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Thread: Lemmo or Rapgood (lawyers especially, or LE) question

  1. #1
    Regular Member hermannr's Avatar
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    Lemmo or Rapgood (lawyers especially, or LE) question

    Our local rural public hospital district hospital has recently gone through an expansion, and now has a new administration. This was never a problem before, but the new "CEO" as they like to call her...(70.44.060 does not provide for a "CEO" so I don't know what her real position is....) comes from Wenatchee Valley Medical (a private outfit) and she brought he gunbuster "Weapons free facility" signs with her (at least that is who I am blaming). I sent a letter to the board chair for the hospital district pointing out that these "gunbuster" signs were not lawful and needed to be removed. I have not herad anything back from the board chair.

    Now, I have a question: IF I can talk the local CoP into this...can I have LE give them a ticket, and cite RCW 9.41.290 as the violation????

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    Regular Member EMNofSeattle's Avatar
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    Man the Sheriff/police Chief is going to LOVE to get that call......

    I hope your cop buddy has a strong union.... And always wanted to be showcased on King5, Komo4, the CBC, and all the major news networks...

    I'm not an attorney or a cop, but it would seem so. RCW 9.41.810 seems to provide that violation of all offenses unless otherwise noted of 9.41 are a misdemeanor.

    But I really want to know what Rapgood thinks about this!
    Last edited by EMNofSeattle; 11-18-2012 at 02:34 PM.
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    Opt-Out Members BigDave's Avatar
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    I do not know of any law prohibiting them posting any signage but then to have the weight of law is the issue.

    So I guess the question might be is the signage of no weapons enough to meet the restrictions of trespass? I don't believe it does, though I am not an attorney.

    RCW 9A.52.090 Criminal trespass Defenses.
    In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:
    (1) A building involved in an offense under RCW 9A.52.070 was abandoned; or
    (2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or
    (3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain; or
    (4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.

    [2011 c 336 374; 1986 c 219 2; 1975 1st ex.s. c 260 9A.52.090.]
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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by BigDave View Post
    I do not know of any law prohibiting them posting any signage but then to have the weight of law is the issue.

    So I guess the question might be is the signage of no weapons enough to meet the restrictions of trespass? I don't believe it does, though I am not an attorney.

    RCW 9A.52.090 Criminal trespass Defenses.
    In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:
    (1) A building involved in an offense under RCW 9A.52.070 was abandoned; or
    (2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or
    (3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain; or
    (4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.

    [2011 c 336 374; 1986 c 219 2; 1975 1st ex.s. c 260 9A.52.090.]
    I thought the sign issue has been handled on this site.

    I thought, like you, the sign has no legal effect.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Opt-Out Members BigDave's Avatar
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    Quote Originally Posted by BigDave View Post
    I do not know of any law prohibiting them posting any signage but then to have the weight of law is the issue.

    So I guess the question might be is the signage of no weapons enough to meet the restrictions of trespass? I don't believe it does, though I am not an attorney.

    RCW 9A.52.090 Criminal trespass Defenses.
    In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that:
    (1) A building involved in an offense under RCW 9A.52.070 was abandoned; or
    (2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or
    (3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain; or
    (4) The actor was attempting to serve legal process which includes any document required or allowed to be served upon persons or property, by any statute, rule, ordinance, regulation, or court order, excluding delivery by the mails of the United States. This defense applies only if the actor did not enter into a private residence or other building not open to the public and the entry onto the premises was reasonable and necessary for service of the legal process.

    [2011 c 336 374; 1986 c 219 2; 1975 1st ex.s. c 260 9A.52.090.]
    Quote Originally Posted by Freedom1Man View Post
    I thought the sign issue has been handled on this site.

    I thought, like you, the sign has no legal effect.
    I do not want to take away from the OP.
    The issue I bring is some like to cite as I have in the past as well, that it could become a trespass issue though if open to the public and complied with all lawful conditions accessing the premises then there would be no issue as to trespass.

