Dear [Insert Name],
I am writing you today in regards to your recently revised Chelan PUD code Section 9, regarding Firearms and/or Weapons. It has come to my attention that your recent review of the code, as modified, is still inconsistent with state law and preempted by the state.
The Attorney General Opinion, AGO 2008 No. 8, clarifies the Washington state preemption statute.
The AG states that “RCW 9.41.290 preempts a city’s authority to adopt firearms laws or regulations of application to the general public, unless specifically authorized by state law. Accordingly, RCW 9.41.290 preempts a city’s authority to enact local laws that prohibit possession of firearms on city property or in city-owned facilities.”
Court ruling, 101 Wn.2d 259, STATE v. MACIOLEK, the court held:
"If a weapon is displayed in a manner, under circumstances and at a time and place so that it poses a threat to another person, such a display would warrant alarm for the safety of another. Thus, narrowly construing the phrase to apply to only conduct that poses a threat to others gives the phrase a narrow and definite focus and saves it from vagueness."
In the appellate court ruling, 75 Wn. App. 118, State v. Spencer:
The court found that the 9.41.270 statute (referenced in Section 9, as its authority), “only prohibits the carrying or displaying of weapons when objective circumstances would warrant alarm in a reasonable person.” Further it states, “the Legislature’s use of the word ‘warrants’ in the statute implies that there must be a sufficient objective basis for the alarm, i.e., circumstances must be such that a reasonable person would be alarmed.”
In another appellate court ruling, No. 35333-4-II State v. Casad.
The court found that “several individuals have commented that they would find it strange, maybe shocking, to see a man carrying a gun down the street in broad daylight. Casad’s appellate counsel conceded that she would personally react with shock, but she emphasized that an individual’s lack of comfort with firearms does not equate to reasonable alarm. We Agree. It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people.”
Given this information and the recent Chan v Seattle court rulings that validates the Washington State preemption statute 9.41.290, in regards to cities authority to regulate carry of firearm in city parks, it is of my opinion that your counsel and/or board has error’ed in your decision to retain the preempted Chelan PUD code Section 9 statute. This decision may prove to be expensive as it leaves you open for litigation if the section is enforced. In recent events, the City of Oak Harbor has repealed their preempted statute in face of litigation from the Second Amendment Foundation. I will be informing the foundation of your lack of action in modifying your code to come into compliance with state law.
I respectfully request that you bring this information to attention, and re-consider the Section 9 statute. I would like to note that, I will continue to use Chelan PUD parks while openly carrying my self-defense firearm, as your statute is preempted.
Thank You,
[Insert Name]
. If one files a lawsuit that a court later deems to be spurious, that person could be on the hook for potentially thousands of $$$ for the defendant's (here, the PUD's) legal fees.