Seattle declares martial law, bans weapons

"One police source told Examiner late this afternoon that if a citizen is walking down a street (inside the emergency proclamation zone) with a legally-concealed handgun, he shouldn’t have anything to worry about. Police are not stopping people and frisking them for weapons."

With all dual respect to the "police source" I don't give a rip what he thinks. The Exec Order allows for confiscation off *all* weapons. Merely *possessing* a firearm (even concealed) make you run afoul of the Mayor's order. If it wasn't their intent to restrict firearm possession, they could have addressed that with 30 seconds of extra effort by adding two sentences to the order.

Regardless of how nice the police decide to be in using their discretion in enforcing this order, it is illegal as written, and the Mayor's office should be held accountable. This is no different than Obama signing the NDAA act, but pinky swearing he'll never use the oppressive parts.

I do have to agree (based on my faux legal experience) that a .270 charge would stick. I'm not saying it's "right" or "fair"....... I'm just saying i think you'd get convicted....

jddssc121 said:

With all dual respect to the "police source" I don't give a rip what he thinks. The Exec Order allows for confiscation off *all* weapons. Merely *possessing* a firearm (even concealed) make you run afoul of the Mayor's order. If it wasn't their intent to restrict firearm possession, they could have addressed that with 30 seconds of extra effort by adding two sentences to the order. .

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Call'em up thats what I did and asked how they think they are going to get my firearm, that I would just say "here you are? wrong" the lady did not know what to say....duh, er, we are not going to take firearms ... I said "well, at least not mine"

The Civil Order issued by the mayor includes this, "Within this zone, all persons are prohibited from possessing, transporting, or transferring any weapon."

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His order does say "all persons".
Is there something in state law which exempts LEO from the control of various executive orders?
If not, the police officers in the zone will have some hefty fines to pay.
They're not supposed to be above the law.

So if i live within this so called zone and I'm carrying concealed and God forbid I get attacked with say a bat by a you name the moron, and I just happen to defend myself with my lawful/legal CCW and I do have a CPL, I'll get charged with a bogus preempted order by way of SMC? Are you kidding me?

Any Gray you're saying I could be charged and will get convicted for. 270?

This is Seattle, but its a far reach Gray......

None of this would stick. Yeah it might take some time to wind its way through the courts just like Chan

XD

This is one case where I will state, if you don't ABSOLUTELY! have to, stay out of the zone, for your safety...just remember Williams and Birk. OK?

Gray Peterson said:

Considering postings here and on other forums suggesting the ability, paraphrasing that they can sue Seattle for monetary damages, that statement stands. Open carrying in that zone, especially in a form of "antagonizing" the occupy movement, will either potentially result in a charge under the SMC, or a .270 charge, more likely the latter. The conviction WILL stick.

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As an initial matter, 42 USC 5207 is inapplicable here. Congress has specifically declined to pre-empt the firearms field and shares joint law-making with the states. However, Congress could attempt to pre-empt this field under the Commerce Clause because firearms move in interstate transport. However, to-date, they choose not to do so.

I do not believe that McGinn's order is lawful on the basis that it does not conform to SMC 10.02.025(c), which reads "An order pursuant to Section 10.02.020 shall contain the following: ... (C) A statement that the conditions of the order are designed to provide the least necessary restriction on those rights." I have read and reread the Amended Civil Order, but do not find the required language to that effect, nor any language that could be construed as such. Also, my read on SMC 10.02.020 leads me to the reasonable belief that it exceeds the scope of authority granted to cities, town, counties and municipalities by the State and are, therefore, preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality, both retrospectively and prospectively. See RCW 9.41.290.

Curiously, and due to a quirk in the law, if you are OC or CC and do not reach for the weapon, the U.S. and Washington Constitutions and statutes say that your conduct is lawful, while a long gun is not always afforded the same protections.

Do I think that you would be arrested and charged under .270 in this scenario? Damn likely. Although, I am not as convinced as are Mr. Workman and Mr. Peterson that the conviction, if any, would stick or survive appellate scrutiny if the firearm is holstered at all times and no reach for it occurs. But, why cause yourself the grief? It could easily take more than 2 years and mass $$ to ultimately prevail. And, unless the statute provides for it (none of these do), you won't get your fees out of the city when you probably prevail. If the prosecutors did charge you, I suggest that you would have a very strong defense that the statute and order (if, indeed, the order is lawful) are unconstitutional as applied to you and the facts of your case.

