by William S. Statler, last revised 2008-06-15 (see changelog at bottom)
ARCHIVED:
This article is years out-of-date, and will not be updated.
On June 6th, 2008, Seattle mayor Greg Nickels ordered all city departments to take steps to implement a gun-free policy at all city facilities.
Washington state law appears to pre-empt any local gun-control ordinances or regulations. However, Nickels states that a recent Washington Supreme Court decision allows local governments to regulate firearms on government-owned property just as a private property owner would be able to. A violator who refused to comply would be ordered to leave or face arrest for trespassing.
The author of this article is a firm proponent of the right to bear arms, and does not approve of twisting the law in this manner. The purpose of this article, however, is not to preach about what ought to be, but to collect information about what is — information about the mayor's Executive Order, how it is being implemented, and the legal situation surrounding it.
Link to a PDF of Executive Order 07-08. This PDF is a scanned image of the document, so I've transcribed the text of it below:
Office of the Mayor
City of Seattle
Gregory J. Nickels, MayorExecutive Order: 07-08
Gun Safety at City FacilitiesThe Executive Order directs City departments to conduct an inventory of all rules, policies, and leases for all City of Seattle properties and amend such rules, policies and leases in an effort to develop a "gun-free" policy for City of Seattle properties;
WHEREAS, the City of Seattle has a population of 586,200 with millions of tourists visiting the city annually, a vibrant nightlife, and an expansive cultural and arts scene; and
WHEREAS, the City of Seattle government has vast property holdings throughout the city, including parks, libraries, government buildings, and community and recreational centers; and
WHEREAS, the City of Seattle has policies, contractual agreements, and rules of conduct governing behavior on City property; and
WHEREAS, Seattle's local laws and ordinances relating to firearms are specifically authorized by state law and are consistent with state law; and
WHEREAS, the Washington State Supreme Court has held that a municipal property owner, like a private property owner, may impose conditions related to firearms for the use of its property in order to protect its property interests; and
WHEREAS, the recent shooting involving a permitted handgun highlights the importance of having gun-free policies on City of Seattle property; and
WHEREAS, it is the policy of the City of Seattle, acting in its proprietary capacity, to adopt and enforce policies, rules, and contractual agreements that, consistent with state law, prohibit the possession of dangerous weapons, including firearms, on City property;
NOW, THEREFORE, I, GREGORY J. NICKELS, Seattle Mayor, declare that it is the policy of the City of Seattle, acting in its proprietary capacity, to adopt and enforce policies, rules, and contractual agreements that prohibit the possession of dangerous weapons, including firearms, and with the exception of guns issued to law enforcement personnel, on City property;
FURTHERMORE, I direct all City departments to conduct an inventory of all present rules, policies, and contractual agreements, such as leases, within their authority to determine the extent to which they, acting in the City's capacity as owner of the property, prohibit the possession of dangerous firearms on City property; and
FURTHERMORE, I direct all City departments to report back to the Mayor's Office within 30 days with a plan for implementing the City's policy to, acting in its proprietary capacity, adopt and enforce policies, rules, and contractual agreements that prohibit the possession of dangerous weapons, including firearms, on city property.
FURTHERMORE, any new or amended departmental rules will be developed in accordance with proper administrative procedures.
For inquiries regarding this Executive Order, please contact Regina LaBelle at 206-684-4000.
Dated this 6th day of June, 2008
[signed]
Gregory J. Nickels
Mayor, City of Seattle
Link to June 9th, 2008 press release: "Mayor Nickels takes aim at firearms on city property".
Some excerpts from the press release:
...When it goes into effect, the order will place gun prohibition notices at city facilities. Organizations that put on events at Seattle Center will establish their own ways to enforce the new rule. Seattle Police will develop protocols for people with concealed weapons permits. ...
While the state preempts all criminal laws related to firearms, a recent Washington Supreme Court case recognized that cities could adopt rules that regulate guns on city property: Northwest Shooting Park Association [sic] v. City of Sequim, 158 Wn. 2nd 342 (2006) ...
The correct title of the court case is Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn. 2d. 342, Oct. 2006. Here is a link to the complete text of the Washington Supreme Court decision.
