Fish Or Man

Sunday, November 06, 2005

City Of Ellensburg Brief

The City of Ellensburg got their Respondent's Brief in just under the deadline. I've had requests for copies of it, so I figured I would post it here, (or atleast the text of it here). Those with knowledge of the legal issues involved, feel free to give input in comments or at shootatfish@yahoo.com
Thanks.

I. Index of Cases
A. Seattle v Riggins, 63 Wn. App. 313, 314 (1991)
B. Bellingham v Schampers, 57 Wn. 2d 106, 109 (1960)
C. State v Brayman, 110 WN.2d 183, 193 (1988) cited from Riggins
D. State v Rabon, 45 Wn. App. 832 (1986)

II. Index of Statutes
A. ECC 7.32.08
B. RCW 9.41.290
C. RCW 9.41.270

I. STATEMENT OF CASE
On May 22, 2004, Michael ***** was working as a bank teller intern at Washington Mutual Bank at the Fred Meyer store in Ellensburg, Washington. At approximately 11 am, Mr. ***** was working at the front teller station closest to the door when he noticed FishorMan walking towards the bank through the Fred Meyer Store. Mr. *****'s attention was drawn to FishorMan because FishorMan had the handle of a pistol sticking out of the front of his jeans. FishorMan entered the bank and came to Mr. ****** teller station. Although FishorMan was courteous while handling this transaction, Mr. ****** was uncomfortable because of the exposed gun in FishorMan's trousers. Mr. ****** dealt with FishorMan for approximately one minute and Mr. ***** then left the Washington Mutual Bank after his transaction was completed. After consulting with his supervisor, Mr. ****** decided to call law enforcement.

Destine ######, the supervisor on duty at the Washington Mutual Bank on May 22, 20004, observed his employee Michael ****** immediately after Michael had contact with FishorMan. Destine described his observations of Michael as "shaken up, kind of like bewilderness. Like he couldn't believe that someone had just done that, I guess. I don't know. He was kind of shocked, kind of . . . His whole aura." He wasn't like his normal self after helping a customer. Destine ###### contacted law enforcement and explained to law enforcement what they had observed in the bank.

Officer Ray --------- then made contact with FishorMan in the Fred Meyer store. Officer "Ray" observed the firearm in FishorMan's waistband. The weapon was a 1911-style .45 caliber pistol with the hammer cocked back and it was not in a holster. Officer "Ray" tried to explain to FishorMan that he was investigating a complaint at which point FishorMan said, "If I'm not in violation, get out of my face." FishorMan then raised his voice and became agitated and angry with Officer "Ray". FishorMan also began yelling at Officer "Ray".

Officer "Ray" ultimately allowed FishorMan to leave and did not cite FishorMan at that time.

FishorMan was charged by complaint which was filed with the district court on June 3, 2004. On March 3, 2005 a pre-trial motion was held where the defendant moved to dismiss the charge against him based upon the unconstitutionality of the Ellensburg City Code 7.32.08. In an oral ruling, Judge Ellis denied FishorMan's motion, (appellant did not transcribe any of the pretrial hearing). On May 6, 2005, a jury convicted FishorMan of unlawful display of weapon, ECC 7.32.08, on May 6, 2005.

II. LEGAL ARGUMENT
ECC 7.32.08 (Unlawful Display of Weapons ordinance) does not infringe the right to bear arms under Article One, section 24 of the Washington Constitution.

Article One, Section 24 of the Washington Constitution provides individual citizens with the right to bear arms. It reads as follows:

The right of the individual citizen to bear arms in defense of himself, or the
state, should 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.

The right to bear arms, however, is not absolute and is subject to reasonable regulation by the state under its police power. Seattle v Riggins, 63 Wn. App. 313, 314 (1991). Municipalities have broad powers to enact police regulations. Bellingham v Schampera, 57 Wn.2d 106, 109 (1960). Reasonable police regulations will be upheld unless (1) the regulation conflicts with the state law; or, (2) the legislature has clearly and explicitly stated its intention to preempt the power of the local government to legislate in a particular area. Id.
With respect to weapons, the state of Washington has clearly stated its intent to preempt the power of local governments to legislate in that area. RCW 9.41.290 ("State preemption") states the following:
The state of Washington 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 parts thereof, including ammunition and reloader components. Cities, 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.

