CITY OF LAS VEGAS v. MOBERG

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Docket Number

No. 639.

Attorney(S)

Leon Karelitz, Las Vegas, for defendant-appellant. Roberto L. Armijo, Las Vegas, for plaintiff appellee.

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Smart Summary

Factual and Procedural Background

The defendant, Leland James Moberg, was convicted by the municipal court of the City of Las Vegas for violating city ordinance No. 3-3, which prohibits carrying deadly weapons, concealed or otherwise, within the city limits. The complaint charged him specifically with carrying a concealed and deadly weapon. After conviction, Moberg appealed to the district court where he received a trial de novo. The undisputed evidence showed that Moberg carried a pistol in plain view while reporting a theft at the city police booking room. Both parties treated the charge as one of carrying a deadly weapon openly rather than concealed. The district court found him guilty of violating the ordinance by carrying the deadly weapon openly and imposed sentence. Moberg appealed challenging the constitutionality of the ordinance as applied to openly carrying arms.

Legal Issues Presented

Whether the city ordinance prohibiting carrying deadly weapons, including openly carried arms, violates Article II, Section 6 of the New Mexico Constitution, which guarantees the right to bear arms except for carrying concealed weapons.
Whether the ordinance's prohibition on carrying deadly weapons openly is void as it infringes on the constitutional right to bear arms.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Berger v. City and County of Denver, 142 Colo. 72, 350 P.2d 192 (1960)	A municipal ordinance that denies constitutional rights is void to the extent it denies those rights.	Supported the principle that an ordinance cannot infringe constitutional guarantees such as the right to bear arms.
City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App. 1958)	Same principle as Berger regarding invalidity of ordinances denying constitutional rights.	Reinforced the invalidity of ordinances infringing constitutional rights.
State v. Hart, 66 Idaho 217, 157 P.2d 72 (1945)	Ordinances prohibiting carrying concealed weapons are a proper exercise of police power.	Distinguished between regulating concealed weapons and prohibiting open carry; upheld regulation of concealed carry only.
Davis v. State, 146 So.2d 892 (Fla. 1962)	Upheld ordinances prohibiting carrying concealed weapons as valid police regulation.	Supported the distinction that concealed carry can be regulated without infringing the right to bear arms.
State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903)	An ordinance cannot wholly prohibit the constitutional right to bear arms.	Supported the court’s conclusion that the ordinance’s prohibition on open carry was void.
In re Brickey, 8 Idaho 597, 70 P. 609 (1902)	Similar principle regarding the constitutional right to bear arms and limits on municipal ordinances.	Referenced as authority for invalidating ordinances that infringe the right to bear arms.
State v. Woodward, 58 Idaho 385, 74 P.2d 92 (1937)	Reinforced limits on prohibiting the right to bear arms.	Used to support the court’s conclusion about the ordinance’s invalidity.
State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)	Established precedent on constitutional protection of the right to bear arms.	Supported the holding that the ordinance’s prohibition on openly carrying arms was unconstitutional.

Court's Reasoning and Analysis

The court analyzed the ordinance in light of Article II, Section 6 of the New Mexico Constitution, which guarantees the right to bear arms for security and defense but explicitly excludes the carrying of concealed weapons. The court recognized that prohibiting concealed weapons is a valid exercise of police power, consistent with precedent. However, the ordinance at issue prohibited carrying deadly weapons openly as well, effectively denying the constitutional right to bear arms. The court cited multiple precedents establishing that municipal ordinances cannot infringe constitutional rights and that while regulation of concealed weapons is permissible, a complete prohibition on openly carrying arms is not. Accordingly, the court concluded that the ordinance was void to the extent it prohibited carrying deadly weapons openly.

Holding and Implications

The court held that the ordinance, as applied to the open carrying of deadly weapons, is unconstitutional and void.

The case against the defendant was ordered dismissed and the defendant discharged. This decision directly affects the parties by invalidating the conviction and sentence. The opinion did not establish new precedent beyond reaffirming constitutional protections against municipal ordinances that infringe the right to bear arms as guaranteed by the state constitution.

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CITY OF LAS VEGAS, Plaintiff-Appellee, v. Leland James MOBERG, Defendant-Appellant.

OPINION

SPIESS, Chief Judge.

The defendant, Moberg, was convicted by the municipal court of the City of Las Vegas of violating the city ordinance No. 3-3, which reads as follows:

"DEADLY WEAPONS. It shall be unlawful for any person to carry deadly weapons, concealed or otherwise, on or about their persons, within the corporate limits of the City of East Las Vegas. Deadly weapons shall consist of all kinds of guns, pistols, knives with blades longer than two and half inches, slingshots, sandbags, metallic knuckles, concealed rocks, and all other weapons, by whatever name known, with which dangerous wounds can be inflicted."

The complaint charged the defendant with the violation of the ordinance by number and specifically by "carrying a concealed and deadly weapon." Following conviction by the municipal court, defendant appealed to the district court and was there accorded a trial "de novo" (§ 38-1-13, N.M.S.A. 1953, (Rpl. Vol. 6).

The evidence presented at the trial in the district court established, without dispute, that defendant went to the booking room of the city police department of the city of Las Vegas to report the theft of certain items from his automobile. At the time, defendant was carrying a pistol in a holster. The pistol was in plain view at all times. It appears that both parties at the trial in the district court treated the complaint as charging simply the carrying of a deadly weapon. No contention is made that the evidence supported the carrying of a concealed weapon. Defendant was found guilty by the district court of violating the particular ordinance through carrying a deadly weapon, which, in this case, as stated, was in plain view. Sentence was imposed.

Defendant has appealed and challenges the constitutionality of the ordinance as it is applied to carrying arms openly and in plain view. He asserts that in this respect the ordinance is repugnant to Article II, Section 6 of the Constitution of the State of New Mexico. This section provides:

"The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons."

It is a generally accepted principle that a municipal ordinance which denies rights protected by constitutional guaranty is void to the extent, at least, that it purports to deny such rights. Berger v. City and County of Denver, 142 Colo. 72, 350 P.2d 192 (1960); City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App. 1958); State v. Hart, 66 Idaho 217, 157 P.2d 72 (1945). 5 E. McQuillin, Municipal Corporations, § 19.03, (1969 Revised Edition).

Ordinances prohibiting the carrying of concealed weapons have generally been held to be a proper exercise of police power. State v. Hart, supra; Davis v. State, 146 So.2d 892 (Fla. 1962).

Such ordinances do not deprive citizens of the right to bear arms; their effect is only to regulate the right. As applied to arms, other than those concealed, the ordinance under consideration purports to completely prohibit the "right to bear arms."

It is our opinion that an ordinance may not deny the people the constitutionally guaranteed right to bear arms, and to that extent the ordinance under consideration is void. State v. Rosenthal, 75 Vt. 295, 55 A. 610 (1903); and see In re Brickey, 8 Idaho 597, 70 P. 609 (1902); State v. Woodward, 58 Idaho 385, 74 P.2d 92 (1937); State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921).

The case against defendant should be dismissed and defendant discharged.

It is so ordered.

WOOD and SUTIN, JJ., concur.