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Seattle Mayor Nickels setting stage for legal slap down
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Ousted Seattle Mayor Greg Nickels must be a masochist, yearning not only to be remembered as the mayor whose reign was called because of snow, but the man who also turned political defeat into public humiliation by opening the door to a lawsuit he – and in his wake, the city he should have served instead of trying to run – will certainly lose.
At least, that’s the analysis of Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation in Bellevue, just across Lake Washington from Seattle. He’s the fellow poised to file that lawsuit, and he’s got an impressive track record. Twice SAF has sued the City of San Francisco over gun bans – the second time in partnership with the National Rifle Association, Law Enforcement Alliance of America and other plaintiffs, the first time back in the 1980s all on its own – and won both times. SAF has forced Washington, D.C. to revise its handgun policies now that its gun ban has been stricken by the U.S. Supreme Court, and SAF is currently suing the City of Chicago over a handgun ban, a case that could end up before the high court.
Prohibiting possession of firearms on city property would not be a lawful condition, because RCW 9.41.290 preempts the power of a city to impose such a prohibition. - State Attorney General opinion
Last week, Nickels pushed ahead with his plan to ban firearms from city park property, which he has already been advised by State Attorney General Rob McKenna he has no authority to do. McKenna reminded the mayor of that last Friday. Under state preemption, (RCW 9.41.290) the statute adopted more than 25 years ago and used as a model by many other states, firearms regulation is solely the province of the state legislature. Cities and towns cannot adopt their own gun laws that differ or are more restrictive than laws adopted by the Legislature to apply statewide.
There are theories why Nickels doesn’t seem to get this. If one logs onto OpenCarry.org, a popular forum for open carry activists, it’s because he is an idiot. But that’s too simple (though the open carry crowd might get plenty of support for that analysis).
Another theory is that he is trying to look good for a position that may be invented just for him: executive director of the anti-gun Mayors Against Illegal Guns (MAIG). He was a founding member of that gun prohibitionist group, and since he has no job experience in the private sector, and is not an attorney, his job potential after he leaves office is kind of limited.
Prior to the enactment of RCW 9.41.290, it might have been legal to possess a firearm at a particular place in one city and a crime to possess a firearm in the same place in another city. RCW 9.41.290 was enacted to prevent these conflicting criminal codes. Allowing a city to use criminal trespass to enforce a ban on firearms allows conflicting criminal codes regulating the general public’s possession of firearms. In this respect, it makes little difference to a citizen who is subjected to conflicting criminal codes whether he or she is being prosecuted for the gross misdemeanor of first degree trespass, or for the crime of possession of a firearm. - State Attorney General opinion
A third theory is that the Obama administration will give him a golden parachute job with the administration, one of those “deputy director” posts where he shows up, sits behind a desk, answers a few phone calls, and essentially does nothing for a six-figure government salary. His critics believe this is a job description for which Nickels is eminently qualified.
What about this gun ban? It would apply to Parks and Recreation Department facilities, some 500 of them. That includes parks, playgrounds, community centers, the performing arts center, ball fields, teen life centers, tennis and basketball courts. Nickels has trotted out the argument that he is "doing this for the children." To paraphrase Samuel Johnson, "doing it for the children" is the last refuge of a politically bankrupt politician.
The public will have two weeks to comment on the proposal, according to Nickels’ spokesman Alex Fryer, but when I asked Fryer in an e-mail exchange what the city would do if public sentiment runs against the proposal, he didn’t answer. Here’s the exchange:
DW: In your news release, you wrote:
“Signs will be posted notifying the public that firearms are prohibited as a condition of entry into the facilities.”
Are those signs going up immediately, or will you be waiting until after the public comment period? What if the public is overwhelmingly against the proposal? Then what?
AF: No, signs are not going up immediately, they would go up after the comment period. We look forward to hearing the public’s response.
Nothing in there about public rejection of the idea; it appears Nickels’ mind is made up. That’s hardly a surprise. Comments in reader “sound-off” sections in both the Seattle Times and Seattle Post-Intelligencer have been running heavily against the plan, but that's not likely to sway Nickels. Hundreds of comments were posted over the weekend at both newspaper websites, and they essentially reflected the sentiments expressed during a public hearing on an earlier proposed ban last December.
Nickels insists that the city has the right, as a property owner, to set rules regarding use of that property. That position is based on a state Supreme Court ruling three years ago involving the City of Sequim in which the court said the city could impose restrictions on firearms possession as part of a contract for the use of city property by a private entity. However, the court noted in that ruling that, “The critical point is that the conditions the city imposed related to a permit for private use of its property. They were not laws or regulations of application to the general public. (Emphasis added.)
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this Section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. - WA State Constitution
Recognizing the parameters of the Sequim ruling, McKenna’s office still noted, in a 2008 letter to State Sen. Bob Morton and State Rep. Kevin Van De Wege that, “Large parts of city property are generally open to the public. Indeed, citizens may be required to enter city property, for example, to apply for a building permit. For these reasons, neither Cherry nor Pacific Northwest Shooting Park support the view that cities may prohibit the general public from possessing firearms on city property.”
All of this will likely be sorted out in court. If Nickels believes for a heartbeat that SAF and Gottlieb are bluffing about the lawsuit, he needs only to look where SAF is currently in court. SAF will be joined by its sister organization, the Citizens Committee for the Right to Keep and Bear Arms, and it appears likely that they will be joined by the NRA, since all three organizations have members residing in Seattle. SAF already has plaintiffs lined up, Gottlieb said. Indeed, when he announced last year that a lawsuit was likely, potential plaintiffs were beating down his doors.
It is not clear what McKenna might do. As attorney general, he could bring the weight of the state to bear in this situation, where a municipality flagrantly defies state statute, not to mention Article 1, Section 24 of the State Constitution. There has been no indication from McKenna's office if the state will move against Nickels, but it is not unprecedented for a state attorney general to slap down challenges to state law.
Although he thinks otherwise, Nickels is treading on very shaky ground.However, because he is already the lamest of lame ducks, maybe he thinks he has nothing to lose and a post-mayoral job to gain, even if the city is left with a losing legal action in his wake. If that’s not the definition of selfish motivation, it will do until someone comes up with a better one.
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