My $.02

rapgood said:

As an initial matter, 42 USC 5207 is inapplicable here. Congress has specifically declined to pre-empt the firearms field and shares joint law-making with the states. However, Congress could attempt to pre-empt this field under the Commerce Clause because firearms move in interstate transport. However, to-date, they choose not to do so.

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LOL...what are you talking about?

Seattle, like nearly every other municipality in this country, suckles from the federal teat, so 5207 very much applies:

Sec. 706. Firearms Policies (42 U.S.C. 5207)*
(a) Prohibition on Confiscation of Firearms - No officer or employee of the United
States (including any member of the uniformed services), or person operating
pursuant to or under color of Federal law, or receiving Federal funds, or under
control of any Federal official, or providing services to such an officer,

(1) temporarily or permanently seize, or authorize seizure of, any firearm the
possession of which is not prohibited under Federal, State, or local law,
other than for forfeiture in compliance with Federal law or as evidence in a
criminal investigation;

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Gray Peterson said:

Considering postings here and on other forums suggesting the ability, paraphrasing that they can sue Seattle for monetary damages, that statement stands. Open carrying in that zone, especially in a form of "antagonizing" the occupy movement, will either potentially result in a charge under the SMC, or a .270 charge, more likely the latter. The conviction WILL stick.

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Again you are in no position to command people not to do something just suggest they don't.

You are assuming it will stick. I am not going to be the test case.

The assumption it will stick is also due to the sad nature of our statist court system.

Just read this thread cite please where anyone said they can sue before your statement?

rapgood said:

As an initial matter, 42 USC 5207 is inapplicable here. Congress has specifically declined to pre-empt the firearms field and shares joint law-making with the states. However, Congress could attempt to pre-empt this field under the Commerce Clause because firearms move in interstate transport. However, to-date, they choose not to do so.

I do not believe that McGinn's order is lawful on the basis that it does not conform to SMC 10.02.025(c), which reads "An order pursuant to Section 10.02.020 shall contain the following: ... (C) A statement that the conditions of the order are designed to provide the least necessary restriction on those rights." I have read and reread the Amended Civil Order, but do not find the required language to that effect, nor any language that could be construed as such. Also, my read on SMC 10.02.020 leads me to the reasonable belief that it exceeds the scope of authority granted to cities, town, counties and municipalities by the State and are, therefore, preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality, both retrospectively and prospectively. See RCW 9.41.290.

Curiously, and due to a quirk in the law, if you are OC or CC and do not reach for the weapon, the U.S. and Washington Constitutions and statutes say that your conduct is lawful, while a long gun is not always afforded the same protections.

Do I think that you would be arrested and charged under .270 in this scenario? Damn likely. Although, I am not as convinced as are Mr. Workman and Mr. Peterson that the conviction, if any, would stick or survive appellate scrutiny if the firearm is holstered at all times and no reach for it occurs. But, why cause yourself the grief? It could easily take more than 2 years and mass $$ to ultimately prevail. And, unless the statute provides for it (none of these do), you won't get your fees out of the city when you probably prevail. If the prosecutors did charge you, I suggest that you would have a very strong defense that the statute and order (if, indeed, the order is lawful) are unconstitutional as applied to you and the facts of your case.

My $.02

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+1

sudden valley gunner said:

Again you are in no position to command people not to do something just suggest they don't.

You are assuming it will stick. I am not going to be the test case.

The assumption it will stick is also due to the sad nature of our statist court system.

Just read this thread cite please where anyone said they can sue before your statement?

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Private PM's & other forums. Robert, why don't you do something other than crawling all over my ass & looking for "gotchas" to knife me in the back with?

"you are assuming it will stick" makes me sound like I'm wrong, & then you go off with "sad nature of our statist court system", like I'm right. Which is it?

There is a reason I have not seen the inside of jail cell.

