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Seattle Mayor issues Executive Order banning guns from city facilities and parks

June 9, 2008

Seattle Mayor Greg Nickels, in a sweeping attempt to respond to a rarely occurring problem, has issued an executive order banning firearms from all Seattle city facilities, including parks, Seattle Center, and community centers. The order includes holders of concealed pistol licenses (CPLs).

The ban violates state law, which pre-empts all municipal law on firearms. Mayor Nickels knows this, but is relying on a bizarre State Supreme Court decision from 2006, in which the Court upheld the City of Sequim’s action to regulate a gun show on public property, something a municipality is not permitted to do under state law.

I say, “bizarre,” because I think Justice Fairhurst was just that in her reasoning. Writing for the majority in a new language in which an “exhibit” is not necessarily a “show,” she reasoned (I call it that as a matter of custom, charity, and courtesy) that the show was exempt from state pre-emption because it was not a “showing, demonstration or lecture involving the exhibition of firearms.” “Huh?” you say. So do I.

By the way, this is a good reason to vote for Michael Bond for State Supreme Court Justice; he is running against Justice Fairhurst.

But Mayor Nickels is evidently confident that this 2006 holding for the City of Sequim will fuel his order, which required no approval by the City Council. Not that council approval would likely have been hard to come by…

Mayor Nickels’s order was a response to an incident in which a deranged person who had a CPL shot some people (no fatalities) at Folklife over Memorial weekend. A mental health background check is necessary for issuance of a CPL, but only an actual involuntary commitment is likely to show up. Things slip the net. The providence of God delivers all sorts of seemingly random acts. So a deranged person got a gun permit–is keeping sane people from defending themselves in woodsy parks going to make Seattle safer?

The same reasoning should certainly lead to banning cars, since a meth-head ran a stop sign a few years ago and killed a woman in a residential Tacoma intersection. The meth-head had a valid driver’s license.

It seems whether mistakes are individual or institutional, there are two possibilities in their aftermath. Maybe issuing the Folklife shooter a CPL was a mistake; maybe it was not because he had no legal disqualification. In any case, the mistaken individual or institution can become more vigilant and take measures to reduce its expected frequency. Or, the mistaken individual or institution can compound the error, and perhaps make life more restrictive and precarious for everyone, including the diligent. The City of Seattle, sadly, has opted for the latter course.

Folklife is a terrorist target waiting to happen. The incredible thing is that so far, only a local loony has disrupted the festival’s hypnotic peace. Maybe fans should be treated as mass-murder suspects, just like perfectly good people who fly on commercial airlines everyday at the expense of their equanimity, dignity, and unreturned property. I don’t wish that on anyone.

A gun ban that includes people who have already passed background checks, and compromises the fundamental right to keep and bear arms for self-defense, is a stupid, stupid response to a quirk. Demands to be kept safe at crowded events featuring a near-mesmerizing atmosphere are just as misguided.

I hope the State Supreme Court will not compound its 2006 mistake; I hope it will take more accurate aim this time and blow away Mayor Nickels’s executive order.

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8 Comments
  1. June 9, 2008 1:18 pm

    Mayor Nickels apparently has a reading comprehension problem. The statute, RCW 9.41.300, is clear as can be:

    (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:

    (i) Any pistol in the possession of a person licensed under RCW 9.41.070 or exempt from the licensing requirement by RCW 9.41.060; or

    That last part, refering to 9.41.070, is the concealed pistol license section.

    But the Mayor thinks that his reading of a confused decision by Justice Fairhurst overrides plain language. I guess I should not be too surprised: in our postmodern world words can only mean what nobody thinks they mean.

  2. June 9, 2008 2:08 pm

    Yes, Nickels and Fairhurst are allies in confusion. He can only rely on her holding, because state law clearly is against him. He can only hope that Justice Fairhurst’s dictionary juggling took care of the statute’s plain meaning.

    I think the rather crystalline legislative intent will prevail. Otherwise, we’re going to start running out of reasons to stay in Washington….

    Go, Michael!