This case relates to an April 2002 gun show and sale held by Pacific Northwest Shooting Park Association (PNSPA) at a convention center owned by the City of Sequim. The city imposed a number of conditions on the permit to use the facility, and among these were three conditions that originated in the police department:
The Supreme Court case dealt with two issues: (1) Did these conditions constitute "tortious interference with contractual relationships or business expectancies" between the gun show hosts, the vendors, and the attendees? And (2) did these conditions violate RCW 9.41.290 or 9.41.300 (which limit the power of local governments to control firearms)? Only the second issue is pertinent to the current situation in Seattle.
Excerpted below is the portion of the decision relating to the violation of RCW 9.41.290 and 9.41.300:
¶22 PNSPA contends that the city's permit conditions were "improper" because, under RCW 9.41.290, the State has fully occupied the field of firearms regulation and any municipal action that regulates sales of firearms necessarily violates the preemption clause. PNSPA further argues that the city's conditions constituted an unlawful restriction under RCW 9.41.300.
¶23 The city responds that the plain language of the preemption clause limits its reach to enactment of laws and ordinances. It argues that the text of the clause should be read in the context in which it was enacted, reasoning that the purpose was to eliminate inconsistencies in criminal firearms regulations. The city further contends that the reference to laws and ordinances is limited to laws of application to the general public. Regarding RCW 9.41.300, the city merely observes that it did not place any restrictions on possession of firearms, but it does not indicate whether a restriction on sales would violate the statute.
¶24 In interpreting a statute, our primary goal is to determine and give effect to the legislature's intent and purpose in creating the statute. Am. Cont'l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004). We generally begin our analysis with the text of the statute. Id. If the statute is clear and unambiguous on its face, we determine its meaning only from the language of the statute and do not resort to statutory construction principles. Id. A statute is ambiguous only if it can be reasonably interpreted in more than one way, not merely because other possible interpretations exist. Id.
¶25 RCW 9.41.290 states:
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.
(Emphasis added.)
¶26 RCW 9.41.300 (2)(b)(ii) states:
(2) Cities, towns, counties, and other municipalities may enact laws and ordinances:
. . . .
(b) Restricting the possession of firearms in any stadium or convention center, operated by a city, town, county, or other municipality, except that such restrictions shall not apply to:
. . . .
(ii) Any showing, demonstration, or lecture involving the exhibition of firearms.
(Emphasis added.)
¶27 The text of RCW 9.41.290 states that the state of Washington has fully occupied and preempted the field of firearms regulation. That preemption covers regulations related to possession, purchase, sale, acquisition, and transfer of firearms, all of which are potentially at issue at a gun show. However, RCW 9.41.290 and .300 together explicitly allow cities, towns, counties, and municipalities to enact laws and ordinances restricting firearm possession in stadiums and convention centers they operate. Logic dictates that one must possess a firearm in order to "show" and "sell" a firearm. It follows that if the city had authority to regulate possession of firearms in its convention center under RCW 9.41.300, it also had authority to regulate sales of firearms under RCW 9.41.300. The authority to regulate sales of firearms flowed from its authority to regulate possession of firearms under RCW 9.41.300. [Footnote 4]
Footnote 4: Contrary to the dissent's claim, we do not hold that RCW 9.41.300 authorizes municipalities to "regulate gun shows." Dissent at 358, 361. We merely draw a logical inference based on RCW 9.41.300's explicit language authorizing municipalities to regulate possession of firearms on city property. The city's authority does not depend on the type of activity PNSPA intended to pursue on the city's property. If PNSPA planned to have a book sale, it likely would not have been affected by the city's authority to restrict possession of firearms on its property. It just so happens that PNSPA sought to hold an event whose sole purpose was firearm buying and selling, and the city had express authority to restrict firearm possession on its property.
¶28 Further, PNSPA's gun show does not qualify as an exception under RCW 9.41.300(2)(b)(ii). It was not a "showing, demonstration, or lecture involving the exhibition of firearms." RCW 9.41.300(2)(b)(ii) (emphasis added). PNSPA's complaint clearly states that gun collectors, dealers, and buyers were invited to "sell, trade and buy" the firearms. [Footnote 5] CP at 80. An "exhibition" is defined as "a display or show where the display itself is the chief object and from which the exhibitor derives or expects to derive a profit." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 796 (2002) (emphasis added). Because the city had authority to regulate possession, and by logical inference sales, of firearms and the gun show did not qualify as an exhibition, the city did not violate RCW 9.41.300 by imposing permit conditions on the use of its convention center.
