Preemption: Washington Cities Violate State Gun Law

Attorneys for various municipalities around Washington State have issued legal opinions that RCW 9.41.290 “only applies to the regulation of firearms themselves” and “excludes regulations that only secondarily affect firearms… that do not embody a punitive regulation”. The Washington State Attorney General’s Office issued a legal opinion last week that thoroughly rebuts such opinions based on Cherry v Metro and another case that dealt with certain narrow issues applied to a venue for a gun show leased from the City of Sequim, washington.

We previously pointed out in a letter dated May 22, 2008, that the so-called “legal authority” on which many jurisdictions are relying is contrary to any reasonable analysis of the law. Incidentally, the City of Federal Way is now in full compliance with state law as of January 8, 2009.

The legislature has put cities and counties in Washington on notice that local governments’ hands are tied when it comes to restricting our gun rights- even inside the building where the jails and police stations are located. If the City can’t disarm you inside City Hall, how can it force you to be defenseless in the City’s Parks? Keep in mind- cities can only enact those laws and ordinances relating to firearms that are specifically authorized by state law.”

There was recently a mass shooting in another state where the attacker shot and killed a uniformed police officer as a prelude to killing several other people during a City Hall meeting. Our state’s legislature has decided that the solution to such scenarios is not to disarm the people but to make sure that many honest people will be armed when violence occurs.

The key case is Cherry v Municipality of Metropolitan Seattle, a case in which a Metro employee was fired for bringing a gun to work. The folks that seek to repeal or subvert the state preemption law assert that Cherry is authority for disarming you when you cross onto City property. Despite such bold assertions, the Cherry case just stands for the premise that if you work as a municipal employee, you may be prohibited from carrying a weapon while on the job.

There are presently cities all over Washington State receiving legal advice based on legal reasoning that has already been repudiated by every jurisdiction that has honestly looked at the state preemption law and the cases. The reason they get bad advice advice is because many politicians in our state of Washington, like Mayor Greg Nickels in Seattle, don’t like the state preemption law and have announced publicly that they want it repealed.

Lawyers often provide advice that will provide justification for the client’s agenda (e.g., to restrict your gun rights). Prior to the AG issuing the opinion putting anti-gun politicians in their place, cities were being advised by counsel to rely on the case of Pacific Northwest Shooting Park Association v Sequim in order to wage their quiet jihad on your ability to protect your family and loved ones and remain safe at public meetings.

In Pacific Northwest Shooting Park Association v City of Sequim, 158 Wash.2d 342 (2006), the court held that the City of Sequim was acting in a private capacity when leasing out a city convention center to an association conducting a gun show within the premises belonging to Sequim. The court decided that the laws that apply to public parks, public meetings and other municipally owned premises and property are not the same as restrictions imposed on private parties per a city’s contractual relations with private parties.

AGO Opinion 2008-8 essentially states that the City of Federal Way’s conclusion that the city has the right “to decide as an owner how its property is used” would render the preemption statute meaningless. In the event civil litigation becomes necessary, attorney’s fees for the defendant can be very high especially in the face of the unequivocal legal authority outlined herein.

As stated already, there are several jurisdictions within the State of Washington that are not presently complying with the preemption law and firearms owners are becoming very concerned that such callous indifference to state law may endanger the lives of Washington citizens in direct contravention of legislative intent!

The best defense for the citizens of Washington state, all of whom are vulnerable to random shootings and street violence is to limit the number of “gun free” zones that are available as kill zones to criminals, terrorists or other deranged individuals seeking publicity by mass shootings. Almost all such shootings have occurred in areas where honest citizens have been rendered defenseless by laws or policies that violate RCW 9.41.290.

See also The Living Constitution?

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