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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 • 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 1 firearms or parts thereof, including ammunition and reloader components. Cities, 111 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 1110 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; • 2 (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. • 3