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1. Archery OrdinanceCity of Kalispell City Attorney Office of City Attorney Charles A. Harball 312 First Avenue Bast P.O. Box 1997 Kalispell, MT 59903-1997 MEMORANDUM To: Mayor Kennedy and City Council From: Charlie Harball, City Attorne k Date: August 7, 2002 Re: Request by Citizen for Archery Ordinance Tel 406.758.7708 Pax 406.758.7771 charba11@61iepA. corn A private citizen of Kalispell has requested that we consider enacting an ordinance prohibiting the use of a bow and arrow within the city limits of Kalispell. This concern initially came to the attention of the police department when police personnel were called to investigate a neighbor of this citizen who was in the process of constructing a backstop for archery practice in his private back yard. The police determined at that time that this neighbor was conducting himself in a safe manner. At their request I conducted a search of our applicable laws. Under our state law, I found the following: 45-8-343. Firing firearms. (I) Except as provided in subsections (2) and (3), every person who willfully shoots or fires off a gun, pistol, or any other firearm within the limits of any town or city or of any private enclosure which contains a dwelling house is punishable by a fine not exceeding $25 orsuch greaterfine or a term ofimprisonment, or both, as the town or city may impose. (2) Firearms may be discharged at an indoor or outdoor rifle, pistol, or shotgun shootingrange located within the limits ofa town or city orin a private dwellingif the shootingrange is approved by the local governing body. (3)Subsection (1) does not applyif the discharge of firearm is justifiable under Title 45, chapter 3, part 1. 45-8-351. Restriction on local government regulation offirearms. (1) Except as provided in subsection (2), no county, city, town, consolidated local government, or other local government unit may prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including rifle, shotgun, handgun, or concealed handgun. (2) (a) For public safety purposes, a city or town may regulate the discharge of rifles, shotguns, and handguns. A county, city, town, consolidatedlocalgovernment, orotherlocalgovernmentunithaspower Memorandum re Archery Ordinance August 7, 2002 Page - 2 to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, orschool, and thepossession of firearms byconvictedfelons, adjudicated mental incompetents, illegal aliens, and minors. (b) Nothing contained herein shall allow any government to prohibit the legitimate display of firearms at shows or other public occasions by collectors and others, nor shall anything contained herein prohibit the legitimate transportation of firearms through any jurisdiction, whether in airports or otherwise. 45-5-208. Negligent endangerment -- penalty. (1) A person who negligently engages in conduct that crea tes a substantial risk of death or serious bodily injury to another commits the offense of negligent endangerment. (2)A person convicted of the offense ofnegligent endangerment shall be fined an amount not to exceed $1, 000 or imprisoned in the countyjail for a term not to exceed 1 year, or both. Under Kalispell City Ordinance I found the following: 19-10.'DISTURBANCE OF THE PEACE GENERALLY' A. Every person who within the limits of the City wilfully, maliciously, intentionally or unnecessarily disturbs the peace of any neighborhood or person by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight or fighting, or who fires any gun or pistol or uses any vulgar, profane, indecent or obscene language within the presence or hearing of any women or children, or who commits an assault or battery or by any othermeans whatever disturbs the peace ofanyneighborhood orperson within the limits of this Cityshall beguiltyofthe offense of disturbance ofthe peace. Anyperson convicted of the violation ofany ofthe provisions of this Section shall be punished as provided in Section 1-9 of this Code. Therefore based upon what we currently have on the books, the discharge of an arrow from a bow is not specifically prohibited or even addressed, except as such practice may be conducted in such a way as to negligently endanger others. For this reason I advised the officers that the neighbor could legally practice archery in his back yard so long as that practice did not apparently endanger anyone. Several of our police personnel are specifically trained and licensed in the safe use of the bow and arrow. These officers examined the practice area of the neighbor and discussed safe bow and arrow practices with that neighbor and determined that there was no probable cause r City of Kalispell M Office of City Attorney Memorandum re Archery Ordinance August 7, 2002 Page • 3 to believe that the neighbor was in violation of the law prohibiting negligent endangerment. I then advised the neighbor who was expressing concern about the safety of archery practice within the city that council could be approached with a proposal to prohibit the practice as a per se safety violation. Several cities in the state do have such an ordinance on the their books. Whitefish has the following: 9.96.030 Discharge unlawful Exception. It is unlawful for any person to discharge any firearms, or use an airgun, catapult, slingshot, or bow and arrow, within the limits of the city, except that this section shall not be held to apply to peace officers in the discharge of their duties, or to persons lawfully protecting their person or property or the person or property of others. (Ord. 209 § 1, 1927). The City of Missoula has the following: 9.62.050 Bow and arrow restrictions. A. No person shall shoot, fire, or otherwise discharge any arrow or projectile through the use of bow or other device within the citylimits, except when done in the lawful defense of the person, property oriamily; or when done either at an organized and established public or private archery shooting range or gallery, or when done at an archery shooting target area on private grounds or premises under circumstances and in such a manner where any shooting, f7ring or other discharge of an arrow or projectile can be and is being performed in a manner so as not to endangerperson, property, animal orfowl, and alsoperformed in such a manner so as to prevent any arrow or projectile from traversing any grounds or air space outside the established boundaries or limits of any archeryshootingrangegalleryor archeryshooting target area on private grounds or premises. B. No person who is less than fifteen years of age shall shoot, fire, or otherwise discharge any arrow or projectile through the use of bow or other device except when done in the lawful defense of the person, property or family; or when done while being supervised by an adult as that term is defined in Montana state la w. (Ord. 2431 §§I, 1985) . The City of Bozeman has an ordinance with identical language as Missoula. `1► City of Kalispell r Office of City Attorney Memorandum re Archery Ordinance August 7, 2002 Page - 4 Note that although the City of Whitefish more strictly prohibits the practice of archery within the city, the cities of Missoula and Bozeman regulate the practice by requiring that "when done at an archery shooting target area on private grounds or premises under circumstances and in such a manner where any shooting, firing or other discharge of an arrow or projectile can be and is being performed in a manner so as not to endanger person, property, animal or fowl, and also performed in such a manner so as to prevent any arrow or projectile from traversing any grounds or air space outside the established boundaries or limits of any archery shooting range gallery or archery shooting target area on private grounds or premises." Frankly, the enforcement of an ordinance such as this is little different from the enforcement of the negligent endangerment statute. I have no particular recommendation to the council as to whether or not it is advisable to enact an ordinance either strictly prohibiting the practice of archery within the city or to regulate such practice. The Whitefish ordinance is certainly a bright line that much simplifies enforcement and takes our officers out of loop of determining the relative safety of the situation. On the other hand, the council may find there are many archery advocates within the city who firmly believe that it is quite possible to practice their sport safely on a small backyard lot and would point out the lack of any statistics to show, based on injuries or deaths, that the sport presents the level of danger that should lead the council to determine the sport to be per Be too dangerous to be practiced within the city. 4 City of Kalispell * Office of City Attorney