CHAN v. CITY OF SEATTLE No. 65123-4-I.
265 P.3d 169 (2011)
164 Wash.App. 549
Winnie CHAN, an individual; Robert Kennar, an individual; Raymond Carter, an individual; Gray Peterson, an individual; Gary G. Goedecke, an individual, Respondents, The Second Amendment Foundation, Inc., a Washington non-profit corporation; Citizens Committee for the Right to Keep and Bear Arms, a Washington non-profit corporation; Washington Arms Collectors, Inc., a Washington non-profit corporation; and National Rifle Association of America, Inc., a New York non-profit association, Plaintiffs, v. CITY OF SEATTLE, a municipality; Michael McGinn, Mayor of the City of Seattle, in his official capacity; Seattle Department of Parks and Recreation, a department of the City of Seattle; and Timothy A. GALLAGHER, Superintendent, in his official capacity, Appellants, Gregory J. Nickels, (former) Mayor of the City of Seattle, in his official capacity, Defendant.
Court of Appeals of Washington, Division 1.
October 31, 2011.
George Greer , Daniel Dunne , David S. Keenan , Orrick Herrington & Sutcliffe LLP, Seattle, WA, for Appellants.
Peter S. Holmes , Gary E. Kreese , City of Seattle Attorney's Office, Steven W. Fogg , Molly A. Malouf , Corr Cronin Michelson Baumgarder & Pre, Seattle, WA, for Respondents.
¶ 1 Except as authorized in RCW 9.41.290, the legislature expressly preempts municipalities from enacting firearm regulations prohibiting the possession of firearms. The City of Seattle appeals the trial court's determination that RCW 9.41.290 preempts the Seattle Department of Parks and Recreation from enacting a rule that prohibits the possession of firearms at designated city parks and park facilities open to the public. We affirm.
¶ 2 In 1935, the legislature adopted laws regulating the possession and use of firearms based on the uniform firearms act approved by the National Conference of Commissioners on Uniform State Laws and Proceedings. Laws of 1935, ch. 172; Cherry v. Mun. of Metro. Seattle, 116 Wn.2d 794, 800, 808 P.2d 746 (1991).
¶ 3 In 1983, the legislature enacted chapter 9.41 RCW to prevent municipalities from adopting inconsistent laws and ordinances regulating firearms. Laws of 1983, ch. 232, § 12; Cherry, 116 Wash.2d at 801, 808 P.2d 746. Former RCW 9.41.290 provides, in pertinent part:
Laws of 1983, ch. 232, § 12.
¶ 4 In 1985, the legislature amended former RCW 9.41.290 to preempt municipalities from regulating firearms. Laws of 1985, ch. 428, § 1. Former RCW 9.41.290 states:
Laws of 1985, ch. 428, § 1. The legislature also adopted former RCW 9.41.300. Laws of 1985, ch. 428, § 2. Former RCW 9.41.300 prohibits the possession of firearms in certain places and expressly authorizes municipalities to restrict the discharge and possession of firearms. Former RCW 9.41.300(2) also states that "[n]otwithstanding RCW 9.41.290, cities, towns, counties, and other municipalities may enact laws and ordinances" restricting the possession and discharge of firearms in certain places. Laws of 1985, ch. 428, § 2(2).
¶ 5 In 1994, the legislature amended former RCW 9.41.290 and former RCW 9.41.300 to preempt municipalities from regulating the possession of firearms unless "specifically authorized by state law, as in RCW 9.41.300." Laws of 1994, 1st Spec. Sess., ch. 7, § 428. The legislature repealed the language, "Notwithstanding RCW 9.41.290", to make clear its intent to fully occupy and preempt municipalities from regulating firearm possession. Laws of 1994, 1st Spec. Sess., ch. 7, § 429(2).
¶ 6 On June 6, 2008, the mayor of the City of Seattle issued an executive order directing departments to review "all rules, policies, and leases for all City of Seattle properties and amend such rules, policies, and leases in an effort to develop a `gun-free' policy for City of Seattle properties."
¶ 7 On October 13, the Washington State Attorney General issued a formal opinion (AGO) on the question of whether a city has "the authority to enact a local law that prohibits possession of firearms on city property or in city-owned facilities." 2008 Op. Att'y Gen. No. 8, at 1.
2008 Op. Att'y Gen. No. 8, at 1 (quoting RCW 9.41.290), 11.
¶ 8 On October 14, 2009, the City of Seattle Department of Parks and Recreation (Department) issued a "Rule/Policy" that prohibits the possession of firearms "as a Condition of Entry Into or Use of Designated Parks Department Facilities at Which Children and Youth are Likely to be Present" (the Firearms Rule).
