Emergency Preparedness: King County Violating Washington State Gun Rights

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with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.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 http://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.

Seattle Fights Back Against Chicago-Style Gun Control

Nickels Missing; Seattle Finds Smoking Gun Dec 17, ’08 1:14 AM

by Mark S. Knapp, Federal Way

Subsequent to publishing the following article, Nickels issued his edict. He is now out of office and his successor and the City of Seattle are battling at least two legal actions that the City cannot expect to win:

Mayor Nickels wrote to the Speaker of our State House of Representatives, Hon. Frank Chopp, on May 4, 2006. Greg Nickels stated:

“State law preempts any and all local regulations related to firearms. Our hands are tied at the local level and we are unable to adopt any local laws to protect our residents from gun crime.”

-Mayor Greg Nickels, May 4, 2006.

For several months after the Mayor Nickel held public hearings on his plans to ban guns on City property, he seemed to know that the legal action ready to be filed by the Second Amendment Foundation in Bellevue, Washington can seriously hurt the City. Then in March, 2009, the Mayor’s office indicated that the edict will go into effect on a yet to be announced date. See Workman.

During his nonappearance at the public hearings held to air his edict banning carry of weapons on most city premises and parks, the Mayor clearly created an unrebuttable presumption that he has delusions of grandeur that are more characteristic of Cook County political personalities than the traits we see in our Seattle politicians.

Maybe guilty of malfeasance and violation of his oath to uphold the Constitution by reason of insanity will be his plea? Official misconduct to deprive citizens of privileges and immunities is a form of reckless disregard of the Mayor’s official duties and oath of office, according to one retired Coast Guard member. “Gun free zones don’t work,” the indignant citizen proclaimed as he stood there, still a watchman on the stormy sea of liberty. This theme was repeated by several speakers until finally one impassioned lady cried, “The reason we keep repeating ourselves is because you guys just don’t hear us!” The people of Mumbai seem to have heard the message better thsn the Mayor.

I read in the newspaper this week that a guy in Mexico makes a little boat that stays right below the water and leaves no heat signature because the exhaust pipes are under water. They cost a million dollars but drug dealers buy them up faster than the government can eliminate them. A terrorist could never bring a crew to Seattle like that? Those guys only know how to handle weapons of mass destruction like nukes and crude biological stuff. They would never get in an underwater boat and come to a friendly town like Seattle where everybody except Weyerhauser Corporation loves trees. But then again, the boat has a range of 2,000 some miles…. I digress.

According to FBI crime statistics, there were 9,000 hate crimes in 2007 and 41% of those crimes occurred in public buildings such as the Seattle City Hall. Back in 2008, the Mayor announced that he had legal authority to ban weapons on City property. That is when the public hearings occurred. Since then, the number of approved applications for Concealed Pistol Licenses has increased and so have gun sales in King County.

Yvonne Ward, a civil rights lawyer that represents crime victims, was present at the hearing and told the City of Seattle exactly why Mayor Nickels’ gun ban will make victims more vulnerable to men that prey on women. The Mayor’s edict victimizes women twice by making criminals of those that disobey the law.

Ms. Ward, an Asian-American leader who definitely carries, was among many that provided public comment and then asked, “Where is Mayor Nickels?” The Mayor was conspicuously absent. The hearing, held on Bill of Rights Day, was replete with doctors, retired veterans, academics (including a UW professor emeritus) and victims of violent crimes- all opposed to Nickels’ decree.

One of the few that favored the ban claimed to speak for the Jewish Federation insisting that disarming honest people on City property is a “common sense” way to stop hate crimes like the shootings that occurred at the Federation’s Seattle headquarters. I asked the speaker wouldn’t he be safer having armed citizens nearby? He abruptly cut off the discussion with me in the hallway.

A survivor of the same hate crime (committed by a menatlly ill person of Middle Eastern ancestry who became agitated when Israel went into Lebenon a few years ago) said her niece was also a victim. She also stated that she is a board member of Washington Ceasefire. These were some of the few that favored the gun ban. Several speakers made reference to Hitler and Lenin’s outspoken support for gun control, the point being that all dictators share the same sentiments as Washington Ceasefire.

Joe Waldron came from sunny Florida to point out that if you lock your weapon in the car in order to comply with the Mayor’s edict you run the risk of getting your weapon stolen like Gil Kerlikowske- the former Seattle PD Chief’s gun was stolen from his vehicle and is now a potential instrumentality of criminal violence on the streets! Evidently the Obama Administration overlooked little problems like the lost gun and the fact that his son has a drug problem. He is now slated to be the nation’s new drug chief!

Speakers favoring responsible self-defense included self-professed “liberals” and gay people that are opposed to becoming victims. A rape victim stated that she would be terrified to walk in a Seattle park near her home without concealed carry. Many fathers also expressed safety concerns about taking their families to parks without the ability to protect their kids. Judges and prosecutors might also have concerns about their own personal safety traversing City property but none were present to testify. In Seattle, many folks use Metro and cannot lock their weapons in the car to enter property belonging to Mayor Nickels. You may or may not be surprised how many lawyers carry- for good reason.

