Kitsap County Commissioners – Emergency Powers

Whitney · Jul 8, 2010

I am writing to let you know that the Board of County Commissioners tentatively plans to hold a public hearing on removing the firearm-restriction provisions contained in chapter 2.04 KCC at its August 9, 2010 business meeting, which commences at 7:00 p.m.

If you would like confirmation that the Board intends to act on August 9, please contact the Clerk of the Board, Opal Robertson, at ORoberts@co.kitsap.wa.us on or after August 2.

Offending code pasted below.
-Whitney
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Chapter 2.04
COMMISSIONERS – EMERGENCY POWERS*

* Editor’s Note: See also Ch. 2.104, “Emergency Management.”

Sections:

2.04.010 Proclamation of civil emergency – When.

2.04.020 Orders during emergency.

2.04.030 Presentation of orders to commissioners for ratification.

2.04.040 Public to be notified.

2.04.050 Violation of order deemed misdemeanor.
2.04.010 Proclamation of civil emergency – When.

The chairman of the board of commissioners, or if he is unavailable, any other available commissioner, shall proclaim in writing the existence of a civil emergency, when it appears under existing circumstances that riot, unlawful assembly, insurrection, or the imminent threat thereof has occurred within the confines of Kitsap County and resulted in, or threatened to result in, the death or injury of persons, or the destruction of property to such extent as to require, in his judgment, extraordinary measures to protect the public peace, safety and welfare.

(Ord. 47 (1969) § 1, 1969)
2.04.020 Orders during emergency.

Upon the proclamation of a civil emergency by the chairman of the board of commissioners, or such other members of the board of commissioners as may be available, and during the existence of such civil emergency, the chairman may make and proclaim any or all of the following orders:

(1) An order imposing a general curfew applicable to the county as a whole, or to such geographical area or areas of the county as he deems necessary, and during such hours as he deems necessary; and he may from time to time modify the area or areas to which such a curfew shall apply, and the hours that such curfew will be in effect;

(2) An order requiring any or all business establishments to close and remain closed until further order;

(3) An order requiring the closure of any or all bars, taverns, liquor stores and other business establishments where alcoholic beverages are sold or otherwise dispensed; provided that with respect to those business establishments which are not primarily devoted to the sale of alcoholic beverages, and in which such alcoholic beverages may be removed or made secure for possible seizure by the public, the portions thereof utilized for the sale of items other than alcoholic beverages may, in his discretion, be allowed to remain open;

(4) An order requiring the discontinuance of sale, distribution, or giving away of alcoholic beverages in any or all parts of the county;

(5) An order requiring the closure of any or all business establishments where firearms and/or ammunition for firearms are sold or otherwise dispensed; provided that with respect to those business establishments which are not primarily devoted to the sale of firearms and/or ammunition and in which such firearms and/or ammunition may be removed or made secure from possible seizure by the public, the portions thereof utilized for the sale of items other than firearms and/or ammunition may, in his discretion, be allowed to remain open;

(6) An order requiring the discontinuance of the sale, distribution or giving away of firearms and/or ammunition for firearms in any or all parts of the county;

(7) An order prohibiting the carrying or possession of firearms or any instrument which is capable of inducing bodily harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties;

(8) An order requiring the discontinuance of the sale, distribution, or giving away of gasoline or other liquid, flammable or combustible products in any container (other than a gasoline tank properly fixed to a motor vehicle);

(9) An order closing to the public any and all public places, including streets, alleys, public ways, schools, parks, beaches, amusement areas, and public buildings;

(10) Such other orders as are imminently necessary for the protection of life and property.

(Ord. 47 (1969) § 2, 1969)

Ruby · Jul 8, 2010

Please correct me if I am wrong, but I think after the fiasco in New Orleans they passed a FEDERAL law that prohibits the confiscation of firearms from citizens in times of emergency. I think I read about it here on the forum just last week. Even if that is true, it wouldn't hurt to have the additional regulation just in case. I guess my main concern is if the county regulation is in conflict with Washington state, what happens then? Would the state overrule the county? I think right now Washington state government has the right to seize firearms in an emergency because the person posting suggested contacting the AG to get him to do something to change it. Please bear in mind that I may be entirely wrong as this is 3rd party hearsay.

gsx1138 · Jul 8, 2010

I also believe the Feds already made this kind of thing illegal. Of course it doesn't mean they wouldn't try. Given many gun owners already know about New Orleans I suspect that any officers or city officials trying it again would not have a very good day.

devildoc5 · Jul 9, 2010

the feds may very well have made this illegal post Katrina (I would have hoped someone would have wisened up after that) however there are numerous things that are federally illegally and are still perfectly legal in states.

