Fish Or Man

Saturday, December 17, 2005

The Actual Decision

(The bolding is mine, the italic is the judge's)





No. 05-1-00161-4



A Lower Kittitas County District Court jury found Appellant guilty of one count of unlawful display of a weapon in violation of Ellensburg City Code (ECC) 7.32.08. Appellant seeks reversal of the conviction on the grounds that ECC 7.32.08 is preempted by RCW 9.41.290. Oral argument occurred on December 5, 2005.


1. Standard of Review. {Insert legal paragraph here about what a review can and cannot pass judgment on.…}

2. Relevant Facts. The facts of this matter are not complicated. On May 22, 2004 Appellant entered the Washington Mutual Bank located within the Fred Meyer store located within the city limits of Ellensburg, Kittitas County, Washington. While in the bank and in the Fred Meyer store Appellant was carrying a 1911-style .45 caliber pistol in the waistband of his pants with the hammer cocked. Law enforcement was summoned and Appellant was ultimately charged with one violation of Ellensburg City Code (ECC) 7.32.08. On March 3, 2005 the trial court denied Appellant’s motion to dismiss the charge on the grounds that RCW 9.41.290 preempted ECC 7.32.08. A jury convicted Appellant as charged on May 6, 2005. On June 2, 2005 Appellant was sentenced to 90 days confinement with 90 days suspended; a $500 fine with $250 suspended; and 12 months of unsupervised probation.

3. Legal Issues on Appeal. Has RCW 9.41.290 preempted ECC 7.32.08?

4. Analysis. Appellant assigns two errors to the proceedings below: (1) that the trial court “erred in denying the defendant’s motion to dismiss” and (2) that the trial court “erred in allowing Jury Instruction No. 5.” As both assignments of error turn on the relationship between RCW 9.41.290 and ECC 7.32.08, a description of both is appropriate.

RCW 9.41.290 is entitled “State preemption” and states in pertinent part:

“Cities… 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… 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with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed… (emphasis added).

RCW 9.41.300 is entitled “Weapons prohibited in certain places – Local laws and ordinances – Exceptions – Penalty” and states in pertinent part:

(2) Cities… may enact laws and ordinances:

(a) Restricting the discharge of firearms in any portion of their respective jurisdictions…

(b) Restricting the possession of firearms in any stadium or convention center…

(3)(a) Cities… may enact ordinances restricting the areas… in which firearms may be sold…

(3)(b) Cities… may restrict the location of a business selling firearms to not less than five hundred feet from primary or secondary school grounds…

Accordingly, from the plain language of RCW 9.41.290 and 300, cities may only enact laws and ordinances restricting the discharge of firearms, restricting the possession of firearms in any stadium or convention center, or restricting the location of where firearms may be sold. Other laws “shall not be enacted and are preempted and repealed.” RCW 9.41.290

ECC 7.32.08 is entitled “Making, Selling, Concealing Weapons” and states in pertinent part:

“It is unlawful for any person to… carry… any… pistol… in a manner, under circumstances, and at a time or place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons…”

Since this ordinance regulates the manner in which a person may carry a pistol, and since legislature has clearly prohibited cities from regulating this conduct, this ordinance is “repealed” and has no force and effect. RCW 9.41.290; RCW 9.41.300. Appellant’s conviction must therefore be reversed.

The parties spend much time in their briefs addressing whether ECC 7.32.08 is “inconsistent with, more restrictive than, or exceed[s] the requirements of” RCW 9.41.270. Although the court’s decision above is determinative, this issue merits discussion as well.

RCW 9.41.270 is entitled “Weapons apparently capable of producing bodily harm – Unlawful carrying or handling – Penalty – Exceptions” and states in pertinent part:

“(1) It shall be unlawful for any person to carry… any 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…”

(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 such 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 force 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.”

Since the city ordinance does not contain the limitations set forth in RCW 9.41.270 (3), the language used in the ordinance regulates more people and more situations than the statute and thus the ordinance is inconsistent with, more restrictive than, and exceeds the requirements of state law. (NOTE FROM BOTTOM OF PAGE: “Note also RCW 9.41.270 restricts weapons “at a time and place” while ECC 7.32.08 restricts weapons “at a time or place.”)