One of these days I would like to write an article analyzing the statistical probability that ethnic minorities will be victims of violent crime compared to statistics for non-minority Caucasians. Of over 150 people present from many races and backgrounds, there must have been twenty that favored the Nickels Gun Ban.

Most of those that favored the change seemed to be spokespersons from Ceasefire. They used words like illogical to characterize armed self-defense. Hmmmmm….

See Video: Public Hearing.

Is Your Mayor Lobbying Against Your Guns?

Yakima Mayor Edler recently announced that he joined Mayor Bloomberg’s Mayors Against Illegal Guns (MAIG). Yakima is dealing with a string of gang-related shootings that have rocked the City of Yakima. MAIG’s Mission Statement declares:

“We support the Second Amendment and the rights of citizens to own guns.”

The anti-gun mayors’ group does not support the right to bear arms, however. MAIG has stated that “a policy that is appropriate for a small town in one region of the country is not necessarily appropriate for a big city in another region of the country.”

Many of the positions taken by MAIG around the U.S. violate our Washington State Constitution and RCW 9.41.290 which “fully occupies and preempts the entire field of firearms regulation” within Washington State. Thus, our state firearms preemption law prohibits local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law.

Yakima’s City Council recently decided to repeal two illegal firearms restrictions that violate state preemption law.

A nineteen year old man was shot dead during an argument yesterday (September 17, 2009) at the Federal Way Transit Center. There have been previous shootings there, including the death of an innocent bystander.

Federal Way’s neighboring mayor, Pete Lewis of Auburn, and other Washington mayors presumably join Mayors Against Illegal Guns (MAIG) to combat violent crime and make cities like Auburn safer.

According to MAIG, more than 450 mayors from big cities and small towns across the country have joined the coalition. MAIG claims that it just seeks common sense solutions that may vary for different localities but MAIG’s real agenda (possibly unknown to well-intentioned mayors like Mr. Lewis- but unlikely at this point in time) is to restrict folks from exercising many of our gun rights, gradually removing the ability of citizens to stop violent crimes immediately by armed self-defense.

Legislation supported by MAIG includes repealing the Tiahrt Amendment which provides for trace data to be provided to law enforcement and prosecutors but prohibits providing firearms information for lawsuits aimed at closing down gun manufacturers and gun shops. The NRA and The Fraternal Order of Police oppose releasing such data as releasing some of the data could jeopardize officer’s lives.

Mayor Bloomberg would restrict people on the terror watch list from buying or owning guns. Earlier this year, Homeland Security warned that some of our troops returning from combat zones pose a potential terrorist threat.

Do we want our returning servicemen and women placed on a watch list and losing their right to keep and bear arms? Once on the list, many Americans have found that there is no way to get off of it- even where the government admits a mistake has been made.

Mayor Nickels of Seattle, a founding member of MAIG, announced again that he is prepared to proceed with an illegal gun ban on city premises despite the certainty that he will soon be leaving office (he did not make it past the primary due to the unpopular style of his governance in the Emerald City). Despite Washington’s firearms preemption law and an imminent legal challenge that Seattle cannot win, Seattle’s lame-duck mayor is foisting huge legal expenses on Seattle’s taxpayers. Isn’t it less expensive to simply punish violent predators to the maximum extent of the law? But Nickels, like a few of Seattle’s other anti-gun politicians now in Washington, DC, is feathering his own nest in hopes of a salaried position with MAIG or even a position in the Obama Administration.

See Dave Workman.

MAIG is against HR 2296 and S. 941 which would clarify the standards and improve the process for imposing penalties related to intentional violations of federal gun laws. MAIG’s opposition is apparently because the proposals are not hard enough on simple paperwork mistakes that can presently result in the BATF harassing and even closing down legitimate gun dealers!

MAIG’s present goal in Washington State is apparently to remove the so-called “gun show loophole”. The argument (shown to be false by Department of Justice statistics) is that, since people can buy guns at gun shows without a background check, many criminals are purchasing guns at gun shows. The Washington Arms Collectors, the organization that hosts many gun shows in Washington, requires that only WAC members (all of whom have passed background checks) can purchase weapons at gun shows. Dealers still have to perform NICS checks at gun shows just like they do in their regular place of business.

Under present Washington law, private parties can presently buy or sell weapons away from gun shows without any background check. Will MAIG want legislation closing the private party loophole next?

Efforts to prevent the existence of any loopholes work better in totalitarian societies. Laws already enacted need to be enforced more strictly before we give up our freedom. Let’s make society safer by making things harder for the predators, not for law abiding gun owners.

You can find out whether your mayor is a member of MAIG with the handy NRA list from the NRA-ILA. The following Washington mayors (as of August 20th, 2009) are involved in this anti-civil rights organization:

Mayor Peter B. Lewis
Auburn, WA

Mayor Cary Bozeman
Bremerton, WA

Mayor Greg Nickels
Seattle, WA

Mayor Bill Baarsma
Tacoma, WA

Mayor Royce Pollard
Vancouver, WA

Mayor David Edler
Yakima, WA

Can the UN Repeal Your Washington State Gun Rights?