ManInBlack said:

LOL...what are you talking about?

Seattle, like nearly every other municipality in this country, suckles from the federal teat, so 5207 very much applies:

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I respectfully disagree. 42 USC § 5207(a) was an additional chapter in TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 68. DISASTER RELIEF and must be read in that context. While better legal minds than mine may argue otherwise, you cannot pluck out a single, qualifying subordinate clause and apply it with broad strokes. 5207 restricts the entities who are subject to the statute as those who are "acting in support of relief from a major disaster or emergency." What McGinn deems a "civil emergency" likely wouldn't pass judicial scrutiny with respect to an "emergency" as is envisioned by Title 42, which defines "emergency" as:

(1) Emergency. "Emergency" means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States. 42 USCS § 5122.

It gets even more restrictive about "major disasters" defining them as:

(2) Major disaster. "Major disaster" means any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

I'm pretty sure that McGinn is not the President of the United States. As such, his designation of an "emergency" doesn't subject him to the prohibitions and penalties found in 42 USC § 5207(a). So, while you correctly point out that 42 USC § 5207(a) proscribes certain conduct by those who receive Federal funds, it proscribes that behavior only in a narrow and well-defined situation.

However, there are several other legal theories that might prove fruitful (e.g., alleging violations of U.S. Const., Amend. IV & XIV, & Wash. Const. Art. I, Section 24).

Gray Peterson said:

Private PM's & other forums. Robert, why don't you do something other than crawling all over my ass & looking for "gotchas" to knife me in the back with?

"you are assuming it will stick" makes me sound like I'm wrong, & then you go off with "sad nature of our statist court system", like I'm right. Which is it?

There is a reason I have not seen the inside of jail cell.

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I'm not crawling all over your ass looking for gotchas I am not "knifing you in the back". Don't be so sensitive. Your post said here so I looked for it here, thanks for the clarification that it was in PM's. I made a simple statement that you suggest/reccommend rather than command. Making a command makes it look like you think you are superior to others.

Because you are assuming it will stick, so am I due to the sad nature of our statist courts. But neither one of as knows for a hundred percent it would. Not that I am recommending anyone be a test case.

I think Rapgood's post is spot on.

P.S. would you be willing to see an inside of a jail to fight for your rights? I would depending on circumstances.

sudden valley gunner said:

I think Rapgood's post is spot on.

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Thanks!

sudden valley gunner said:

P.S. would you be willing to see an inside of a jail to fight for your rights? I would depending on circumstances.

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Glad to hear you would! I have. :lol:

rapgood said:

What McGinn deems a "civil emergency" likely wouldn't pass judicial scrutiny with respect to an "emergency" as is envisioned by Title 42, which defines "emergency" as:

(1) Emergency. "Emergency" means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States. 42 USCS § 5122.

I'm pretty sure that McGinn is not the President of the United States. As such, his designation of an "emergency" doesn't subject him to the prohibitions and penalties found in 42 USC § 5207(a). So, while you correctly point out that 42 USC § 5207(a) proscribes certain conduct by those who receive Federal funds, it proscribes that behavior only in a narrow and well-defined situation.

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Do you honestly think that the city of Seattle used/is using no federal assistance in this "emergency?" Even if it's only Homeland Security grants for their thug gear, the city of Seattle is using federal funds, and the disbursement of all federal funds is approved by the president. Since the funds were given to the city of Seattle with no bar on using them during an emergency, the president must have made the determination that such federal assistance was needed to supplement state and local efforts.

Of course, none of this matters because the government is in the business of destroying the rule of law (for itself, at least), not upholding it.

Gray Peterson said:

Private PM's & other forums. Robert, why don't you do something other than crawling all over my ass & looking for "gotchas" to knife me in the back with?

"you are assuming it will stick" makes me sound like I'm wrong, & then you go off with "sad nature of our statist court system", like I'm right. Which is it?

There is a reason I have not seen the inside of jail cell.

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"Knife me in the back."

You, sir, are Oscar-worthy. It has been awhile since I have seen such dramatics...



Just because folks may disagree with you does not mean they are attacking you. Lower the sensitivity of your threat radar.

