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Thread: Port's "rules" are, in fact, "laws".

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    RCW 53.08.220

    RCW 53.08.220
    Regulations authorized — Adoption as part of ordinance or resolution of city or county, procedure — Enforcement — Penalty for violation.
    (1) A port district may formulate all needful regulations for the use by tenants, agents, servants, licensees, invitees, suppliers, passengers, customers, shippers, business visitors, and members of the general public of any properties or facilities owned or operated by it, and request the adoption, amendment, or repeal of such regulations as part of the ordinances of the city or town in which such properties or facilities are situated, or as part of the resolutions of the county, if such properties or facilities be situated outside any city or town. The port commission shall make such request by resolution after holding a public hearing on the proposed regulations, of which at least ten days' notice shall be published in a legal newspaper of general circulation in the port district. Such regulations must conform to and be consistent with federal and state law. As to properties or facilities situated within a city or town, such regulations must conform to and be consistent with the ordinances of the city or town. As to properties or facilities situated outside any city or town, such regulations must conform to and be consistent with county resolutions. Upon receiving such request, the governing body of the city, town, or county, as the case may be, may adopt such regulations as part of its ordinances or resolutions, or amend or repeal such regulations in accordance with the terms of the request.

    (2)(a) Except as otherwise provided in this subsection, any violation of the regulations described in subsection (1) of this section is a misdemeanor which shall be redressed in the same manner as other police regulations of the city, town, or county, and it shall be the duty of all law enforcement officers to enforce such regulations accordingly.

    (b) Except as provided in (c) of this subsection, violation of such a regulation relating to traffic including parking, standing, stopping, and pedestrian offenses is a traffic infraction.

    (c) Violation of such a regulation equivalent to those provisions of Title 46 RCW set forth in RCW 46.63.020 remains a misdemeanor.
    Discussion:
    While it seems optional that the port district have it's regulations approved by the local city or county, it is clear that rules passed by the port commission by resolution (their only legal mechanism for making rules) are laws, because violation of them subjects the violator to paragraph (2)(a), which makes violations a misdemeanor. This triggers preemption.

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    deanf wrote:
    RCW 53.08.220

    RCW 53.08.220
    Regulations authorized — Adoption as part of ordinance or resolution of city or county, procedure — Enforcement — Penalty for violation.
    (1) A port district may formulate all needful regulations for the use by tenants, agents, servants, licensees, invitees, suppliers, passengers, customers, shippers, business visitors, and members of the general public of any properties or facilities owned or operated by it, and request the adoption, amendment, or repeal of such regulations as part of the ordinances of the city or town in which such properties or facilities are situated, or as part of the resolutions of the county, if such properties or facilities be situated outside any city or town. The port commission shall make such request by resolution after holding a public hearing on the proposed regulations, of which at least ten days' notice shall be published in a legal newspaper of general circulation in the port district. Such regulations must conform to and be consistent with federal and state law. As to properties or facilities situated within a city or town, such regulations must conform to and be consistent with the ordinances of the city or town. As to properties or facilities situated outside any city or town, such regulations must conform to and be consistent with county resolutions. Upon receiving such request, the governing body of the city, town, or county, as the case may be, may adopt such regulations as part of its ordinances or resolutions, or amend or repeal such regulations in accordance with the terms of the request.

    (2)(a) Except as otherwise provided in this subsection, any violation of the regulations described in subsection (1) of this section is a misdemeanor which shall be redressed in the same manner as other police regulations of the city, town, or county, and it shall be the duty of all law enforcement officers to enforce such regulations accordingly.

    (b) Except as provided in (c) of this subsection, violation of such a regulation relating to traffic including parking, standing, stopping, and pedestrian offenses is a traffic infraction.

    (c) Violation of such a regulation equivalent to those provisions of Title 46 RCW set forth in RCW 46.63.020 remains a misdemeanor.
    Discussion:
    While it seems optional that the port district have it's regulations approved by the local city or county, it is clear that rules passed by the port commission by resolution (their only legal mechanism for making rules) are laws, because violation of them subjects the violator to paragraph (2)(a), which makes violations a misdemeanor. This triggers preemption.
    Very good! So their corporation claim is not only bogus, but we knew that, but an out and out lie.

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    Nice!

    We win!

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    Bear 45/70 wrote:
    Very good! So their corporation claim is not only bogus, but we knew that, but an out and out lie.
    And the other kicker is that rules must be in line with state and federal laws... clearly the prohibition on firearms isn't in line with the state preemption law.

