commonwealth, it is the intention of the General Assembly to exempt them from any immunity provided in Section 231 of the Constitution of Kentucky to the extent provided in this section. A person or an organization whose membership is adversely affected by any ordinance, administrative regulation, executive order, policy, procedure, rule or any other form of executive or legislative action promulgated or caused to be enforced in violation of this section or the spirit thereof may file suit against any person or organization specified in subsection (1) of this section in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, caused by the violation. A court shall award the prevailing plaintiff in any such suit:

1. Reasonable attorney's fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law;

2. Expert witness fees and expenses; and

3. The actual damages incurred. Interest on the sums awarded pursuant to this subsection shall accrue at the legal rate from the date on which suit was filed.

(4) This section does not prohibit:

(a) A zoning ordinance which is in compliance with KRS 100.325.

(b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties;

(c) Except as provided in Kentucky law, any entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee's official duties;

(d) A court or judge from hearing and resolving any case or controversy or issuing any opinion or order on a matter within the jurisdiction of that court or judge; or

(e) Subject to the provisions of KRS 150.172, the Kentucky Department of Fish and Wildlife Resources from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission[No city, county or urban-county government may occupy any part of the field of regulation of the transfer, ownership, possession, carrying or transportation of firearms, ammunition, or components of firearms or combination thereof].

UNOFFICIAL COPY AS OF DATE \@ "MM/dd/yy" 01/19/12 12 REG. SESS. 12 RS BR 825

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