NavyLCDR said:

How so?

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 and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

Even if we go with "under circumstances" and "at a time and place" elements are met, exactly how would a lawfully carried holstered handgun meet the element of "in a manner" required to be guilty of violating .270? Just because a Seattle Mayor says the possession and carrying of a firearm in a certain location is illegal does not make it illegal. I thought we had that one settled...

When the Seattle gun ban in parks and rec centers was in effect, would you say that an openly carried handgun in a holster would violate .270 then in a park or rec center? What makes this different than the park and rec center ban?

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Your argument is strengthened by Washington case law ruling on that very question.

A reasonable person standard is incorporated into the phrase "warrants alarm.” State v. Spencer, 75 Wn. App. 118, 126 (1994).

RCW 9.41.270 must be narrowly construed such that the phrase “warrants alarm for the safety of others” applies only to conduct that poses a threat to others, thus giving the phrase a narrow and definite focus. State v. Maciolek, 101 Wn.2d 259, 268 (Wash. 1984).

ManInBlack said:

Do you honestly think that the city of Seattle used/is using no federal assistance in this "emergency?" Even if it's only Homeland Security grants for their thug gear, the city of Seattle is using federal funds, and the disbursement of all federal funds is approved by the president. Since the funds were given to the city of Seattle with no bar on using them during an emergency, the president must have made the determination that such federal assistance was needed to supplement state and local efforts.

Of course, none of this matters because the government is in the business of destroying the rule of law (for itself, at least), not upholding it.

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Sorry. Your argument is just too much of a stretch. Let's just agree to disagree.

Gary, I could see Seattle trying to get a charge of some kind to stick. However, I see no way it would hold through to conviction. Any charge due to this civil emergency in regards to possessing a firearm would most likely, in my opinion, be beat on several fronts.

a) The SMC 10.02.020 that gives the mayor the authority to enact a proclamation of a civil emergency, explicitly states in subsection (I) that firearms can be restricted is in direct violation of pre-emption RCW 9.41.290 as the city does not have the authority to restrict carry in such a manner. This therefore per the last sentence of pre-emption repeals the ordinance resulting in 10.02.020 as being void. In the end, this could make the whole proclamation invalid.

SMC 10.02.020(I) said:

An order prohibiting the carrying or possession of a firearm or any
instrument which is capable of producing bodily harm and which is carried or
possessed with intent to use the same to cause such harm, provided that any
such order shall not apply to peace officers or military personnel engaged
in the performance of their official duties;

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RCW 9.41.290 said:

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.

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b) The unlawful carrying statue RCW 9.41.270 has existing case law that open carrying of a firearm in of by itself is not sufficient for RAS. While the SPD may believe they have standing, having a civil emergency (if it withstands pre-emption), they have a hell of a fight. In my opinion, this would only at the very most provide RAS to id if that. All conditions of the statue still have to be fulfilled for a charge. With the existing case law, the burden on the city to prove the intent and using a SMC that is likely repealed due to pre-emption I don't even know how this would even be close to possible for a conviction.

RCW 9.41.270(1) said:

in a manner [No: per case law], under circumstances [Maybe: civil emergency], and at a time and place that either manifests an intent to intimidate another [Likely No: PD would have to prove intent] or that warrants alarm for the safety of other persons [Maybe].

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c) We have the possibility that Federal law does not allow confiscation of firearms during a declared emergency. While I would not stand on this as my only item, I would throw it into the mix.

d) There is constitutional rights that could be challenged


While I think, unless absolutely required, I would not go into seattle where havoc is on going. However if required, you can bet your ass Ill be carrying and in the open. Personally, I feel confertable with the review of the laws that I don't think a conviction of any SMC and RCW 9.41.270 would be possible and if I needed to go down to that zone right now to get a family member I would do so like normal.

ManInBlack said:

"Knife me in the back."

You, sir, are Oscar-worthy. It has been awhile since I have seen such dramatics...

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Histrionics.
Hyperbole.

And remember, while Workman's article seems like it was written by a LEO/Mayor apologists, admin takes a dim view of posts critical of him. Just passing on the warning.

Nice to see you guys don't need me for a thread to go hardball