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    Now what do we do with this? I am attempting to research their "Section 3, General Rule 16.a" which is the gun prohibition. I want to see the regulation, see which resolution number it was passed under, see if it was reviewed and codified by the City of SeaTac (where the airport is), and then go from there . . . .

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    deanf wrote:
    Now what do we do with this? I am attempting to research their "Section 3, General Rule 16.a" which is the gun prohibition. I want to see the regulation, see which resolution number it was passed under, see if it was reviewed and codified by the City of SeaTac (where the airport is), and then go from there . . . .
    We shouldn't now need any background information. It doesn't matter when or where it was reviewed or codified. Their regulations, according to this RCW, are required to conform with state law. State law preempts firearm regulation. We win, they lose.

    Great research, deanf. Well done.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    I'll be posting more later, but I know a little bit more about this situation than most. You'll get blown away, and hell I'll be drafting up a letter.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    OK, found out more.

    Firearms and Explosives:
    a. No person, except for Port of Seattle Police Officers, Port of Seattle Certified
    Wildlife Hazard Management personnel, and fully commissioned law enforcement
    officers, shall carry firearms on the Airport. Other persons authorized by
    municipal, state, or federal government carrying firearms on the Airport in
    performance of their official duties shall have prior approval from the Port of
    Seattle Chief of Police.


    This comes from here:

    http://www.portseattle.org/downloads...eg12-22-07.pdf

    These regs were passed in 1981.

    A weak preemption bill passed in 1983. Second Amendment Foundation v. City of Renton essentially nullified it, and the Legislature reacted by passing the strong language that's in there today in 1985.

    In 2004, the Port of Seattle asked the Legislature to pass a state law banning restricted access airport carry. The reason is that they supposedly had an incident where a person tried to carry a firearm across the screening checkpoint. The person who did so was detained by Port of Seattle PD. He demanded release because there was no state statute banning carry in a restricted access area, and as they were not federally sworn officers, they could not lawfully detain him. Port of Seattle PD ignored this citing this rule and turned him over to the US Marshals. The federal magistrate had to throw out the case because the unlawful detainment by the Port of Seattle PD tainted the detainment by the federal officers.

    Now whether or not this incident actually happened, I'm not sure. The Seattle metro localities have a knack for saying "this incident occurred" when it actually didn't. Seattle PD was most famous for doing this for the "Green Lake Squirrel Rifle" incident, which Seattle PD officials, in getting the "case and carry law" passed (which essentially turned Washington into a green state).

    The resulting law is the following:

    (e) The restricted access areas of a commercial service airport designated in the airport security plan approved by the federal transportation security administration, including passenger screening checkpoints at or beyond the point at which a passenger initiates the screening process. These areas do not include airport drives, general parking areas and walkways, and shops and areas of the terminal that are outside the screening checkpoints and that are normally open to unscreened passengers or visitors to the airport. Any restricted access area shall be clearly indicated by prominent signs indicating that firearms and other weapons are prohibited in the area.

    The Port of Seattle PD knows damned well that preemption applies to them. They also seem to be drinking the kool-aid that Mayor Greggie Nickels is drinking, thinking that this will cause people to stop carrying. It won't.

    The Sequim case doesn't give license to any city to effect the carrying of firearms by the general public. Remember, the case was decided in the context of city contracting over space.

    From the Sequim case:

    The 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.


    Emphasis mine.

    PNSPA v. City of Sequim

    I suggest that everyone read this opinion before any further comment is made on what this case does. "Does not create private cause of action" has nothing at all to do with the effect of preempted gun ordinances used against individuals. It's still a civil rights violation under Article 1 Section 24 and would probably be a 2nd amendment violation (at least after Nordyke is decided.

    You know, the more this occurs the more I think that we need to follow Utah's example. It's pretty damned clear from the Cherry and PNSPA that these decisions don't touch general possession and carry, but it shows that the preemption language needs specific tightening.

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    Im more confused now. It seems that the ruling said that the rules attached to the permit to use the convention center do not apply to the pre-emption law because they requirements for the use of the convention center as private property and that they were not to be applied to the general public.

    From this I am thinking that the ports rules do trigger pre-emption because they apply to the general public and the airport is public property that is run by the state.

    Am I following this correctly or did I get lost:?

    And I dont really follow lonnies last comment about following Utah.

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    Lonnie: You fail to come to a point. Do we win, based on what I posted, or not?

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    Good info!

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    deanf wrote:
    Lonnie: You fail to come to a point. Do we win, based on what I posted, or not?
    We win. PNSPA flows from the Cherry decision. I'll try to dig up Cherry again.

