by Dave Workman, Senior Editor
Attorneys for the Second Amendment Foundation and National Rifle Association filed a rebuttal brief to the Washington State Supreme Court, recommending that the court reject the City of Seattle’s request for court review of their latest loss in the city’s on-going attempt to ban firearms on city park property.
The ban would be in violation of Washington State’s long-standing preemption law, which was first adopted in 1983 and reinforced in 1985.
Following a highly-publicized non-fatal shooting incident at Seattle’s Folklife Festival about four years ago, former Mayor Greg Nickels—a founding member of Mayors Against Illegal Guns—was determined to adopt some measure restricting gun rights. Many believe he was using the shooting as an excuse to launch an effort that he had been pursuing since at least early 2006.
In a letter written to Frank Chopp, speaker of the State House of Representatives in May 2006, Nickels acknowledged that, “We cannot accomplish anything without your personal leadership in Olympia. 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.”
Nickels was turned out of office in 2009, but his successor, Mike McGinn, has pursued the ban.
Before the ban was enacted as a parks regulation rather than a city ordinance, which was an attempt to dance around language in the state’s preemption statute, the city was advised by State Attorney General Rob McKenna that the ban, even as a parks rule, would violate the law. SAF, NRA and the Citizens Committee for the Right to Keep and Bear Arms all warned the city that if a ban was enacted, they would sue. One week after Nickels announced the new parks ban, those three groups, plus the Washington Arms Collectors and five individual citizens filed a legal action in King County Superior Court.
Early in 2010, Superior Court Judge Catherine Shaffer ruled in favor of SAF, NRA and other plaintiffs, and issued a permanent injunction against the city. Supported by pro bono legal representation by a national law firm, the city appealed. In October 2011, the State Court of Appeals unanimously ruled against Seattle again. While that should have ended the case, the city then filed a request for review by the State Supreme Court.
There is a behind-the-scenes issue at stake. Washington’s preemption statute was used as a model for similar laws in several other states. Gun prohibitionists would like to successfully challenge that law, opening the door for similar challenges in other states. At the same time, Seattle would be allowed to establish its own gun control laws, rendering state preemption useless.
SAF and NRA are represented by Seattle attorney Steven W. Fogg. In his response to the high court, Fogg stressed that “…the City knew to a certainty that this ban violated the law.”
He also reminded the court that “The possession of a firearm is a clearly protected right under the United States and Washington Constitutions….In addition, persons may openly carry lawful firearms in places where firearm possession is otherwise legal if they do so in a manner that does not manifest an intent to intimidate or warrant alarm.”
The SAF/NRA response notes that Seattle wrongly argues that there would be no criminal penalty if the ban were enacted.
“Under the Rule,” Fogg wrote, “if a City official asks a person possessing a firearm to leave the premises and the person refuses, that person will be charged with criminal trespass.”
Fogg’s 22-page response to the Seattle review request demolishes the city’s arguments point-by-point. In addition, he reminds the Supreme Court that, “If this Court were to read the Preemption Clause as the City urges, it would permit a municipality to regulate firearms to its heart’s content as long as it did so under the guise of a ‘rule’ or ‘policy.’ This cannot be what the legislature intended, as such an interpretation would render the Preemption Clause’s first sentence completely meaningless.”
Get updates on SAF’s court cases at 2ndAmendmentCourtCases.com and SAF.org
