Gun Ban Challenged. Again.

By Josh Feit November 27, 2009

Bob Warden, a Kent resident who carried a pistol into West Seattle's community center a couple of weeks ago to protest Mayor Greg Nickels' ban on guns in public parks and community centers, has filed a suit against the ban in U.S. District Court.

A separate suit against the ban was filed in King County Superior Court exactly a month ago by gun rights advocates. At that time, PubliCola's LawNerd assessed the weakness of the city's likely defense against the suit:

Within McKenna’s [attorney general's opinion] 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.

Of course, incoming Mayor Mike McGinn made a big deal about supporting the gun ban during the election, ridiculing his opponent Joe Mallahan for saying he was wary of expensive lawsuits.

McGinn said Mallahan didn't have his priorities straight and that fighting for gun control wouldn't be a major expense.

It looks like McGinn (and City Attorney-Elect Pete Holmes) will get the chance to take up that fight.

We've got messages out to McGinn's office and Holmes to get their responses to Warden's suit.
Filed under
Show Comments