    I feel the OP is also citing that since it is a public entity they cannot use a trespass issue on a lawful behavior.
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    Regular Member hermannr's Avatar
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    Quote Originally Posted by BigDave View Post
    I do not want to take away from the OP.
    The issue I bring is some like to cite as I have in the past as well, that it could become a trespass issue though if open to the public and complied with all lawful conditions accessing the premises then there would be no issue as to trespass.

    I feel the OP is also citing that since it is a public entity they cannot use a trespass issue on a lawful behavior.
    The way I read the law, RCW 9.41.290 specifically precludes public entities to post a sign like this, have a policy that requires a sign like this, and to attempt to enforce such a policy.

    ENM, RCW 9.41.810 was what I was talking about, but .290 is what is being violated. (that is...IMHO)

    I have an email to a lawyer I know here in Okanogan, just to see what he thinks...don't know if he will answer me on this one...but if there is an obvious violation of state law, and you point it out to LE...if they are doing their job, a citation should be issued...NO? Sounds a lot simpler than trying to take the hospital district to court.

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    Who owns the Hospital, is it private or public ownership?

    IMHO the sheriff will not writ them a ticket for violating RCW9.41,290, because there is no penalty written onto RCW 9.41.290 for violating RCW 9.412.290.

    Now there is an RCW that covers unlawful behavior by a public official but I can recall what code number it is at the moment.
    Last edited by Jeff Hayes; 11-18-2012 at 08:10 PM.

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    Opt-Out Members BigDave's Avatar
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    Quote Originally Posted by hermannr View Post
    The way I read the law, RCW 9.41.290 specifically precludes public entities to post a sign like this, have a policy that requires a sign like this, and to attempt to enforce such a policy.

    ENM, RCW 9.41.810 was what I was talking about, but .290 is what is being violated. (that is...IMHO)

    I have an email to a lawyer I know here in Okanogan, just to see what he thinks...don't know if he will answer me on this one...but if there is an obvious violation of state law, and you point it out to LE...if they are doing their job, a citation should be issued...NO? Sounds a lot simpler than trying to take the hospital district to court.
    I do not read RCW 9.41.810 the same as you, if found in violation of this chapter is at minimum a misdemeanor unless otherwise noted as a gross misdemeanor or felony.

    RCW 9.41.810 Penalty.

    Any violation of any provision of this chapter, except as otherwise provided, shall be a misdemeanor and punishable accordingly.
    [1984 c 258 312; 1983 c 232 11; 1983 c 3 7; 1961 c 124 12; 1935 c 172 16; RRS 2516-16. Formerly RCW 9.41.160.]
    Last edited by BigDave; 11-18-2012 at 08:12 PM.
    • Being prepared is to prepare, this is our responsibility.
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    • IANAL, all information I present is for your review, do your own homework.

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    Rcw 9a.80.010

    Official misconduct.

    (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:

    (a) He or she intentionally commits an unauthorized act under color of law; or

    (b) He or she intentionally refrains from performing a duty imposed upon him or her by law.

    (2) Official misconduct is a gross misdemeanor.


    [2011 c 336 408; 1975-'76 2nd ex.s. c 38 17; 1975 1st ex.s. c 260 9A.80.010 .]

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    Who owns the hospital now? I know when I was born there, back in '55, it was the Sisters who ran St. Martin's Hospital, but that was back in the dark ages. (Wenatchee Valley North, maybe?)

    If it's a private institution, I'd think they can have whatever rules they want to have. If that is the case, just conceal it and let it go until you get an answer from whatever powers rule.

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    Regular Member hermannr's Avatar
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    Quote Originally Posted by oneeyeross View Post
    Who owns the hospital now? I know when I was born there, back in '55, it was the Sisters who ran St. Martin's Hospital, but that was back in the dark ages. (Wenatchee Valley North, maybe?)

