imported post
Here's your missing case: (it is unpublished, hence the note at the top of it... which means NO court may cite it and no attorney may quote it in a courtroom or other official legal pleading, according to RCW mentioned below)
NOTE: UNPUBLISHED OPINION, SEE RCWA 2.06.040
Court of Appeals of Washington,
Division 1.
David M. ESTES, Appellant,
v.
VASHON MAURY ISLAND FIRE PROTECTION DISTRICT NO. 13, a political subdivision of
the State of Washington, Susan Carleton, David Jennings, Jan Nielsen, Sharon
Lee Nicholson, and Scott Rice, in their capacity as commissioners of Vashon
Maury Island Fire Protection District No. 13 and as individuals, and James
Wilson, in his capacity as fire chief and as an individual, Respondents.
No. 55950-8-I.
Oct. 3, 2005.
COLEMAN, AGID and SCHINDLER, JJ.
Unpublished Opinion
PER CURIAM.
RCW 9.41.290 and his rights under the state and federal constitutions. After answering the complaint, the District filed a motion for judgment on the pleadings pursuant to
CR 12(c). The Superior Court granted the motion and dismissed Estes' suit. Estes appeals.
Estes raises a question of law that we review de novo.
Fondren Klickitat County, 79 Wn.App. 850, 854, 905 P.2d 928 (1995) (equating a CR 12(b)(6) motion
Bravo v. Dolsen Cos., 125 Wn.2d 745, 749-50, 888 P.2d 147 (1995).
Estes challenges the Vashon Fire District policy on three grounds: statutory preemption of local firearms regulation; the Second Amendment to the United States Constitution; and
article I, section 24 of the Washington State Constitution. We address each claim.
RCW 9.41.290 is the section of Washington's Uniform Firearm Act providing for preemption of municipal laws enacted on the subject of firearms regulation:
The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities 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. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the
RCW 9.41.300, which grants limited authority to local agencies to forbid possession of firearms in certain locations.
RCW 9.41.300(2) provides in pertinent part:
Cities, towns, counties, and other municipalities may enact laws and ordinances:
...;
(b) Restricting the possession of firearms in any stadium or convention center, operated by a city, town, county, or other municipality, except that such restrictions shall not apply to:
(i) Any pistol in the possession of a person licensed under
RCW 9.41.070 or exempt from the licensing requirement by
RCW 9.41.060; or
(ii) Any showing, demonstration, or lecture involving the exhibition of firearms.
Because fire district buildings and property are not among the enumerated premises for which the Legislature has granted local jurisdictions authority to act, Estes contends that by necessary implication, the Legislature has preempted the District's policy here. This contention depends entirely, however, on the unsupported assumption that the district's "policy" constitutes
RCW 9.41.290 and .300.
The principal case interpreting these statutes is
Cherry v. Mun. of Metro. Seattle, 116 Wn.2d 794, 803, 808 P.2d 746 (1991). In Cherry, a Metro bus driver was terminated from his job for violation Metro's personnel policy prohibiting drivers from carrying a weapon while on duty or on Metro property. The driver challenged the dismissal, but it was upheld by an arbitrator and the Superior Court on summary judgment. This court reversed, reasoning in a split decision that the preemptive sweep of
RCW 9.41.290 was broad and that where the Legislature intended to create an exemption,
RCW 9.41.300 demonstrated that it would be stated expressly.
Cherry v. Metropolitan Seattle, 57 Wn.App. 164, 167-68, 787 P.2d 73 (1990).
The Supreme Court granted review and reversed this court.
Cherry v. Mun. of Metro. Seattle, 116 Wn.2d 794. Finding the statute ambiguous and thus requiring judicial construction, the court noted that it had previously "interpreted the act in light of its penal nature" and concluded that the preemption statute "was enacted to reform that situation in which counties, cities, and towns could each enact conflicting local criminal codes...."
Cherry, 116 Wn.2d at 800-01 (citing
In re Olsen v. Delmore, 48 Wn.2d 545, 548-49, 295 P.2d 324 (1956)). The Cherry court accordingly held that the Legislature, in enacting the modern version of
RCW 9.41.290, "sought to eliminate a multiplicity of
Cherry, 116 Wn.2d at 801.
While the precise issue before the Cherry court was a municipal employee's possession of firearms on the job, rather than the present question regarding visitors to fire district property, we find the Supreme Court's reasoning applicable and controlling here. Because the fire district policy here fall does not fall within the scope of the criminal firearms regulations that the Cherry court viewed as governed by
RCW 9.41.290, we reject Estes' claim of statutory preemption.
City of Spokane v. Fischer, 110 Wn.2d 541, 754 P.2d 1241 (1988).
As for his claim based on the Second Amendment to the United States Constitution, Estes fails to cite any authority for his contention that this provision of the Bill of Rights has been made applicable to the states and consequently to entities such as the District that are created by state law. We agree with the authority cited by the District holding to the contrary.
Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 539 n. 18 (6th Cir.1998);
Hickman v. Block, 81 F.3d 98 (9th Cir.1996);
Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965, 965 F.2d 723 (9th Cir.1992);
Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir.1982).
Estes' claim that the District's policy violates
article I, section 24 of the Washington Constitution also fails. Washington courts have "consistently held that the right to bear arms in
art. I, § 24 is not absolute, but instead is subject to 'reasonable regulation' by the State under its police power."
City of Seattle v. Montana, 129 Wn.2d 583, 593, 919 P.2d 1218 (1996) (quoting
Morris v. Blaker, 118 Wn.2d 133, 144, 821 P.2d 482 (1992)). "The scope of permissible regulation must depend upon a balancing of the public benefit to be derived from the regulation against the degree to which it frustrates the purpose of the constitutional provision."
Second Amendment Found. v. City of Renton, 35 Wn.App. 583, 586, 668 P.2d 596 (1983).
In Second Amendment Found., this court rejected a state constitutional challenge to a Renton ordinance prohibiting the carrying of firearms in places where alcoholic beverages are sold by the drink. We reasoned that the ordinance minimally affected the right to bear arms because it prevented the carrying of firearms only in bars and "[t]he benefit to public safety by reducing the possibility of armed conflict by persons under the influence of alcohol outweighs the general right to bear arms in defense of self and state."
Second Amendment Found., 35 Wn.App. at 586-87. Similarly, we conclude that the limited effect on the general right to bear arms presented by the District's policy here is minimal in comparison to the obvious benefit to the public of enhancing the safety of firefighters and paramedics on the job.
Affirmed.
Wash.App. Div. 1,2005.
Estes v. Vashon Maury Island Fire Protection Dist. No. 13
Not Reported in P.3d, 129 Wash.App. 1042, 2005 WL 2417641 (Wash.App. Div. 1)
