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Gun Ban Under Fire

By Advokat October 28, 2009

Today a coalition of gun rights advocacy groups, both national and from Washington, along with several allegedly aggrieved Washington citizens sued the City of Seattle, Mayor Nickels and the Seattle Department of Parks and Recreation over the City’s firearm rule prohibiting the possession or display of firearms at certain park facilities where children and youth are likely to play.

The lawsuit filed in King County Superior Court alleges the rule violates plaintiffs “constitutional and statutory right to carry a firearm public parks and community centers.”  The focus of the lawsuit is on a Washington state law that regulates firearms and provides:  “The State of Washington hereby fully occupies the entire field of firearms regulation within the boundaries of the state . . . .”

The lawsuit argues that since state law is superior to any local law, the has effectively precluded, or preempted (using the legal term), the city from enacting the firearm rule.  The lawsuit notes that Attorney General Rob McKenna issued what is called an Attorney Generals Opinion (AGO) that any effort by the city to regulate firearms on City Property would be preempted by the State law.  Slam dunk say the plaintiffs and many critics of Mayor Nickels.

But not so fast.  Within McKenna’s AGO is the recognition that the Washington Supreme Court has ruled that the State law “does not preempt a city’s ability to impose conditions when it is acting in a private capacity.”

In other words, the city takes action in either a governmental or private capacity.  A city can do certain things only because of its governmental authority—e.g. police, fire, etc. But a city can do other things just like any other private citizen—e.g. owning and leasing property.

Thus, in acting as a landlord, the city has the same ability to impose lease restrictions as a private landlord.  So the City likely will argue that it is operating the park facilities at issue in its proprietary capacity and not its governmental capacity.

It seems clear that operating and maintaining parks are a governmental function.  On the other hand, there is authority that operating a concession stand in a park is a proprietary function.  At issue here are community centers, swimming pools, playgrounds, ball fields, and similar facilities.

Are these more like park open space?  Or more like a concession stand?  The City definitely has an uphill battle here, but they have a fighting chance.  Of course, the state legislature could do the right thing and allow cities to enact these types of regulations to protect our youth where there are documented problems with guns.  Of course doing so would run straight into the gun lobby and that is an article for a different nerd.
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