HomeMy WebLinkAbout03/02/2010 03C-1 Citizen Service Request Response RE: Gun Show Regulation MEMORANDUM
TO: Honorable Mayor Cawley and City Council Members
FROM: Jeff Cutter, City Attorney
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DATE: February 25, 2010
SUBJ: Response to Lawrence Breer -Gun Show Regulation
The legal department has been asked to provide a response to concerns
raised by Lawrence Breer that the City may "unwittingly be violating state law" by
allowing gun shows to take place within the City limits wherein sales of firearms
take place between citizens and gun show participants. The City previously
responded to Mr. Breer's concerns during an earlier Council meeting by advising
that firearm regulation is specifically preempted by state law and therefore any
firearm regulation that was not specifically authorized by RCW was not
permitted. This memorandum is intended to provide further substance to that
position, and " a more specific response' to the concerns voiced by Mr. Breer
• during the February 16, 2010 City Council meeting.
RCW 9.41.010(10) defines what a firearms dealer is, providing as follows:
"Dealer" means a person engaged in the business of selling firearms at
wholesale or retail who has, or is required to have, a federal firearms license
under 18 U.S.C. Sec. 923(a). A person who does not have, and is not required
to have, a federal firearms license under 18 U.S.C. Sec. 923(a), is not a
dealer if that person makes only occasional sales, exchanges, or
purchases of firearms for the enhancement of a personal collection or for a
hobby, or sells all or part of his or her personal collection of firearms.
(Emphasis added)
From this definition it is the legal department's belief that the exhibition of
firearms at gun shows and firearm sales during said gun shows by persons
meeting the definition identified in the bold portion set forth above is not a
firearms dealer within the terms of both federal and Washington firearms laws.
Therefore, the laws regulating sales of firearms by those required to be
registered as firearm dealers do not pertain to those selling arms at the local gun
shows.
RCW also provides for a complete state preemption of firearms regulation
within the boundaries of the state. This preemption is set forth in RCW 9.41.290,
stating:
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
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firearms or parts thereof, including ammunition and reloader components. Cities,
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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)
Therefore, unless specific authority is provided by statute, the City of Yakima is
not authorized to regulate firearm sales and purchases. The specific regulatory
authority provided to Cities within the state, in relevant part, is as follows:
(2) Cities, towns, counties, and other municipalities may enact laws and
ordinances:
(a) Restricting the discharge of firearms in any portion of their respective
jurisdictions where there is a reasonable likelihood that humans, domestic
animals, or property will be jeopardized. Such laws and ordinances shall not
abridge the right of the individual guaranteed by Article I, section 24 of the state
Constitution to bear arms in defense of self or others; and
(b) Restricting the possession of firearms in any stadium or convention center,
operated by a city, town, county, or other municipality, except that such
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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
(ii) Any showing, demonstration, or lecture involving the exhibition of
firearms. (Emphasis added)
There are other firearms restrictions listed in the cited statute that are available
to cities, but the cited statute above is "applicable to Mr. Breer's concerns, and
specifically protects activities related to firearms shows, demonstrations and
exhibitions.
Finally, the RCW provides an immunity provision for actions taken by a
City involving firearms. This provision would avert Mr. Breer's concern regarding
any "unwitting" action of the City that might be argued to have violated the laws
of the state concerning firearm regulation. RCW 9.41.0975 provides, in relevant
part:
(1) The state, local governmental entities, any public or private agency, and the
employees of any state or local governmental entity or public or private agency,
acting in good faith, are immune from liability:
(a) For failure to prevent the sale or transfer of a firearm to a person whose
receipt or possession of the firearm is unlawful; •
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(b) For preventing the sale or transfer of a firearm to a person who may lawfully
receive or possess a firearm;
Although the majority of this statute pertains to a city's actions regarding
issuance or denial of firearms permits, the cited portion would seem to respond
to Mr. Breer's concern as well.
The summary is that the City is authorized by statute to only assert
restrictions on firearm possession, purchase and sale that are specifically
allowed by statute. That limited regulatory authority does not presently include
the activities that are of concern to Mr. Breer. If a change in this present status
is favored by Council, or by any citizen of the state, the proper venue to request
it would be at the state legislative body. The City Council is very limited in its
opportunities to provide firearm regulation.
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