FishorMan has challenged the constitutionality of the Ellensburg City Code 7.32.08 on the basis that the language of that ordinance is "more restrictive than" the language of the corresponding state statute and that the ordinance therefore cannot withstand constitutionality scrutiny. However, FishorMan has failed to meet the heavy burden imposed upon one who challenges the constitutionality of an ordinance.
A legislative enactment is presumed constitutional, and the party challenging it bears the burden of proving it unconstitutional beyond a reasonable doubt. Riggins citing State v Brayman, 110 Wn.2d 183, 193, (1988). If the court can reasonably conceive of a state of facts which would justify the legislation, then those facts will be presumed to exist and the statute will be presumed to have been passed with reference to those facts. Id. Where legislation tends to promote the health, safety, morals, or welfare of the public and bears a substantial relation to that purpose, every presumption in favor of constitutionality will be made. Id.

ECC 7.32.08 (making, selling, concealing weapons) reads as follows:

It is unlawful for any person to…. Carry or conceal any dagger, dirk, knife,
pistol, or other weapon apparently capable of producing bodily harm in a manner,
under circumstances, and at a time or place that either manifests and intends to
intimidate another or that warrants alarm for the safety of other persons;. . .

The corresponding relevant state statute is RCW 9.41.270 (Weapons Apparently Capable of Producing Bodily Harm-- Unlawful Carrying or Handling-penalty-exceptions):

1. It shall be unlawful for any person to carry, exhibit, display, or draw any
firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or
any other weapon apparently capable of producing bodily harm, in a manner, under
circumstances, and at a time or place that either manifest an intent to
intimidate another or that warrants alarm for the safety of other persons.
2. . . .
. . .
3. subsection 1 of this section shall not apply to or
affect the following:
a. any act committed by a person while in his or her
place of abode or fixed place of business;
b. Any person who by virtue of
his or her office or public employment is vested by law with a duty to preserve
public safety, maintain public order, or to make arrests for offenses while in
the performance of each duty;
c. Any person acting for the purpose of
protecting himself or herself against the use of presently threatened unlawful
force by another or for the purpose of protecting another against the use of
such unlawful by a third person;
d. Any person making or assisting in making
a lawful arrest for the commission of a felony; or
e. Any person engaged in
military activities sponsored by the federal or state governments.

Although the city ordinance does not include the exceptions set forth in RCW 9.41.270, that does not render the city ordinance inconsistent with or more restrictive than the state statute. The city ordinance would be inconsistent with or more restrictive than the state statute if the city ordinance imposed a total ban on carrying, exhibiting or displaying a firearm. However, the city does not place that total ban. Instead, the city, just as the state does, restricts the carrying of a weapon or firearm "in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons." Simply because the ordinance excludes the defenses allowed for under the state law does not mean that those defenses are not available to a person charged under the city code. Just as the defense of "self-defense" is not outline in any assault statute, a person charged with ECC 7.32.08 would be entitled to defend that he was acting for the purpose of protecting himself. That person would not be precluded from raising that defense even though it is not noted in the statute as a specific defense. It would then be up to the trier of fact to determine whether or not that person was, in fact, protecting himself or instead had the intent to intimidate another with no lawful purpose.


Because the legislature appears to have clearly stated its intention to preempt the power of local governments to legislate in the area of firearms, it is not necessary to examine RCW 9.41.270 in relation to ECC 7.32.08 in terms of a conflict analysis. However, it should be noted that even if preemption were not clearly stated by the state, the city ordinance would likewise survive a challenge to the ordinance as being in conflict with the state statute. An ordinance is considered to conflict with the state statute when the ordinance declares something to be right which the state law declares to be wrong, or vice versa. State v Rabon, 45 Wn. App. 832 (1986). In this instance, both the ordinance and statute prohibit identical conduct. Again, the state's specific inclusion of exceptions does not preclude a person charged with the city ordinances from raising those defenses. The core prohibited conduct in both the ordinance and statute is identical.

Because FishorMan limited his constitutional challenge to the preemption issue, the city will not address either overbreadth or vagueness issues.


III. CONCLUSION
For the above-stated reasons, the Ellensburg City Ordinance ECC 7.32.08 is not unconstitional and FishorMan's appeal should be denied.

Dated this ______
Respectfully submitted,
Ellensburg City Prosecutor