The City argues that none of the limitations described in RCW 9.41.270(3)(a) - (e) apply to Appellant’s conduct, and since the core conduct prohibited by the ordinance is the same as the conduct regulated by RCW 9.41.270, the conviction should be affirmed. That argument, although factually correct in this case, does not aid the court in the determination of whether the language of the ordinance is inconsistent with the language of RCW 9.41.270. “RCW 9.41.270 was enacted to reform that situation in which counties, cities, and towns could each enact conflicting criminal codes regulating the general public’s possession of firearms.” Cherry v. Metro Seattle, 116 Wn.2d 794, 801 (1991) (emphasis added). The legislature sought “to eliminate a multiplicity of local laws relating to firearms and to advance uniformity in criminal firearms regulation.” Id. [NOTE FROM BOTTOM OF PAGE: ECC 7.32.08 was enacted prior to the current version of RCW 9.41.290, which appears to have been an emphatic legislative response to the court’s decision in Seattle v. Ballsmider, 71 Wn. App. 159 (1993).]

In summary, the legislature, through RCW 9.41.290, has limited the scope of municipal regulation of firearms to those situations described in RCW 9.41.300. Since ECC 7.32.08 attempts to regulate activities outside those narrowly defined areas, ECC 7.32.08 has been repealed by RCW 9.41.290. Even if the plain language of RCW 9.41.290 should be ignored to allow a city to pass an ordinance restricting the carrying of firearms, any such ordinance would still be required to be consistent on its face with the language of RCW 9.41.270. Since the language of ECC 7.32.08 is inconsistent with the language of RCW 9.41.270, the ordinance has been repealed.

Appellant’s conviction should be reversed and dismissed. The case shall be remanded for proceedings consistent with this decision.

DATED: December 14, 2005

JUDGE Scott Sparks

(NOTE FROM BOTTOM OF PAGE: Appellant must realize that had the State charged him under RCW 9.41.270 the conviction would most likely have been sustained. The witnesses in this case, two separate district court judges, a unanimous jury, and the City Prosecutor all agreed that Appellant’s choice to carry a firearm in his waistband with the hammer cocked “warranted alarm for the safety of other person.” If Appellant seeks to educate the public about the scope of the constitutional right to bear arms in the state of Washington, he may wish to utilize less provocative methods that do not entail the threat of criminal prosecution.)

FishOrMan's After Action Report: Judge Sparks put in a great deal of effort into attempting to understand the many complex gun laws, (which I thank him for, Thank YOU!) He took a slightly different take then expected in his decision -- ruling cities cannot make any law regulating the carrying of firearms, (unless it fits the narrowly defined exceptions chapter 9.41.300.) This was a surprise for me, but actually makes sense if the preemption law is read in a slightly different manner. It was also nice to see that even when reading the preemption law the way I had understood it to be, the city code would still have been repealed.

As for the judge's final footnote warning: My handgun will now always be carried outside the waistband and the hammer will be down, Hammer DOWN! Not a very smart way to carry a 1911, but the law is the law and I wouldn't want to scare any sheeple before I blow my leg off). Sorry, your honor. But if you knew 1911s you would understand the term, "cocked and locked," (And if an expert witness from a gun rights group had showed up, the hammer being back wouldn't be allowed to be used against a gun owner in court records where a precedent could have been set. Yet, an idiotic officer, paid by the state, is allowed to get on the stand and say that is an "alarming" way to carry a 1911. You know... because they are "gun experts" and all. Cluebat anyone?)

Seriously though, I was twice offered the "chance" for a plea deal in this case. Without the SAF making the slightest move to stand up for gun rights in my case, I came close to taking the deal. But, due to some very insightful information early on from fellow Washington gun rights activist, Lonnie Wilson, I turned this plea deal down TWICE. The information from Mr. Wilson caused me to look into the law I was charged with further and see it's many failures. With that belief, I put little effort into the actual trial. (In fact, the day I showed up for trial I was very surprised it even took place since discovery by the prosecution was delayed until just as I arrived that morning). So, I certainly didn't put a full effort into the case, heck, that is obvious, I fought it Pro se.

As for actually carrying a handgun again; I cannot think of anyway the state currently allows me to bear arms that doesn't bring at least some "threat of prosecution." Either I take that to mean the RIGHT to bear arms is dead; Or I willingly turn a right into a priviledge; Or I live my life threatened by the state. Really though... aren't we all?