Footnote 5: The dissent states that RCW 9.41.300 "explicitly and specifically prohibits municipalities from regulating gun shows on municipal property," but in order to reach this conclusion it must completely ignore the last three words of RCW 9.41.300(2)(b)(ii). Dissent at 361. RCW 9.41.300(2)(b)(ii) prohibits cities only from restricting showings, demonstrations, or lectures involving "exhibition of firearms." (Emphasis added.) The dissent fails to explain how a sale qualifies as an exhibition.
¶29 However, even if we were to conclude that the city could not regulate firearm sales under RCW 9.41.300 and the gun show qualified as an exhibition, we would still not conclude that RCW 9.41.290 preempted the city's permit conditions.
¶30 This court has already examined the text of the preemption clause in RCW 9.41.290 and considered its scope in a case involving restrictions imposed on firearm possession in the workplace by a municipal employer. Cherry v. Mun. of Metro. Seattle, 116 Wn.2d 794, 802, 808 P.2d 746 (1991). We determined that the purpose of the statute was unclear, at least with respect to the internal policies of municipal employers, and conducted an examination of legislative intent. Id. at 800. We concluded that the central purpose of RCW 9.41.290 was to eliminate conflicting municipal criminal codes and to "advance uniformity in criminal firearms regulation." Id. at 801 (emphasis added). We also found the penal nature of the Firearms Act, chapter 9.41 RCW, to be particularly significant, reasoning that the clause was not intended to interfere with a public employer's ability to establish workplace policies. [Footnote 6] Id. at 800-01. We construed the clause to apply only to laws or regulations of general application. Id. We reasoned that it could not be construed to prohibit a municipality from doing something that a private employer was not prohibited from doing because such a conclusion would result in an overly strained interpretation. Id. at 802. Therefore, Cherry supports the general proposition that when a municipality acts in a capacity that is comparable to that of a private party, the preemption clause does not apply.
Footnote 6: We note that the legislature placed the preemption clause in Title 9 of the Washington criminal code rather than in Title 35, which governs activities of cities and towns, or Title 36, which governs activities of counties. Although this placement is not conclusive of the legislature's intent, it supports our analysis in Cherry regarding the penal focus of the preemption clause.
¶31 A municipality acts in a proprietary capacity when it "acts as the proprietor of a business enterprise for the private advantage of the [municipality]" and it may "exercise its business powers in much the same way as a private individual or corporation." Hite v. Pub. Util. Dist. No. 2 of Grant County, 112 Wn.2d 456, 459, 772 P.2d 481 (1989); Branson v. Port of Seattle, 152 Wn.2d 862, 870, 101 P.3d 67 (2004). When acting in a proprietary capacity, a city may enter into any contract "'which is necessary to render the system efficient and beneficial to the public.'" Hite, 112 Wn.2d at 460 (quoting Puget Sound Power & Light Co. v. Pub. Util. Dist. No. 1, 17 Wn. App. 861, 864, 565 P.2d 1221 (1977)); see also Stover v. Winston Bros. Co., 185 Wash. 416, 422, 55 P.2d 821 (1936). By issuing a temporary use permit, the city was leasing its property to PNSPA and acting in its private capacity as a property owner.
¶32 The preemption clause does not prohibit a private property owner from imposing conditions on the sale of firearms on his or her property. RCW 9.41.290. Applying our reasoning in Cherry , it follows that a municipal property owner like a private property owner may impose conditions related to firearms for the use of its property in order to protect its property interests. For the same reason that a municipal employer may enact policies regarding possession of firearms in the workplace because a private employer may do so, a municipal property owner should be allowed to impose conditions related to sales of firearms on its property if a private property owner may impose them. The critical point is that the conditions the city imposed related to a permit for private use of its property. They were not laws or regulations of application to the general public.
¶33 We find that the city did not violate either RCW 9.41.290 or .300.
The dissenting opinions make interesting reading, but are probably of little practical importance because the court is unlikely to reverse its majority opinion any time soon. However, the comment by Judge Johnson that "the Washington constitutional right 'of the individual citizen to bear arms' could have also been implicated in this case" suggests one possible approach for challenging the Seattle gun ban.