    If it's a private institution, I'd think they can have whatever rules they want to have. If that is the case, just conceal it and let it go until you get an answer from whatever powers rule.
    Yes, it is the "same" hospital as used to be St Martin's, or should I say, St Martin's was where it originated... It doesn't look anything like the old St. Martins hospital though, expecially after this latest building program.

    It is now a "rural hospital district" called Okanogan hospital district #4, and is organized under RCW 70.44 (It is a PUBLIC hospital, paid for by property tax revenue, or should I say it is a County Owned, Municipal Corporation. Still, it's paid for by property taxes)
    Last edited by hermannr; 11-18-2012 at 10:14 PM.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Orphan View Post
    Official misconduct.

    (1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:

    (a) He or she intentionally commits an unauthorized act under color of law; or

    (b) He or she intentionally refrains from performing a duty imposed upon him or her by law.

    (2) Official misconduct is a gross misdemeanor.


    [2011 c 336 408; 1975-'76 2nd ex.s. c 38 17; 1975 1st ex.s. c 260 9A.80.010 .]

    Yep but like you said early trying to get cops to write their fellow government workers a ticket is practically impossible.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member Ajetpilot's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Yep but like you said early trying to get cops to write their fellow government workers a ticket is practically impossible.
    Then, trying to get a prosecutor to do something with the citation would be even harder.

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    Regular Member Dave_pro2a's Avatar
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    Wait a second, hold the phone.

    Are you guys implying that there might be a problem with the fact police, DAs and judges all work for the same team and therefore won't apply or enforce the law against their own?

    That's just crazy talk.
    Last edited by Dave_pro2a; 11-19-2012 at 12:34 PM.

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by NavyLCDR View Post
    Could a private citizen file in court for a cease and desist order against the hospital district?
    In civil court if they have standing to bring suit I do believe.

    a family member was a security guard at Harborview Medical Center in Seattle, and they banned firearms in the hospital and would have the police trespass anyone who didn't surrender their gun to security at entrance. Technically state law only bans firearms in mental hospitals, but they had some philisophy that said because part of the hospitals has a psyche ward they needed to ban guns in ALL of the hospital. And then their other "escape valve" was they're operated by the University of WA (even though the building itself belongs to King County) so somehow they fell under the WAC that allows universities to ban firearms.... And police trespassed people all the time (but they wouldn't arrest them if they had no license, because arresting patients might lead to them not seeking medical care, yeah HMC is really screwed up) but hey half of harborview's clientelle is probably not smart enough to challenge their citations under preemption anyway.

    I don't believe Washington allows private prosecution however....
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    Regular Member Difdi's Avatar
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    Two thoughts:

    Can you be trespassed from a public hospital for violating a rule that is illegal under state preemption? If not, that leads us to thought #2:

    Citizen's arrest isn't normally permitted for misdemeanors, but some misdemeanors (such as assault) breach the peace, which does permit a citizen's arrest. If someone breaks the illegal rule and is subject to an assault as hospital staff (or police) attempt to enforce the unlawful order, can a citizen's arrest be made for the resulting breach of the peace?

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    Regular Member rapgood's Avatar
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    Assuming that the hospital is a state owned institution and is not a mental health facility and without researching the nature of the institution, the forbidding of carry of firearms is likely unenforceable due to state preemption. I do not interpret the criminal provision in .810 as applicable. The way I read .290 leads me to believe that it qualifies as an "except as otherwise provided" exclusion (it doesn't say "you can't do this" -- rather, it says any attempt by a state entity is invalid and such local codes and ordinances are preempted and repealed from the get-go). I do not think that the display of signs prohibiting firearms is a criminal violation. Even if it is, courts are likely to merely instruct the institution to obscure the prohibiting language or take down the sign, not convict them of a crime.

    If it is, after all, a violation of the law (I really don't think it is) and the prosecuting attorney declines to prosecute, the criminal rules for courts of limited jurisdiction (municipal courts and county district courts -- where most misdemeanors are prosecuted) allow citizens to file criminal complaints when prosecuting attorneys decline to do so. CrRLJ 2.1(c).

