Author Topic: Question Regarding Possession of a firearm in a Safe Recreation Zone  (Read 1179 times)

Seth

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So I have been reading up on the "relatively" new law regarding possession of a firearm in a Safe Recreation Zone.

https://delcode.delaware.gov/title11/c005/sc07/index.html#1457

And I am looking for some guidance. I am an engineer and not a lawyer so to those more well versed in law please forgive my ignorance, but am I correct in understanding that as a holder of a CCW permit I can legally carry in areas that would be defined as a Safe Recreation Zone?
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Just Bill

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #1 on: November 02, 2023, 08:55:32 PM »
I read. does not apply to CCW permit...unless in a vehicle.
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Oaklandopen

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #2 on: November 02, 2023, 09:23:52 PM »
I think basically it stays in your vehicle.  IE you're picking your kids up and staying in your car,  although it has to be locked up.  Total mind job..... you can have your tool, but you won't be allowed to easily get to it if needed


Seth

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #3 on: November 03, 2023, 02:10:17 PM »
So saw the part about staying in the vehicle for the safe school zone (1457A), but I don't see that as part of the safe recreation zone (1457).

Quote
§ 1457. Possession of a firearm in a Safe Recreation Zone; class D, E, or F felony; class A or B misdemeanor.

(a) Any person who commits any of the offenses described in subsection (b) of this section, or any juvenile who possesses a firearm and does so while in or on a “Safe Recreation Zone” shall be guilty of the crime of possession of a firearm in a Safe Recreation Zone.

(b) The underlying offenses in Title 11 shall be:

(1) Section 1442. — Carrying a concealed deadly weapon; class G felony; class D felony.

(2) Section 1444. — Possessing a destructive weapon; class E felony.

(3) Section 1446. — Unlawfully dealing with a switchblade knife; unclassified misdemeanor.

(4) Section 1448. — Possession and purchase of deadly weapons by persons prohibited; class F felony.

(5) Section 1452. — Unlawfully dealing with knuckles-combination knife; class B misdemeanor.

(6) Section 1453. — Unlawfully dealing with martial arts throwing star; class B misdemeanor.

(7) Section 1466. —

Manufacture, sale, transport, transfer, purchase, receipt, and possession of assault weapons; class E or F felony.

(c) For the purpose of this section:

(1) “Constable” means an individual who licensed under Chapter 56 of Title 24.

(2) “Firearm” means as defined in § 222 of this title and includes a destructive weapon as defined in § 1444(a) and (c) of this title and includes BB guns.

(3) “Police officer” means as defined in § 8401 of this title.

(4) “Safe Recreation Zone” means any building or structure owned, operated, leased or rented by any county or municipality, or by the State, or by any board, agency, commission, department, corporation or other entity thereof, or by any private organization, which is utilized as a recreation center, athletic field or sports stadium.

(d) Nothing in this section shall be construed to preclude or otherwise limit a prosecution of or conviction for a violation of this chapter or any other provision of law. A person may be convicted both of the crime of possession of a weapon in a Safe School and Recreation Zone and of the underlying offense as defined elsewhere by the laws of the State.

(e) It shall not be a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place on or in a Safe School and Recreation Zone.

(f) It shall be an affirmative defense to a prosecution for a violation of this section that the weapon was possessed pursuant to an authorized course of school instruction, or for the purpose of engaging in any school-authorized sporting or recreational activity. The affirmative defense established in this section shall be proved by a preponderance of the evidence. Nothing herein shall be construed to establish an affirmative defense with respect to a prosecution for any offense defined in any other section of this chapter.

(g) [Repealed.]

(h) This section does not apply to any of the following:

(1) A police officer.

(2) A constable employed by a recreation zone who is acting in that capacity within a Safe Recreation Zone.

(i) [Repealed.]

(j) The penalty for possession of a weapon in a Safe Recreation Zone shall be:

(1) If the underlying offense is a class B misdemeanor, the crime shall be a class A misdemeanor;

(2) If the underlying offense is an unclassified misdemeanor, the crime shall be a class B misdemeanor;

(3) If the underlying offense is a class E, F, or G felony, the crime shall be one grade higher than the underlying offense.

(4) If the underlying offense is a class D felony, the crime shall also be a class D felony.

(5), (6) [Repealed.]
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sprue

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #4 on: November 04, 2023, 06:22:05 PM »
With regard to 1457 I believe that since CCW carriers are exempt from 1442 no offence is being committed.
With regard to 1457A you can not carry a firearm into any school property (we are no longer exempt)
With regard to 1457B same as with school zones.

As I read this, it's carry on as usual but if you're picking up your kids stay on the public sidewalk and don't go inside the school grounds.

Edit: I am still in awe of the fact that they needed to change the law to specifically prevent the safest and most law-abiding citizens in the country from defending themselves and their families. There's no other reason for us to show up to a school in the first place other than picking up/dropping off or conducting parent-teacher meetings. As if having an armed constable occasionally be on the premises is enough of a deterrent.
« Last Edit: November 04, 2023, 06:29:41 PM by sprue »

MarcWinkman

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #5 on: January 02, 2024, 05:00:37 PM »
Basically, if you have a valid concealed weapons permit and are present with said concealed weapon in a place within the ambit of Section 1457, you're in the clear as long as the weapon is in the car.  As soon as the weapon leaves the car, you're in deep doo doo if caught.  Section 1457A(c)(4) along with Section 1457A(d)(2) are VERY narrow carve outs for us.  And yes, I am a lawyer.

