Pac. Nw. Shooting Park v. City of Sequim

In a setback, the Washington State Supreme Court ruled 6-3 against Pacific Northwest Shooting Park, finding that statewide preemption applies only to criminal matters and not civil ones where a municipality or county “acts in a capacity that is comparable to that of a private party.” This is likely to have far-reaching effects.

I have noted before that preemption prevented municipalities and counties from restricting concealed carry on their various properties but with this ruling I predict the return to a multitude of new regulations to harass our people and eat out their substance. There is a glimmer of light in the opinion of the court:

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.

Even so, this still implies any private function on public land can now have municipal restrictions on concealed carry.

Still, the court is being disingenuous here. Governments within the state are not private citizens, and they are of course restricted by RCW 9.41.290. Look at how it's worded:

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with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Clearly a contractual agreement has the force of the municipality behind it, and municipalities are specifically preempted from regulating firearms. Regulating by contract is not sufficiently different than regulating by ordinance or policy, especially when it affects the actions of the general public (and the general public is indeed invited to gun shows). Even if they were renting out the convention center for a wedding, this sort of contractual clause runs afoul of preemption. Cities that own public property and use that power to create the effect of regulation are sufficiently appearing to regulate in my humble opinion, and RCW 4.91.290 was specifically written to preempt such regulation.

The problem crops up in RCW 9.41.300. Convention centers are called out for local regulation except for CCW or “any showing, demonstration, or lecture involving the exhibition of firearms.” Yeah, they managed to weasel on that point. A gun show is not concealed carry or an showing, demonstration, or lecture. It is a gathering to trade firearms.

Except the section right after the above says this:

(3)(a) Cities, towns, and counties may enact ordinances restricting the areas in their respective jurisdictions in which firearms may be sold, but, except as provided in (b) of this subsection, a business selling firearms may not be treated more restrictively than other businesses located within the same zone. An ordinance requiring the cessation of business within a zone shall not have a shorter grandfather period for businesses selling firearms than for any other businesses within the zone.
(b) Cities, towns, and counties may restrict the location of a business selling firearms to not less than five hundred feet from primary or secondary school grounds, if the business has a storefront, has hours during which it is open for business, and posts advertisements or signs observable to passersby that firearms are available for sale. A business selling firearms that exists as of the date a restriction is enacted under this subsection (3)(b) shall be grandfathered according to existing law.

So, weaseling is not enough. It's pretty clear that gun shows cannot be treated any differently than any other show. Unless the City of Sequim has boilerplate on the sales of firearms to anyone renting the convention center, the gun show in question was treated differently because they were selling firearms!

Justice Richard B. Sanders's dissent is great:

The majority concludes Pacific Northwest Shooting Park Association (PNSPA) insufficiently pleaded a claim of tortious interference with a business expectancy because its complaints do not specifically state it expected to do business with vendors and the general public. The majority is wrong. A pleading is sufficient so long as it provides notice of the general nature of the claim asserted. The nature of PNSPA's claim is pellucid and its complaints entirely adequate. It alleges tortious interference with its expectation of hosting a gun show. No additional specificity is required.
Furthermore, the majority concludes RCW 9.41.300, which prohibits municipalities from regulating gun shows, permits municipalities to regulate gun shows. I am nonplussed. The statute means what it says. City of Sequim lacked authority to regulate PNSPA's gun show.

Justice James M. Johnson's dissent was also pretty harsh:

I concur with the dissent; however, I write separately in order to briefly clarify Washington law regarding firearms and their sale, which was misstated or improperly applied by the police chief here. This is particularly important as the Washington constitutional right “of the individual citizen to bear arms” could have also been implicated in this case. Whether this right includes a corollary constitutional right to sell or trade firearms need not be decided since Washington statutory law, correctly understood, allows the sales. I concur with the dissent.
Police Chief Nelson made a significant legal error in his April 11, 2002 memo, which he personally distributed. The memo restricted gun sales at the show in a manner not allowed by Washington law. It is difficult to find that a law enforcement officer, who surely had access to the RCWs, could incorrectly state the law in good faith.

I have edited citations out of the opinions here for brevity. Check out the opinions directly for full text and the background information.

Josh Poulson

Posted Thursday, Oct 12 2006 12:16 PM

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There is one comment on this entry.

Oy, stop me before I post again!
Has it ever seemed to other RKBA folks like the older people in our movement are the most cynical folks you've ever met? The thing that scares me about this decision (other then the whole "losing your freedom/watching the country swirl the drain thing) is that I think I'm turning into one of those cynical old guys.

I'm going to go read Justice Sanders' dissent a few more times. That should help.


Posted Friday, Oct 13 2006 08:21 AM

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