Assuming this ruling is not to be reversed, it is clearly significant relative to the Seattle situation. The court has ruled that "a municipal property owner like a private property owner may impose conditions related to firearms for the use of its property in order to protect its property interests." It follows that the City of Seattle may impose such "conditions" for the use of city property; the only question is whether these conditions are in violation of state law or the state constitution.
Evidently the court is willing to allow "conditions" in the contract terms when the city allows an organization to use its property. So we can expect that festivals, shows, private parties, etc. which use city facilities will have "no-gun" conditions imposed in their contracts, and these conditions will be very difficult to fight given the Supreme Court precedent.
It is much more dubious (in this author's inexpert opinion) whether such "conditions" can be imposed on the general public when they enter city-owned facilities. Can individuals be thrown out of a city park, or charged with trespassing, just because they refused to follow the no-gun conditions? Note that the court decision states: "The critical point is that the conditions the city imposed related to a permit for private use of its property. They were not laws or regulations of application to the general public." This suggests that the court would, indeed, find that no-gun rules applied to the general public would violate RCW 9.41.290.
Also of interest is the court's earlier finding, quoted in this decision that "...the central purpose of RCW 9.41.290 was to eliminate conflicting municipal criminal codes and to 'advance uniformity in criminal firearms regulation.' ... We also found the penal nature of the Firearms Act, chapter 9.41 RCW, to be particularly significant..." This suggests that, while RCW 9.41.290 might not apply to civil issues such as contract conditions, it would apply if a criminal penalty were involved. This might prove to be a useful legal approach, since the City of Seattle proposes to charge violators with criminal trespass.
One thing seems certain: whoever decides to challenge this gun ban will need the resources to take the battle all the way to the Washington Supreme Court. (And perhaps more than once — it may be necessary to challenge a great many individual "conditions" from a number of city departments.)
Since the Executive Order was just issued, at this time we have no information about how the plan will be implemented by the various city departments.
The Seattle Municipal Code, section 18.12.140, prohibits firearms in parks:
It is unlawful to carry a firearm in any park; provided, that this section shall not apply to police officers or to Department of Parks and Recreation employees acting pursuant to and in accordance with rules and regulations of the Superintendent; and provided further, that this section shall not apply at shooting, trap-shooting and skeet-shooting ranges.
[If anyone has information on the legal status of this ordinance, please contact me.]
The Seattle Public Library Rules of Conduct Policy also bans guns:
For the comfort and safety of patrons, volunteers, and staff, and the protection of Library property, the following actions are examples of conduct not allowed on Library property:
...
Carrying firearms and dangerous weapons of any type (except by law enforcement officers and authorized security personnel of The Seattle Public Library).
The City of Federal Way, Washington, is using the same "property owner" arguments to support its firearms bans in city council chambers and city parks.
Federal Way City Code, Chapter 6 (Criminal Code), Article VI (Firearms and Dangerous Weapons), Section 6-139 (Firearms prohibited in certain places - Exceptions - Penalty), paragraph (a)(5):
It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a firearm:
...
The council chambers of the city council.
Federal Way City Code, Chapter 11 (Parks and Recreation), Article III (Park Regulations), Section 11-72 (Firearms and Fireworks):
Firearms, fireworks, bows, arrows and sling-shots are prohibited in any park. It is unlawful to shoot, fire or explode any firearms, fireworks, firecracker, torpedo or explosive of any kind or carry any firearms or to shoot or fire any airgun, bows, and arrows, BB gun or use any slingshot in any park. ...
(Emphasis added in both code sections above.)
In Federal Way, attorney Mark S. Knapp is representing a client who objects to the city's gun ban in parks and the city council chamber.
A thread on the OpenCarry.org forum: Baghdad Seattle: Mayor Nickels seizes power, bans guns from all city property
Copyright © 2008 William S. Statler. This work is licensed under a
Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License
which grants limited rights of non-commercial distribution and reuse. Please read
http://creativecommons.org/licenses/by-nc-sa/3.0/us/
for details. All other rights reserved.
Changelog:
2008-06-15: added info on related issues.
2008-06-14: first version.
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