    Personally, I vigorously discourage citizens from filing criminal charges pursuant to CrRLJ 2.1(c). The consequences for an unsuccessful prosecution can be very expensive.
    Rev. Robert Apgood, Esq.

    A right cannot be lost by exercising it. McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 3021, 177 L. Ed. 2d 894 (2010) (citing Near v. Minn., 283 U.S. 697 (1931)).

    Although IAAL, anything I say here is not legal advice. No conversations we may have privately or otherwise in this forum constitute the formation of an attorney-client relationship, and are not intended to do so.

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    Regular Member hermannr's Avatar
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    Quote Originally Posted by rapgood View Post
    Assuming that the hospital is a state owned institution and is not a mental health facility and without researching the nature of the institution, the forbidding of carry of firearms is likely unenforceable due to state preemption. I do not interpret the criminal provision in .810 as applicable. The way I read .290 leads me to believe that it qualifies as an "except as otherwise provided" exclusion (it doesn't say "you can't do this" -- rather, it says any attempt by a state entity is invalid and such local codes and ordinances are preempted and repealed from the get-go). I do not think that the display of signs prohibiting firearms is a criminal violation. Even if it is, courts are likely to merely instruct the institution to obscure the prohibiting language or take down the sign, not convict them of a crime.

    If it is, after all, a violation of the law (I really don't think it is) and the prosecuting attorney declines to prosecute, the criminal rules for courts of limited jurisdiction (municipal courts and county district courts -- where most misdemeanors are prosecuted) allow citizens to file criminal complaints when prosecuting attorneys decline to do so. CrRLJ 2.1(c).

    Personally, I vigorously discourage citizens from filing criminal charges pursuant to CrRLJ 2.1(c). The consequences for an unsuccessful prosecution can be very expensive.
    OK, Found the root? (at least the supposed authorization for) this problem...and am very surprised where this root is (individuals responsible I am not sure, but I have a good idea)

    Tonasket City Ordinance 9.22.010. (2003)..specifically states that the hospital will be posted, which is interesting because NVH does not belong to the city of Tonasket, but is owned by the Okanogan Rural Public Hospital District, a municipal corporation organized under RCW 70.44.010.

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Ajetpilot View Post
    Then, trying to get a prosecutor to do something with the citation would be even harder.
    Or to get your sheriff to follow the law when the prosecutor breaks the law. Frustrating.

    Quote Originally Posted by Dave_pro2a View Post
    Wait a second, hold the phone.

    Are you guys implying that there might be a problem with the fact police, DAs and judges all work for the same team and therefore won't apply or enforce the law against their own?

    That's just crazy talk.
    I am not implying or inferring I am outright saying it is so.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  20. #20
    Regular Member Dave_pro2a's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Or to get your sheriff to follow the law when the prosecutor breaks the law. Frustrating.



    I am not implying or inferring I am outright saying it is so.
    So, are you trying to imply that our 'justice' system is like a football game where:

    1) You're on one team.
    2) 'They' are on the other team.
    3) All the refs are picked from the bench-warmers on 'Their' team.
    4) Therefore it's reasonable to assume that those refs are not treating your team fairly.

    That's just crazy talk

    Do you have any real proof of these outrageous allegations? (Birk!)
    Last edited by Dave_pro2a; 11-20-2012 at 01:00 PM.

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by Dave_pro2a View Post
    So, are you trying to imply that our 'justice' system is like a football game where:

    1) You're on one team.
    2) 'They' are on the other team.
    3) All the refs are picked from the bench-warmers on 'Their' team.
    4) Therefore it's reasonable to assume that those refs are not treating your team fairly.