  3. Don permalink
    June 9, 2008 8:16 pm

    One doesn’t need to be an attorney to read and fully understand Chapter 9.41 of the Revised Code of Washington regarding concealed weapon carry.
    I’ve spent the past 2 days writing authors in response to articles they’ve written in The Seattle Times and Seattle P-I.

    To quote a comment I wrote in the “Soundoff” section of the Seattle P-I, among other comments…
    “I invite Mr. Nickels or any duly appointed law enforcement officer operating within the City of Seattle to (1) ask me to vacate any city owned park without proving good cause for doing so or, (2) ask me to surrender my weapon while state law remains status quo.
    I could use the money when the city and SPD loses the lawsuit I’d certainly file.”

    If Nickels is as stupid as he’s coming across to be thinking he’s going to pass any ban in violation of RCW 9.41 then the City Attorney should give up his job to a first year law student and get the city’s checkbook out when the lawsuits start piling up.

  4. June 9, 2008 8:44 pm

    Don, you’re right: we’re not quite back in the Hammurabi Code era, when the law was posted invisibily high up on a stele. Our legislative mandate is plain meaning. Some lawyers just happen to live up to Murphy’s Law and sit on high benches far beyond their reasoning capacity, interpreting perfectly clear legislation.

    It’s just that, ever since we’ve had to re-examine what “is” is, we’re at the point where “exhibit” can be parsed from “show.” An idea created from whole cloth is then substituted for representatively enacted law.

    You are not reading comprehension challenged; that affliction seems to fall to Supreme Court Justices, mayors, and helpful legislators out to push a weapon-free world.

    BTW, if the City owns the parks and centers, it also certainly owns the sidewalks of course, and the streets, as well. Justice Fairhurst’s holding in Pacific Northwest Shooting Park Assn v. The City of Sequim asserted an interesting twist. Citing a case called Cherry v. Mun. of Metro. Seattle (1991), she wrote:

    “…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.”

    Now, the blurring of private and public sectors into indistinction is the very definition of fascism. We need to take a serious deep breath here and get back to drawing some basic lines between public and private property. We’ve lost a lot of ground.

    Keep writing.

  5. Don permalink
    June 10, 2008 4:09 pm

    Lauren,
    Thanks for the responses and your thoughts.

    I emailed the writer Sharon Pian Chan yesterday in response to an earlier article and she sent me the link to this latest article

    “Dear Don,

    It’s not clear whether he has the legal authority. Check out my latest report: http://seattletimes.nwsource.com/html/localnews/2004468024_guns10m.html
    Sharon Chan”

    I apologize for the rest of this posting being rather lengthy but I thought you might like to read what I’ve dug up on this issue.
    Here is the reply email to Ms. Chan in its entirety:

    “Dear Sharon,
    Thank you for the reply and the link to the article which I read with great interest.
    There are some issues I take with the city’s plan to bar concealed weapons carry in or on city owned properties, which, aside from parks and the obvious City Hall would also include the public libraries.

    > “At many properties, including City Hall, you can bring a gun if you have a concealed-weapons permit. Under this order, people with concealed weapons will be asked to give up their weapon or leave.”

    All a duly appointed law enforcement officer can legally do is to “ask” me to give up my weapon voluntarily.
    Without probable cause, I don’t have to surrender it under state law:

    > RCW 9.41.098
    > Forfeiture of firearms — Disposition — Confiscation.

    As I consider myself a law abiding citizen with a great appreciation for our police officers (I’ve printed “Thank You” cards which I give to every cop I see) I would most likely abide by the officer’s instructions and vacate the premises or, if I have business to conduct, surrender my weapon (which I used to do with Harborview Security when visiting the hospital) years ago and then take the matter up with the courts as I will vigorously defend my rights under state law.
    >
    > The city does not have the authority to arrest or fine people for bringing a gun onto city property. Only the state can enact laws governing firearms, and the mayor acknowledged the city could face a legal challenge.
    >
    > The city can, however, charge violators with trespassing.