¶ 9 The Firearms Rule identifies designated park facilities subject to the Rule:
¶ 10 The Firearms Rule also addresses posting signs prohibiting possession of firearms at designated park facilities prohibiting possession of firearms. Section 5.2 provides:
¶ 11 Section 6.0, "Withdrawal of Permission to Remain at a Particular Designated Facility," states that the Firearms Rule does not include any "Criminal or Civil Penalties." However, Section 6.0 also states that violation of the Firearms Rule "shall be enforced in the same manner and pursuant to the same ordinances and statutes as similar conditions could be enforced by other public or private property owners." Section 6.0 of the Firearms Rule states:
¶ 12 On October 14, the mayor announced the adoption of the Firearms Rule. The press release states that "after signs are posted" notifying the public of the Firearms Rule, possession of firearms is prohibited at designated parks and park facilities. According to the press release, violators of the Firearms Rule are subject to citation or arrest for criminal trespass.
¶ 13 Winnie Chan, Robert Kennar, Raymond Carter, Gray Peterson, and Gary Goedecke filed a lawsuit challenging adoption of the Firearms Rule against the City of Seattle, City of Seattle Mayor Greg Nickels, the Department, and the superintendent of the Department (collectively City) and seeking declaratory and injunctive relief.
¶ 14 On cross motions for summary judgment, the court ruled that RCW 9.41.290 preempts the Firearms Rule.
¶ 15 The City contends RCW 9.41.290 does not preempt the Firearms Rule because (1) the City is acting in its proprietary capacity, (2) the Firearms Rule is not a criminal regulation, and (3) the Firearms Rule was not adopted as a law or ordinance.
¶ 16 Under article XI, section 11 of the Washington State Constitution, a city has the authority to "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." A statute preempts regulation of "the same subject if the statute occupies the field." Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038 (2010). A statute preempts the field if the legislature expressly states its intent to do so or such intent is necessarily implied. Lawson, 168 Wash.2d at 679, 230 P.3d 1038.
¶ 17 The meaning of a statute is a question of law. We review statutes and questions of law de novo. Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001). Our fundamental objective in construing a statute
¶ 18 Except as otherwise authorized, RCW 9.41.290 preempts firearms regulation. RCW 9.41.290 states:
¶ 19 RCW 9.41.300 prohibits the possession of weapons in certain places, and explicitly authorizes municipalities to enact laws and ordinances that restrict the discharge of firearms, prohibit possession of firearms at a stadium or convention center owned by the city, and restricts the locations where firearms may be sold. RCW 9.41.300 states, in pertinent part:
¶ 20 The plain language of RCW 9.41.290 preempts municipalities from enacting laws and ordinances regulating the possession of firearms. The statute states that the "state of Washington hereby fully occupies and preempts the entire field of firearm regulation within the boundaries of the state" and broadly defines firearms regulations to include registration, licensing, possession, purchase, sale, and discharge. RCW 9.41.290.
¶ 21 RCW 9.41.290 also explicitly states that local laws that are "inconsistent with, more restrictive than, or exceed the requirements of state law" are "preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality."
¶ 22 We hold that under the plain language of RCW 9.41.290 and RCW 9.41.300, the City's attempt to regulate the possession of firearms at designated park areas and park facilities open to the public by adopting the Firearms Rule is preempted by state law.
¶ 23 In an effort to avoid the effect of the state law preempting the possession and regulation of firearms, the City relies on two supreme court cases, Cherry and Pacific Northwest Shooting Park Ass'n v. City of Sequim (PNSPA), 158 Wn.2d 342, 144 P.3d 276 (2006), to argue that because it is acting in its proprietary capacity, RCW 9.41.290 does not apply. Neither Cherry nor PNSPA supports the argument that the City has the authority to regulate the possession of firearms at designated park areas and park facilities open to the public.