    That's just crazy talk

    Do you have any real proof of these outrageous allegations? (Birk!)
    What about Birk? keep in mind that not only did SPD conduct a review, but an inquest jury was called and a death inquest was conducted in which average citizens who couldn't come up with a better excuse not to be there were seated to listen to both sides of the argument, one of which was presented by an attorney the Williams family had hired, and that jury couldn't find Birk clearly guilty. (I believe the Inquest was a coroners inquest conducted under RCW 36.24.20 although King County does have a charter government so maybe it's not) remember 4 of 8 jurors ruled that Williams was an imminent threat. also the jury for the inquest board was pulled out of the same pool as trial jurors would, if you can't get a jury to agree on a proceeding with NO criminal penalties then it would be a waste of the county's time and money to prosecute, becuase when you add criminal liability my guess is Birk would be cuising straight to aquittal (and then SVG would be complaining about juries I'm sure, probably will bring up an idea to have "free market" jurors or whatever. The average citizens would be conspiring with the government to let birk go free ) if brought to trial.

    Seattle police covered nothing up, the reports and dash cam video are publically available, King County covered nothing up, they brought birk to inquest in a public venue, using jurors randomly pulled from the community, and with the jurors decision the King County PA decided it was unlikely he could win at trial (meaning he can't prove beyond a reasonable doubt) This is exactly how the system is supposed to work

    This is not government shielding an officer, this was the proper decision to make regarding the circumstances under current law.
    Last edited by EMNofSeattle; 11-20-2012 at 01:38 PM.
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  22. #22
    Regular Member Dave_pro2a's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    What about Birk? keep in mind that not only did SPD conduct a review, but an inquest jury was called and a death inquest was conducted in which average citizens who couldn't come up with a better excuse not to be there were seated to listen to both sides of the argument, one of which was presented by an attorney the Williams family had hired, and that jury couldn't find Birk clearly guilty. (I believe the Inquest was a coroners inquest conducted under RCW 36.24.20 although King County does have a charter government so maybe it's not) remember 4 of 8 jurors ruled that Williams was an imminent threat. also the jury for the inquest board was pulled out of the same pool as trial jurors would, if you can't get a jury to agree on a proceeding with NO criminal penalties then it would be a waste of the county's time and money to prosecute, becuase when you add criminal liability my guess is Birk would be cuising straight to aquittal (and then SVG would be complaining about juries I'm sure, probably will bring up an idea to have "free market" jurors or whatever. The average citizens would be conspiring with the government to let birk go free ) if brought to trial.

    Seattle police covered nothing up, the reports and dash cam video are publically available, King County covered nothing up, they brought birk to inquest in a public venue, using jurors randomly pulled from the community, and with the jurors decision the King County PA decided it was unlikely he could win at trial (meaning he can't prove beyond a reasonable doubt) This is exactly how the system is supposed to work

    This is not government shielding an officer, this was the proper decision to make regarding the circumstances under current law.
    Blah blah blah, Harris! http://seattletimes.com/html/localne...harris15m.html

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    Quote Originally Posted by EMNofSeattle View Post

    .........I don't believe Washington allows private prosecution however....
    Wa. does allow private prosecution. I remember a thread about this a while back where private prosecution was used to file charges against a leo who shot a family dog.


    EDIT:

    I found the thread http://forum.opencarry.org/forums/sh...aint-Procedure
    Last edited by END_THE_FED; 11-20-2012 at 04:45 PM.
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  24. #24
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    Writ of Mandamus.

    See RCW 7.16

    "It may be issued by any court, . . . . to compel the admission (entry in the hospital) of a party (you) to the use and enjoyment of a right (to carry a gun) or office to which the party is entitled, and from which the party is unlawfully precluded (by their violation of preemption) by such inferior tribunal, corporation (the hospital district), board or person."

    You are asking the court to compel the hospital district to end their administrative rule against guns which is in violation of state preemption.

  25. #25
    Regular Member hermannr's Avatar
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    EEEE HAAAA (Squeek, Squeek, Squeek)

    Success (I hope!). The squeeking wheel....

    Herman,

    The hospital administrator has directed the hospital staff to remove the signs and the City Attorney is reviewing the ordinances and drafting an amendatory ordinance to solve the problem.

    Alice J. Attwood

    Clerk-Treasurer

    City of Tonasket

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