Take the whole medical marijuana situation for instance, whethere you are for or against it is irrelevant. The CSA states it is illegal to possess or transport amongst others, SCOTUS even stated in Gonzales v Raich private cultivation is illegal due to possible interstate commerce problems (or some other bureaucratic mumbo jumbo like that) and yet currently (I believe) 6 states have medical marijuana provisions.

This is just one example where something has been declared (and reaffirmed in the SCOTUS) as illegal yet still is legal within the states. Why should we expect anything having to deal with firearms, or weapons in general, to be any different?

Mainsail · Jul 9, 2010

I cannot help but think that if there was civil unrest, such that "possible seizure by the public" were even remotely likely to occur, gun stores would close all by themselves. It's really nothing more than arrogance.

gogodawgs · Jul 9, 2010

http://www.nraila.org/News/Read/NewsReleases.aspx?ID=8299

President Bush Signs NRA-backed “Disaster Recovery Personal Protection” Measure Into Law

Monday, October 09, 2006

Fairfax, VA- President George W. Bush signed into law the prohibition of confiscation of legal firearms from law-abiding citizens during states of emergency. This action became necessary following practices by local officials in New Orleans in the wake of Hurricane Katrina. This new law was part of the Department of Homeland Security Appropriations bill.

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00005207----000-.html

§ 5207. Firearms policies

(a) Prohibition on confiscation of firearms No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—

devildoc5 said:
the feds may very well have made this illegal post Katrina (I would have hoped someone would have wisened up after that) however there are numerous things that are federally illegally and are still perfectly legal in states.

Take the whole medical marijuana situation for instance, whethere you are for or against it is irrelevant. The CSA states it is illegal to possess or transport amongst others, SCOTUS even stated in Gonzales v Raich private cultivation is illegal due to possible interstate commerce problems (or some other bureaucratic mumbo jumbo like that) and yet currently (I believe) 6 states have medical marijuana provisions.

This is just one example where something has been declared (and reaffirmed in the SCOTUS) as illegal yet still is legal within the states. Why should we expect anything having to deal with firearms, or weapons in general, to be any different?

Mainsail · Jul 9, 2010

gogodawgs said:
http://www.nraila.org/News/Read/NewsReleases.aspx?ID=8299

President Bush Signs NRA-backed “Disaster Recovery Personal Protection” Measure Into Law

Monday, October 09, 2006

Fairfax, VA- President George W. Bush signed into law the prohibition of confiscation of legal firearms from law-abiding citizens during states of emergency. This action became necessary following practices by local officials in New Orleans in the wake of Hurricane Katrina. This new law was part of the Department of Homeland Security Appropriations bill.

Nothing in the quoted section in the OP mentions confiscation. They might confiscate your firearm when they arrest you for carrying a firearm, but they won't be going door-to-door seizing people's guns. That law doesn't seem to apply here.

gogodawgs · Jul 9, 2010

TITLE 42 > CHAPTER 68 > SUBCHAPTER V > § 5207
Prev | Next

§ 5207. Firearms policies

How Current is This?

(a) Prohibition on confiscation of firearms No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—
(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency

(b) Limitation Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.

(c) Private rights of action (1) In general Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.

(2) Remedies In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.

(3) Attorney fees In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs

gogodawgs · Jul 9, 2010

Whitney said:
(7) An order prohibiting the carrying or possession of firearms or any instrument which is capable of inducing bodily harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties;
[(Ord. 47 (1969) § 2, 1969)

Mainsail said:
Nothing in the quoted section in the OP mentions confiscation. They might confiscate your firearm when they arrest you for carrying a firearm, but they won't be going door-to-door seizing people's guns. That law doesn't seem to apply here.

#7 applies to the post Katrina law.

Mainsail · Jul 9, 2010

gogodawgs said:
#7 applies to the post Katrina law.

Not really. Look at the Bush law you posted:

(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation.

If Kitsap makes a law that allows them to issue an order making it illegal to carry a firearm during declared emergencies, and you're carrying a firearm during a declared emergency, then you would be breaking the law. The police or other agents could legally seize that firearm as part of their investigation, and you couldn't legally carry it in jail anyway.

We should not allow Kitsap to assume this authority.

devildoc5 · Jul 9, 2010

Once again it seems there is a little bit of a conundrum here. The king (big fed) says it is illegal to take my gun in a declared emergency.

The state says "too bad we are gonna do it because we dont think it is illegal"

Which law is correct? Which law is more enforceable? What would the penalties be for violating each? (them vs. me type scenario)

What happens if I follow federal law and refuse to be disarmed by LEO and it becomes violent?

I kinda hate to say it but I think this is another one of those issues we need to bring to local and state officials attention and demand action.

Whitney · Aug 8, 2010

Emergency Powers

BUMP~

Monday in the regular meeting of the County Commissioners, (7pm) a public hearing is scheduled to consider amending this code.