Medellín v Texas is a landmark that stands for freedom in the United States.

See United States

In recent years, some members of the U.S. Supreme Court have made attempts to meld U.S. law with foreign law. International norms are apparently a new prism through which U.S. Constitutional law should be interpreted, according to some justices.

For example, in criticizing the Court’s own previous decision upholding state laws against consensual sodomy, the Court stated:

Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Lawrence v Texas reversing Bowers v Hardwick

In the Lawrence v Texas decision, the majority opinion focused on global economics and world order as a justification for reversing an opinion that the U.S. Supreme Court delivered seventeen years before.

Medellin is a death penalty case but the Supreme Court did something more important than just deal with the issue of whether the State of Texas must give a psychopath a new trial. In Medellin, the strict-constructionist members of the Court put a death knell to the concept that international tribunals, treaties and legal usages are binding on states like Texas (and the State of Washington). For example, by holding as it did in Medellin- that international treaties and presidential orders do not trump state laws- the Court may have protected Americans from the UN Treaty on Small Arms that the UN is preparing to promote very heavily in the U.S. (the UN has been working on this agenda throughout the world- even as the UN remains a haven for genocidal regimes of every stripe). The “Progressives” who are up in arms against the Roberts Court are livid, according to the Wall Street Journal:

Though the case became a global cause célèbre, its sordid origins trace to 1993, when José Medellín, a Mexican national, murdered two Houston teenagers. He was sentenced to death by a Texas jury, but his lawyers argued on appeal that he hadn’t had access to Mexico’s consulate before he confessed to his crimes.

This was a violation of the 1963 Vienna Convention, which holds that diplomats are supposed to be notified when their nationals are arrested. In response, the U.S. government took steps to ensure states better comply in the future, both to fulfill its treaty obligations and serve the reciprocal interests of U.S. citizens detained abroad.

But Mexican authorities made the case a referendum on capital punishment and international legal norms, ultimately suing the U.S. in the International Court of Justice at The Hague. The ICJ ruled in Mexico’s favor, ordering states to give Medellín and some 51 other nationals new hearings. The question before the Supreme Court was whether such international dictates must be enforced by sovereign state courts. An affirmative answer might have gone a long way toward validating the expansive claims of liberal legal theorists that U.S. courts take instruction from the U.N., among other moral oases.

Chief Justice John Roberts, writing for the 6-3 majority, ruled that the ICJ finding was not binding because the Vienna Convention is an understanding between governments. It is a diplomatic compact that was never intended to automatically create new individual rights enforceable domestically by international bodies. Texas’s violation was of diplomatic protocols, and calls for a diplomatic remedy.

Treaty provisions must be in accord with the plain meaning of the Constitution as it is written, not as some European-style socialists would have it to be. This distinction establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers.

Justice Roberts pointed out that courts must leave to the political branches the primary role in deciding when and how international agreements will be enforced.

Medellín v. Texas also swatted away a claim of Presidential power. According to the WSJ, the Bush Administration attempted to calm the diplomatic world by directing states to comply with the ICJ ruling in a 2005 executive order.

The Court ruled that the President’s power is limited by the Constitution. Authority to make treaty commitments does not extend to unilaterally asserting new state responsibilities or legal duties. The executive makes new laws subject to the legislature. The same crowd that is so suspicious of the Bush Administration’s claims of executive power, can’t wait to turn the executive powers over to international politicians who have already banned guns in most of Europe, Australia and Canada, to name a few!

Another safeguard provided by the Medellin case, is the safeguard against potential hate speech laws that chill your First Amendment freedoms. Hate speech laws are being used all over the Western World to silence criticism of Islam. If the multiculturalist crowd has its way, it could become a crime to make statements in the United States of America that violate hate crime laws like the laws enacted in Australia and Canada and many Western European nations. Hopefully we will continue to have Supreme Court Justices that recognize this kind of totalitarianism disguised as multiculturalism as a threat to liberty and free speech.

The Medellín majority has delivered a victory for the U.S. Constitution. For many years, the elite lawyers and politicians have been claiming that the Constitution is always changing based on the needs of each generation. This is not rule of law but an argument for tyranny which would interlineate international norms in place of bedrock Constitutional norms.

There are still many law professors and judges that think treaties supersede the U.S. Constitution. Hopefully the Medellin case has put such legal doctrines to rest! The decision went against the Bush Adminstration this time but if Medellin is reversed the next decision could impose UN-made laws that shut down our ability to conduct full debate on many important issues. Debate is often a strength that promotes new ways of dealing with threats and opportunities.

Ironically, we have President Bush to thank for men like Chief Justice Roberts and the other justices on the Court that read documents in plain English and just said NO to the Bush Administration’s overly aggressive claim of presidential power.

See also Perverting the Bill of Rights.