SAF brief demolishes Seattle's Supreme Court review request

While many in Seattle woke up with headaches Sunday morning in a new year filled with more challenge than “hope and change,” attorneys for the Second Amendment Foundation, National Rifle Association, two other groups and five citizens may be giving the city another headache in a case with national implications.

The year ended with the State Supreme Court getting a devastating 22-page response to the city’s earlier petition for the high court’s review of an Oct. 31 unanimous appeals court ruling against the city in its attempt to ban firearms from city parks property. The brief, from Seattle attorney Steven W. Fogg, is as loaded with ammunition as any of the guns Seattle wants to ban.

Anti-gunners across the country covet a victory over this state’s preemption statute. More about that in a moment. The SAF/NRA response could be the rock that derails this on-going court melodrama.

From the outset, the response reminds the Supreme Court of facts that anti-gun Mayor Mike McGinn and his predecessor, Greg Nickels, might like the public to forget, such as:

…the City knew to a certainty that this ban violated the law. For instance, in a May 2006 letter to Speaker of the House Frank Chopp, then-Mayor Greg Nickels admitted that only the legislature had the power to regulate firearms.

For everyone’s edification, here is what Nickels wrote:

“We cannot accomplish anything without your personal leadership in Olympia. State law preempts any and all local regulations related to firearms. Our hands are tied at the local level and we are unable to adopt any local laws to protect our residents from gun crime.”

To hear Nickels tell it at the time, Seattle must be one very violent and dangerous place. However, this column checked with both the Seattle Police Department and King County Sheriff’s Department Friday for some year-end crime statistics. Seattle ended 2011 with what appears to be 19 or 20 homicides, which is below the average for Seattle and well below the average for cities of Seattle’s size. Milwaukee, WI for example logged its first homicide of the year at 5:30 a.m. Sunday morning. In 2010, Milwaukee boasted 94 slayings, and during the first half of 2011, there were twice as many homicides than Seattle posted for the entire year.

King County had logged six homicides for the year on Friday, and one death related to a crime in the past.

Until Nov. 1, 2011, it was illegal to carry a concealed handgun in Wisconsin. It’s been legal to do it in Washington since 1935. Here’s what the SAF/NRA brief says:

The possession of a firearm is a clearly protected right under the United Stats and Washington Constitutions…In addition, persons may openly carry lawful firearms in places where firearm possession is otherwise legal if they do so in a manner that does not manifest an intent to intimidate or warrant alarm.

Yet the City of Seattle considers itself above the law, and according to their argument, simply keeping armed citizens from city park facilities was not a big deal because there was no criminal penalty in the ban rule. Not so, the SAF/NRA response accurately notes:

But the Firearms Rule carries a penal element, and the City’s argument to the contrary is, quite simply, wrong.

Under the Rule, if a City official asks a person possessing a firearm to leave the premises and the person refuses, that person will be charged with criminal trespass.

When the issue went before King County Superior Court Judge Catherine Shaffer, she reminded the city that citizens have right to carry under both the state and federal constitutions, months before the U.S. Supreme Court ruled in SAF’s landmark lawsuit against a handgun ban in the City of Chicago. By no small amount of irony, the Windy City is Nickels’ hometown.

What is really at stake, as the response brief notes, is Washington’s model preemption statute. Fogg writes:

If this Court were to read the Preemption Clause as the City urges, it would permit a municipality to regulate firearms to its heart’s content as long as it did so under the guise of a “rule” or “policy.” This cannot be what the legislature intended, as such an interpretation would render the Preemption Clause’s first sentence completely meaningless.”

The attorney’s point underscores the national implications of this case. Other states adopted preemption statutes in the years since Washington’s was first passed in 1983 and reinforced in 1985. If Washington’s preemption can be neutered by municipal gamesmanship, the same strategy could be tried elsewhere.

However, based on the Seattle experience, it would amount to municipal imperialism. The overwhelming majority of respondents to the ban were against it. And the SAF/NRA brief makes a point of reminding the State Supreme Court — and the McGinn administration— about that:

“The public has an interest in having these policy issues fully assessed and determined by the state legislature in a process that invites public input. Such process would lie in stark contrast to what happened here, where the City unilaterally imposed this rule, disregarding the fact that an overwhelming majority (96%) of the people commenting on the proposed gun ban opposed such a ban.”

The state high court will now decide whether to hear Seattle’s case, or let the unanimous appeals court ruling stand. It will add one more dimension to an already politically-charged atmosphere in which gun rights is going to be more than an issue hiding in the shadows.

PLEASE FORWARD the link to this column and share with all of your chat lists and forums

PLEASE SUBSCRIBE by clicking on the link above

And Don’t forget to visit:

Hunting-Washington.com

HuntFishNW.com

GunnersLair.com

TheHighRoad.org

Northwest Firearms.com