    According to the Seattle Municipal Code the city can not LEGALLY charge any person with criminal trespass when the person has a right to be in or on the property.
    >
    > SMC 12A.08.040
    >
    > Criminal trespass.

    Please take note of Section C; Paragraphs 1 – 4 and the end paragraph as shown here.
    >
    > As formerly written, Seattle trespass ordinance was invalid as applied to trespasses in public buildings, but was valid insofar as it pertained to trespasses on private property. City of Seattle v. Davis,
    >
    > 32 Wn.App. 379, 647 P2d 536 (1982).>
    >
    The outcome of the 2006 State Supreme Court ruling on the Sequim case has not been made entirely clear so it’ll be interesting to see how the City Attorney’s office (and very possibly the courts) interpret it.
    I imagine his office can look forward to many happy days defending this situation in court.

    > State Attorney General Rob McKenna’s office does not know of any cases in which the state has challenged a city for pre-empting a firearms law. It would be more likely for an individual to sue, a spokeswoman said.

    Aside from myself personally, and other legally licensed concealed weapons carrying citizens of the state, Seattle will most likely have to look forward to lawsuits from the NRA, Second Amendment Foundation and other gun rights groups.

    Again, leave it to our somewhat clueless Mayor to make a statement such as
    >
    > Nickels has urged the Legislature to pass a law denying guns to anyone who has been involuntarily committed to a mental-health facility as state law

    > RCW 9.41.040
    > Unlawful possession of firearms — Ownership, possession by certain persons — Penalties.
    >
    > (ii) After having previously been involuntarily committed for mental health treatment under RCW 71.05.320, *71.34.090, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047;

    already prohibits persons such as Clinton Chad Grainger from not only carrying but possessing a firearm legally.
    In this case the Snohomish County Sheriff and the state dropped the ball and any loopholes simply need to be filled so this doesn’t happen in the future.

    Our idiot Mayor would serve the citizens of Seattle better by expending more energy and police efforts to regulate weapons in the hands of persons not legally able to carry them rather than making it hard for law abiding citizens to be able to protect themselves when the police can’t.

    Just to make it clear – I’m not an attorney but I do educate myself in the laws pertaining to my individual rights as some in power would just as soon erode those rights – something I can not and will not allow without a challenge.
    I’m also not a gun-totin’ Dirty Harry wannabe but a responsible citizen who happens to legally own and carry (just) one fully registered pistol for personal safety and the safety of those around me.

    I apologize for the length of this email but the quoted law passages were, I felt, necessary for clarification of my points.

    Regards,

    Don ”

    I’ll just say that I legally carry a concealed weapon because the police can only respond to violence after the fact and I don’t intend to become a storyline on “CSI Seattle” if the show is ever thought of.
    That and because, as a 30 year veteran of the United State Marine Corps, I’ve lived through my share of violence from Vietnam through the 1991 Gulf War and am still here – all parts basically intact.

    You sound like an intelligent person with an interest in this topic so I’ll take the chance and invite you to email me with more of your thoughts if you’d like.
    My address is Emerald_Myst@live.com

    Don :-)

  6. June 10, 2008 4:31 pm

    Don,

    Please understand that as a lawyer, I am going to decline to give any legal advice on-blog. But no apology necessary for the length of your comment–it’s all substantive and informative. Thank you.

    I’ll add what anyone could read for himself, that the CPL statutes already make anyone with a history of involuntary mental commitment ineligible for a CPL. Snoho County blew it. It happens.

    Also, I have added the link to the Sequim case within my post so that people can read J. Fairhurst’s opinion for themselves.

  7. June 10, 2008 11:00 pm

    I have cornered Michael Bond on several occasions and he is the only judge that does not run away from the issue of Jury Nullification.

    As for Mayor Fatso, he just made Seattle parks into a victim disarmament zone. Increases of incidents since this order should be recorded, and he should be held accountable for every one of them.

  8. June 11, 2008 6:37 am

    Dok, just a note: Michael Bond is not yet a judge. But we hope that will change with the August primary.

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