¶ 24 In Cherry, the court addressed whether RCW 9.41.290 preempts a municipal employer from adopting a policy prohibiting employees from carrying concealed weapons while on the job. Because the language of RCW 9.41.290 did not clearly "invalidate the authority of municipal employers to regulate or otherwise prohibit a municipal employee's possession of firearms while on the job," the court held that the statute "does not address internal employment rules limiting on-duty possession of firearms by public employees in the workplace." Cherry, 116 Wash.2d at 798, 808 P.2d 746. After examining the legislative history, the court states that legislature enacted RCW 9.41.290:
¶ 25 In PNSPA, the Pacific Northwest Shooting Park Association applied for a temporary use permit to hold a gun show at the city's convention center. The city issued the permit with a number of conditions that prohibited unlicensed dealers from purchasing, acquiring, or selling firearms. PNSPA, 158 Wash.2d at 346-47, 144 P.3d 276. PNSPA sued the city alleging tortious interference with a contractual relationship and violation of RCW 9.41.290 and RCW 9.41.300 by imposing unauthorized conditions on gun sales by a private party. PNSPA, 158 Wash.2d at 347-48, 144 P.3d 276.
¶ 26 The court held that the city could impose the conditions because RCW 9.41.300(2)(b) expressly states that cities can restrict the possession of firearms in a convention center. PNSPA, 158 Wash.2d at 355, 144 P.3d 276.
PNSPA, 158 Wash.2d at 357, 144 P.3d 276. However, in reaching the conclusion that the city was acting in its proprietary capacity by imposing conditions on the sales of firearms, the court emphasizes that "[t]he 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." PNSPA, 158 Wash.2d at 357, 144 P.3d 276.
¶ 27 Relying heavily on PNSPA, the City argues that because it is acting in its proprietary capacity, it has the authority to adopt the Firearms Rule. But here, unlike in PNSPA, RCW 9.41.300 does not allow the City to regulate firearms in parks and park facilities open to the public, and the City is not acting as "`the proprietor of a business enterprise'" for private advantage in adopting the Firearms Rule. PNSPA, 158 Wash.2d
¶ 28 Next, the City argues that RCW 9.41.290 does not apply because the Firearms Rule is not a criminal firearms regulation. The City cites to the court's determination in Cherry that the intent of the legislature in adopting RCW 9.41.290 was to eliminate conflicting criminal firearm laws. The City also relies on the language of the Firearms Rule that states: "No Criminal or Civil Penalties. This policy/rule does not include any criminal or civil penalties."
¶ 29 The City also contends that RCW 9.41.290 does not apply because the statute only precludes a municipality from adopting "laws and ordinances" regulating the possession of firearms, and not a rule or policy. But the City cites no support for the proposition that it can regulate the possession of firearms through rule or policy when it cannot do so by law or ordinance.
¶ 30 In the alternative, the City asserts the court erred in granting injunctive relief. We review the decision to grant injunctive relief on summary judgment de novo. Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
¶ 31 To obtain injunctive relief, the plaintiffs had the burden of showing: (1) a clear legal or equitable right, (2) a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of either result in or will result in actual and substantial injury. Tyler Pipe Indus., Inc. v. Dep't of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982). All three criteria must be met. Wash. Fed'n of State Emps., Council 28, AFL-CIO v. State, 99 Wn.2d 878, 888, 665 P.2d 1337 (1983). Because injunctive relief is equitable in nature, the criteria establishing injunctive relief should also include balancing the "relative interests of the parties and, if appropriate, the interests of the public." Tyler Pipe, 96 Wash.2d at 792, 638 P.2d 1213.
¶ 32 The City argues the plaintiffs have not established either a clear legal right under
¶ 33 There is no dispute that the plaintiffs possess valid concealed pistol permits. Unless otherwise prohibited by state law, a person with a valid permit is allowed to carry a concealed pistol "for the purposes of protection or while engaged in business, sport, or while traveling." RCW 9.41.070. There is also no dispute that the plaintiffs were not allowed to possess firearms at designated parks or park facilities open to the public. The record shows that the court took into consideration the express language of state law and the interests of the parties. The court is not required to take into account the interests of the public. Tyler Pipe, 96 Wash.2d at 792, 638 P.2d 1213. The trial court did not err in entering an order granting injunctive relief by enjoining enforcement of the Firearms Rule and requiring the City to remove the signs prohibiting the public from possessing firearms at designated park facilities. See Ronken v. Bd. of County Comm'rs of Snohomish County, 89 Wn.2d 304, 311, 572 P.2d 1 (1977).
¶ 34 In sum, we hold that RCW 9.41.290 preempts the Firearms Rule. Except as expressly authorized by the legislature, municipalities are prohibited from regulating the possession of firearms at city-owned park facilities open to the public. Whether to amend RCW 9.41.300 to prohibit possession of firearms at city-owned parks and park facilities frequented by children and youth is a question for the legislature to decide.
¶ 35 We affirm.
WE CONCUR: LAU and COX, JJ.
- No Cases Found