    I was making the point that this whole "trespass" crap would go away nicely (without involving the courts) if we had a melding of Utah, Oregon, and Ohio's preemption statute.

    Utah Preemption:

    76-10-500. Uniform law.
    (1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
    (a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
    (b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
    (2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.

    Ohio Preemption Law:

    9.68 Right to bear arms - challenge to law.

    (A) The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.

    (B) In addition to any other relief provided, the court shall award costs and reasonable attorney fees to any person, group, or entity that prevails in a challenge to an ordinance, rule, or regulation as being in conflict with this section.

    (C) As used in this section:

    (1) The possession, transporting, or carrying of firearms, their components, or their ammunition include, but are not limited to, the possession, transporting, or carrying, openly or concealed on a person’s person or concealed ready at hand, of firearms, their components, or their ammunition.

    (2) “Firearm” has the same meaning as in section 2923.11 of the Revised Code.

    (D) This section does not apply to either of the following:

    (1) A zoning ordinance that regulates or prohibits the commercial sale of firearms, firearm components, or ammunition for firearms in areas zoned for residential or agricultural uses;

    (2) A zoning ordinance that specifies the hours of operation or the geographic areas where the commercial sale of firearms, firearm components, or ammunition for firearms may occur, provided that the zoning ordinance is consistent with zoning ordinances for other retail establishments in the same geographic area and does not result in a de facto prohibition of the commercial sale of firearms, firearm components, or ammunition for firearms in areas zoned for commercial, retail, or industrial uses.

    Effective Date: 03-14-2007

    Oregon Preemption Statute:

    166.170 State preemption. (1) Except as expressly authorized by state statute, the authority to regulate in any matter whatsoever the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition, is vested solely in the Legislative Assembly.

    (2) Except as expressly authorized by state statute, no county, city or other municipal corporation or district may enact civil or criminal ordinances, including but not limited to zoning ordinances, to regulate, restrict or prohibit the sale, acquisition, transfer, ownership, possession, storage, transportation or use of firearms or any element relating to firearms and components thereof, including ammunition. Ordinances that are contrary to this subsection are void. [1995 s.s. c.1 §1]

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    For anyone who wants to email the port PD chief, i've been going back and forth w/ his assistant.. email is below for -
    Carla L. Macnab
    Administrative Assistant
    Office of the Chief
    Port of Seattle Police Department
    206.431.4010


    macnab.c@portseattle.org

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    I'll give her the "Lonnie Wilson" slap over email. ;p

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    Assistant MacNab can't change anything. I wouln't waste my time with her.

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    but assistant Macnab isn't writing her own responses, which means either the Chief or a lawyer is helping her, and she's doing the ol' copy and paste....so someone else is engaged enough to help her. So it is worth it to get it in front of them....

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    In reviewing the Port's rules (thanks for the link Lonnie) I had a random thought: The person bringing a gun to the airport for a flight out, wishing to check it, is violating their rule, and could be ejected.

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    Lonnie Wilson wrote:
    It's still a civil rights violation under Article 1 Section 24 and would probably be a 2nd amendment violation (at least after Nordyke is decided.
    An incorporation decision by a 9th Cir. panel is not binding on state courts, and federal courts cannot hear state law claims.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Mike wrote:
    Lonnie Wilson wrote:
    It's still a civil rights violation under Article 1 Section 24 and would probably be a 2nd amendment violation (at least after Nordyke is decided.
    An incorporation decision by a 9th Cir. panel is not binding on state courts, and federal courts cannot hear state law claims.
    Cite please?

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    Well Assistant MacNab now has an email from me in her inbox . . . . It's probably a bit more than she will feel comfortable responding to without the help of counsel. It will be interesting to see who I get a reply from.

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    Lonnie Wilson wrote:
    Mike wrote:
    Lonnie Wilson wrote:
    It's still a civil rights violation under Article 1 Section 24 and would probably be a 2nd amendment violation (at least after Nordyke is decided.
    An incorporation decision by a 9th Cir. panel is not binding on state courts, and federal courts cannot hear state law claims.
    Cite please?
    It is a fundemental essentially jurisdictional rule that the only court which binds state courts on federal questions is the US Supreme Court. There may be some court opinions mentioning this but obvioulsy no federal court has jurisdiction to entertain an appeal from state court except the US S. Ct. So say the 9th Cir. incorporated the Second Amendment - no state court is bound by that decision.

