imported post
Good news the City dropped the ticket however, this isn't over. We need someone else to get cited for this to continue the fight. The following is the legal brief that won us this small battle. We still need funding for this fight, this is far from over and will only get more expensive. Help us fight for our rights.
Thank you all for your support.
[align=center]IN THE MUNICIPAL COURT OF THE STATE OF WASHINGTON IN AND[/b][/align]
[align=center]FOR THE CITY OF SPOKANE[/b][/align]
[align=center][/b][/align]
CITY OF SPOKANE,
Plaintiff,
vs.
BENJAMIN EIERDAM,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. U120627
DEFENDANT’S MOTION TO DISMISS AND SUPPORTING MEMORANDUM OF AUTHORITIES
[align=center][/align]
MOTION
COMES NOW, Defendant, BENJAMIN EIERDAM, by and through his attorney of record, JOHN R. CLARK, and CRARY, CLARK & DOMANICO, P.S., respectfully moves the Court for an order dismissing the weapon in park charge.
[align=center]FACTS[/b][/align]
[align=center][/b][/align]
On July 30, 2009, Mr. Eierdam was at Manito Park in Spokane, Washington. Mr. Eierdam was openly carrying a firearm. Officer Storch approached and cited Mr. Eierdam for carrying a weapon in the park under Spokane, Wash., § 10.10.040(F)(1).
ISSUES AND ARGUMENT
I. FIREARM IS NOT LISTED UNDER THE DEFINITION OF DANGEROUS WEAPON.
Under Spokane, Wash., § 10.10.040(F)(1), a person in a park may not “possess any dangerous weapon as defined in chapter 9.41 RCW.” The definition for dangerous weapon can be found under RCW 9.41.250. Under RCW 9.41.250(1)(a), weapons like slung shots, sand clubs, metal knuckles, and spring blade knives are listed. However, firearms are absent from this list.
Expressio unius est exclusio alterius[/i] is a maxim of statutory construction that directs courts to “give weight and significance to … [an] obvious legislative vacancy.” State v. Swanson[/i], 116 Wash. App. 67, 76, 65 P.3d 343 (2003). Here, the statute specifically lists a group of weapons that are to be considered dangerous. When “a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things omitted from it were intentionally omitted by the legislature.” Id. [/i]at 75. Under RCW 9.41.250(1)(a), a firearm is not listed as a dangerous weapon and therefore expressio unius est[/i] exclusio alterius[/i] applies. Since there is an inference that the legislature intentionally omitted firearm from the statute, a firearm is not a dangerous weapon and the weapon in park charge should be dismissed.
II. THE COURT SHOULD DISMISS THE CHARGE AGAINST MR. EIERDAM BECAUSE THE MUNICIPAL ORDINANCE IS INVALID UNDER STATE PREEMPTION.
In the alternative, if the Court determines that a firearm is a dangerous weapon, State law preempts the City ordinance. Persons in the state of Washington have the right to bear arms. Wash. Const. art. I § 24. Under RCW 9.41.290, the State fully preempts firearm regulation. In its pertinent part, RCW 9.41.290 reads:
Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law…including…possession…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…
With respect to this law, the Legislature expressed that “the intent … is to supersede all local governmental ordinances relating to firearms which are more restrictive than this act.” 1 Senate Journal, 75[suP]th[/suP] Leg., Reg. Sess. At 752 (Wash. 1983). Cities are only permitted to regulate specific areas of firearms, which includes the discharge of firearms and “possession … in any stadium or convention center…” RCW 9.41.300(2)(a), RCW 9.41.300(2)(b).
Under the Spokane Municipal Code, a person may not possess a firearm in any park “unless authorized by department rule, regulation or special permission of the park board, park department or police department…” Spokane, Wash., § 10.10.040(F)(1). However, State law does not prohibit firearm possession in parks. See[/i] RCW 9.41.300. Mr. Eierdam merely possessed a firearm in Manito Park when he was cited for the infraction. The City’s governance over firearm possession is limited by what is specifically granted to them under State law. RCW 9.41.290. State law limits City governance of possession to stadiums and convention centers. RCW 9.41.300(2)(b). A park is neither of these locales. Therefore, the Spokane Municipal Code is more restrictive than State law and should be preempted.
As mentioned above, Mr. Eierdam was cited under a local ordinance. “Local laws and ordinances” are specifically mentioned in RCW 9.41.290. It is clear that the legislative intent behind RCW 9.41.290 is to invalidate local ordinances, like Spokane, Wash., § 10.10.040(F)(1), that are more restrictive than State law. 1 Senate Journal, 75[suP]th[/suP] Leg., Reg. Sess. At 752 (Wash. 1983); Cherry v. Municipality of Metro. Seattle, [/i]116 Wn.2d 794, 798, 808 P.2d 746 (1991). Thus, the local ordinance is invalid under State law.[/b]
[align=center]III. CONCLUSION[/b][/align]
[align=left] Firearms are not listed in the statutory definition of dangerous weapon. The Court is directed by expressio unius est exclusio alterius[/i] to give great weight to omissions made by the legislature and should therefore not find that a firearm is a dangerous weapon. Additionally, persons in Washington have the right bar arms. If the Court decides that a firearm is a dangerous weapon, State law preempts City laws and ordinances that regulate firearms to a greater extent than State law. Spokane Ordinance § 10.10.060 restricts dangerous weapon possession in parks. However, State law does not restrict firearm possession in parks and also does not permit Cities to regulate this area. Thus, the Spokane Ordinance is more restrictive than State law and is preempted. For these reasons, we respectfully ask this Court to dismiss Mr. Eierdam’s weapon in park charge.[/align]
DATED this _____ day of ___________, 2009
CRARY, CLARK & DOMANICO, P.S.
BY:________________________________
JOHN R. CLARK, WSBA #11607
Attorneys for Defendant