Oaklandopen

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #6 on: January 02, 2024, 08:16:09 PM »
I still maintain that it's a secondary charge since I'm pretty sure no police will be doing stop- and- frisk type policy.

And being secondary means you had to have a reason for your concealment to be compromised.  And for most responsible CCW holders I would say the reason to expose the weapon would far outweigh any reason to keep it concealed.

Now,  I suppose if the only charge involved violating the new law it might be a good case for a constitutional argument? Who wants to be the bait?

sprue

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #7 on: January 02, 2024, 09:13:31 PM »
Basically, if you have a valid concealed weapons permit and are present with said concealed weapon in a place within the ambit of Section 1457, you're in the clear as long as the weapon is in the car.  As soon as the weapon leaves the car, you're in deep doo doo if caught.  Section 1457A(c)(4) along with Section 1457A(d)(2) are VERY narrow carve outs for us.  And yes, I am a lawyer.

Marc could you shed some light on the wording of section 1457 (b)(1)?
When 1457 says the underlying offense is section 1442, but section 1442 states that having a CCW license shall be a defense, that has led many people in this forum to believe that they are not committing any crime. I'm not thinking of schools, which are covered in 1457A very clearly, but rather walking around a park with an attached sports field that might be considered a stadium as defined by 1457(c)(4) or a public bathroom (maybe even a portapotty!) at the park since that would be considered a building or structure owned by the county.

MarcWinkman

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #8 on: January 04, 2024, 03:20:00 PM »
Sadly this is a tricky one, and a good example of statutes being written as clearly as mud.  The CCDW permit affirmative defense for a charge of violating 11 Del. C. Sec. 1442 (carrying a concealed deadly weapon) applies ONLY to that specific statute.  The nearest example I could think of that coming into play is if perhaps you were out and about, without your credentials on you for some reason or another and happened to have police contact that led to discovery of your concealed weapon.  That being said, 1) you should not be engaging in any activity that would lead to police contact, and 2) if said police contact were the result of someone calling in a tip about a person carrying a gun, you're not doing a very good job of staying concealed.

That said, as far as school stadiums that are not directly on campus (the sports field at Sallies and across the road for Tower Hill come to mind) would more than likely still fall within the ambit of Section 1457 if it is affiliated with the school.  As for stadiums etc. that are part of non-school property and not associated with a school system but are instead considered DNREC properties, the Delaware Supreme Court in Bridgeville Rifle and Pistol Club Ltd. v. Small, 176 A.3d 632 (Del. 2017) made clear that State AGENCIES are not authorized to adopt any regulations that are inconsistent with the state constitution.  This case invalidated the ban on carrying firearms in State parks except for during hunting season and in designated hunting areas.  The Kent County Superior Court further reinforced this when in Delaware State Sportsmen's Association v. Garvin, 196 A3d 1254 (Del. Super. 2018) that DNREC's designation of campsites and lodges as "sensitive areas" did not pass intermediate scrutiny.  Post-Bruen, this case would largely have been decided in the same manner, but the field preemption issue may have been decided differently since intermediate scrutiny has been kicked to the curb.

With respect to any other offenses that relate to carrying of firearms, the specific statute itself typically spells out the permit defense, however, when it does not or when in doubt, err on the side of caution, especially in our quasi communist state.

Oaklandopen

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #9 on: January 05, 2024, 03:30:04 PM »
Well even lumping in private property under the guise that it's being used as a "safe recreational zone" is complete bs

They are basically saying there's no difference between watching a game whilst carrying at Newark little league VFW stadium or you putting up an impromptu baseball field in your yard and inviting your friends over to play and you carrying at your own house

MarcWinkman

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #10 on: January 05, 2024, 04:29:14 PM »
Sadly this is one where someone is going to have to get pinched and convicted for the Supreme Court to review the constitutionality of the law as applied post-Bruen.  I for one will not volunteer to be that test case.

Oaklandopen

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #11 on: January 05, 2024, 06:55:06 PM »
Well hear me out and bear with me on this a sec....

What if aside from any other "wrongdoing" a person was found to have been in violation of one of these new laws,  thus becoming the key candidate for a constitutional case. Because delaware knows it doesn't pass muster, they drop charges.  But because of the dropped charges the law never gets properly challenged (as in actual tangible damages like the example I mentioned) so it stays on the books. 

And it stays a law as so make it a "deterrence" for people to not carry on those places,  although only the good people do that.  And it also allows them to keep claiming that they are making new laws instead of "doing nothing"

Am I on to something?

sprue

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Re: Question Regarding Possession of a firearm in a Safe Recreation Zone
« Reply #12 on: January 06, 2024, 05:30:40 AM »
Thank you Marc, I really appreciate the clarification.