    Similarly, federal courts have no power to here state law claims per se. Pendent jurisdiction in civil claims is allowed if the federal court has jurisdiction to hear the matter on federal grounds under the nucleous of facts; in the Pennhurst case the S. Ct. emphasized that federal courts to not rule directly on state law claims in civil rights cases - and note the difficulty zchet is having in Norfolk, VA case re what state preemption means - fed. judge said not my province to decide that!!

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    Quick Response!

    Here is her reply:
    Mr. Xxxxxx,

    Your questions are legal in nature and are being forwarded to the Port of Seattle General Counsel’s office for response.

    Any additional questions I receive from anyone regarding this matter will also be forwarded to the POS Legal Department.

    Thank you.
    Carla L. Macnab
    Administrative Assistant
    Office of the Chief
    Port of Seattle Police Department
    206.431.4010

    That's in response to this:
    Dear Ms. MacNab:

    It has come to my attention that the Port of Seattle is illegally prohibiting firearm possession in the non-sterile public areas of SeaTac Airport through SeaTac Airport Rules and Regulations Section 3, #16(a). This rule is a state firearms law preemption violation, and cannot be enforced. RCW 9.41.290 reads:


    "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 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."

    The Port of Seattle is a Municipality, according to RCW 53.04.060, ". . . and the port district shall then be and become a municipal corporation of the state of Washington . . .". State preemption applies to all municipalities.

    The Ports Rules and Regulations are actually laws, because violations of them are a misdemeanor, according to RCW 53.08.220, "(2)(a) Except as otherwise provided in this subsection, any violation of the regulations described in subsection (1) of this section is a misdemeanor which shall be redressed in the same manner as other police regulations of the city, town, or county, and it shall be the duty of all law enforcement officers to enforce such regulations accordingly." RCW 53.08.220 exclusively grants authority to the Port Commission to make rules and regulations for the Port's property. The above quoted section codifies those Rules and Regulations as law, because it adds a criminal penalty (misdemeanor) to violations of them. State preemption applies to all laws passed by a municipality.

    RCW 53.08.220 also requires that Rules and Regulations passed by resolution ". . . must conform to and be consistent with federal and state law." RCW 9.41.300 prohibits firearms in "The restricted access areas of a commercial service airport designated in the airport security plan approved by the federal transportation security administration, including passenger screening checkpoints at or beyond the point at which a passenger initiates the screening process. These areas do not include airport drives, general parking areas and walkways, and shops and areas of the terminal that are outside the screening checkpoints and that are normally open to unscreened passengers or visitors to the airport . . ." The Port's firearms prohibition clearly violates the RCW 53.08.220 proviso that rules and regulations conform to state law because it prohibits firearms where state law does not.

    In summary, the Port's firearm prohibition in non-sterile areas is illegal and cannot and must not be enforced because, (a) the Port of Seattle is a municipality, thus preemption applies, (b) the Port's Rules and Regulations are actually laws, thus preemption applies, and (c) the Port's Rules and Regulations must be consistent with state law. They are not because state law allows firearm possession in the non-sterile areas of the airport.

    Numerous state agencies have, in the past several years, changed their rules or regulations to allow the lawful possession of firearms on their properties. They have done this to be in compliance with state preemption. These agencies include Washington State Parks and Recreation Commission (concealed and open carry not prohibited in state parks), Metro transit and numerous other transit agencies, and numerous publicly owned and operated fairgrounds, parks, and other recreation facilities. These agencies all receive their operating authority from the State (just like the Port) and they have all agreed that their rules and regulations are controlled by state preemption.

    Ms. MacNab, I realize that you do not have the authority to change any of this, but you were given as the contact person for this issue. It is my hope that the Port's Rules and Regulations can be changed to conform to state law from the inside. Meaning: Port staff (you, the Police Chief, the Port CEO and the Port's legal counsel) will research this issue, realize the error, and recommend a change in the Rules and Regulations to the Port Commission. Of course the other route to change is letters to the Port Commissioners, attending commission meetings and giving public comment, contacting the State Attorney General, etc.

    As a constituent of the Port Commissioners, I am very concerned that failure to address this issue will expose the Port (and its employees individually, with no qualified immunity, see 42 USC 1983) to expensive false arrest lawsuits. Such a situation would be a failure of the commissioner's fiduciary responsibility to protect public assets from loss.

    Would you please write back to me and let me know how this issue will be resolved? Thank you.

    -Dean Xxxxxx



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    great letter Dean!

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    Dean... I think you just made her piss her britches.

    Outstanding letter.
    B.S. Chemistry UofWA '09
    KF7GEA

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    Wow. Did she really say "POS Legal Department" in her email?

    Chuckle.


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