How many years have we listened to the talking class bemoan the fact that most of us know more about what happens in the Middle East than we know about our own local governments? Suddenly the internet and cable TV have created an explosion of engaged citizens and the political class is worried! In between Tea Parties and disrupting Town Meetings, citizen activists all over the State of Washington are investigating county and local governments that have enacted emergency power provisions that violate RCW 9.41.290, the Washington State preemption statute.

For example, the City of Yakima just amended certain local laws that were in violation of the state preemption law. Then we discovered to our dismay that the Council had retained the following:

Chapter 6.06

EMERGENCY POWERS OF MAYOR, CITY COUNCIL AND CITY MANAGER

(7) An order prohibiting the possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person’s place of residence or business;

Such statutory provisions are in direct violation of the state preemption statute:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

RCW 9.41.290

King County Code presently includes the following:

B. Upon the proclamation of an emergency by the executive, and during the existence of such emergency, the executive may make and proclaim any or all of the following orders:

9. An order prohibiting the carrying or possession of firearms or any instrument which is capable of producing bodily harm and which is carried or possessed with intent to use the same to cause such harm; provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties;

King County Code 12.52.030 (9)

Note that the King County emergency gun ban even goes beyond banning guns outside homes and businesses. Apparently the King County Council claims the power to ban guns in your home- just like the authorities in New Orleans that went from house to house, disarming terrified residents that had already been abandoned by police and other authorities during a time when the citizens of New Orleans desperately needed protection from looters and roving gangs of thugs.

HB 1832 has been stuck in the House Judiciary Committee for more than a few years. The proposed legislation would prohibit government gun grabs during emergencies but has little chance of being reported out of committee unless irate Washington State voters start raising a hue and cry!

Contact your local law enforcement and city and county lawmakers if such a law has been enacted where you live and contact us to let us know what responses, if any, that you receive. We have been involved professionally with clients and citizen activists in successfully advocating changes in both the Federal Way and Yakima codes by simply informing honest public servants that some local laws are illegal. Federal Way is now one hundred percent in compliance with state law.

On September 1, 2009, the City of Yakima discussed three statutes that were in violation of RCW 9.41.290, the Washington State preemption statute. Thanks to Dave Poling’s hard work and testimony, the Council decided to Amend its city ordinances in order to repeal certain restrictions including the “power” to ban guns during emergencies.

See VIDEO starting at minute 5:35.

Emergency bans on weapons raise liability issues. When local governments claim powers that that can lawfully only be invoked by the governor and/or the state legislature, federal and state civil remedies are available to citizens that are harassed (such as by gun confiscation). See Video (fast forward to last five or ten minute segment).

Thus, the real issue is liability if an emergency gun ban is invoked, a municipality confiscates guns lawfully carried by citizens and the victims of the confiscation subsequently take legal action. Even the Governor may incur liability if she confiscates weapons during an emergency where there are federal emergency funds coming into the state. City, county and state officials should consider the legal fees and costs incurred by New Orleans when guns were confiscated in the aftermath of Katrina. The issues raised at the Yakima City Council meeting relate to Section 24 of the Washington State Constitution, RCW 9.41.290 State Preemption and RCW 43.06.010(12) in which the Governor has sole power and duty to proclaim an emergency in Washington State.

Leaving emergency powers laws on the books until challenged can be a costly decision. The Yakima City Council already recognized that state law preempts local laws in all matters pertaining to firearms when it removed two other illegal statutes from the books at the same meeting during which legal counsel made the comments referenced above.

You can ascertain much about the status of firearms laws in various localities and other information at www.OpenCarry.com.

The Governor has emergency powers that enable her to ban guns outside the home during a state of emergency:

RCW 43.06.220

State of emergency — Powers of governor pursuant to proclamation.

(1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting:
(e) The possession of firearms or any other deadly weapon by a person (other than a law enforcement officer) in a place other than that person’s place of residence or business;

While the above referenced state law is not in violation of the state preemption statute, residents of Washington state should be considering the way in which residents of New Orleans experienced a massive gun confiscation during the emergency following Hurricane Katrina. See NRA vs New Orleans.

The NRA and many state legislators all over the United States have worked to enact laws preventing just such a confiscation in other states. Nevertheless, in Washington state, we are at the mercy of the Governor because, although there is proposed legislation modeled after the NRA endorsed legislation, it is unlikely it will ever get reported out of committee.

As indicated above, states, counties and local governments may be sued under the Stafford Act if gun confiscation laws are enforced during an emergency for which a state or local government is receiving federal funds:

Private rights of action

(1) In general

Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.

(2) Remedies

In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.

(3) Attorney fees

In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 USC Sec. 5207 (01/08/2008)

See video: Gun Confiscation in New Orleans.