Page 4 Listed under public hearings

http://www.kitsapgov.com/boc/2010_Agendas/Regular%20Meeting/2010_08-09-10%20AGENDA.pdf

Proposed amended ordnance
http://www.kitsapgov.com/boc/agenda...0809_COM_O_KCC Commissioners Emerg Powers.pdf

Whitney said:
I am writing to let you know that the Board of County Commissioners tentatively plans to hold a public hearing on removing the firearm-restriction provisions contained in chapter 2.04 KCC at its August 9, 2010 business meeting, which commences at 7:00 p.m.

If you would like confirmation that the Board intends to act on August 9, please contact the Clerk of the Board, Opal Robertson, at ORoberts@co.kitsap.wa.us on or after August 2.

Offending code pasted below.
-Whitney
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
Chapter 2.04
COMMISSIONERS – EMERGENCY POWERS*

* Editor’s Note: See also Ch. 2.104, “Emergency Management.”

Sections:

2.04.010 Proclamation of civil emergency – When.

2.04.020 Orders during emergency.

2.04.030 Presentation of orders to commissioners for ratification.

2.04.040 Public to be notified.

2.04.050 Violation of order deemed misdemeanor.
2.04.010 Proclamation of civil emergency – When.

The chairman of the board of commissioners, or if he is unavailable, any other available commissioner, shall proclaim in writing the existence of a civil emergency, when it appears under existing circumstances that riot, unlawful assembly, insurrection, or the imminent threat thereof has occurred within the confines of Kitsap County and resulted in, or threatened to result in, the death or injury of persons, or the destruction of property to such extent as to require, in his judgment, extraordinary measures to protect the public peace, safety and welfare.

(Ord. 47 (1969) § 1, 1969)
2.04.020 Orders during emergency.

Upon the proclamation of a civil emergency by the chairman of the board of commissioners, or such other members of the board of commissioners as may be available, and during the existence of such civil emergency, the chairman may make and proclaim any or all of the following orders:

(1) An order imposing a general curfew applicable to the county as a whole, or to such geographical area or areas of the county as he deems necessary, and during such hours as he deems necessary; and he may from time to time modify the area or areas to which such a curfew shall apply, and the hours that such curfew will be in effect;

(2) An order requiring any or all business establishments to close and remain closed until further order;

(3) An order requiring the closure of any or all bars, taverns, liquor stores and other business establishments where alcoholic beverages are sold or otherwise dispensed; provided that with respect to those business establishments which are not primarily devoted to the sale of alcoholic beverages, and in which such alcoholic beverages may be removed or made secure for possible seizure by the public, the portions thereof utilized for the sale of items other than alcoholic beverages may, in his discretion, be allowed to remain open;

(4) An order requiring the discontinuance of sale, distribution, or giving away of alcoholic beverages in any or all parts of the county;

(5) An order requiring the closure of any or all business establishments where firearms and/or ammunition for firearms are sold or otherwise dispensed; provided that with respect to those business establishments which are not primarily devoted to the sale of firearms and/or ammunition and in which such firearms and/or ammunition may be removed or made secure from possible seizure by the public, the portions thereof utilized for the sale of items other than firearms and/or ammunition may, in his discretion, be allowed to remain open;

(6) An order requiring the discontinuance of the sale, distribution or giving away of firearms and/or ammunition for firearms in any or all parts of the county;

(7) An order prohibiting the carrying or possession of firearms or any instrument which is capable of inducing bodily harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties;

(8) An order requiring the discontinuance of the sale, distribution, or giving away of gasoline or other liquid, flammable or combustible products in any container (other than a gasoline tank properly fixed to a motor vehicle);

(9) An order closing to the public any and all public places, including streets, alleys, public ways, schools, parks, beaches, amusement areas, and public buildings;

(10) Such other orders as are imminently necessary for the protection of life and property.

(Ord. 47 (1969) § 2, 1969)

arms_libertas · Aug 10, 2010

devildoc5 said:
Once again it seems there is a little bit of a conundrum here. The king (big fed) says it is illegal to take my gun in a declared emergency.

I don't think that altogether accurate. The federal law only prohibits federal employees, uniformed service members, those operating under color of Federal law, or receiving Federal funds, or under control of any Federal official...

Unless it's a federal state of emergency your opinion or suspicion that a local law enforcement agent is operating under the color of Federal law, or that they received federal funds, or operating under the control of Federal officials would be a matter for the courts to decide.

I'm guessing that local law enforcement wouldn't know definitively the scope of the federal law and arrest you first and ask questions later.

BigDave · Aug 10, 2010

I have bolded and underlined what I am addressing here and that once the State accepts help from the Federal Government then this applies until that time out Washington State Constitution Section 1 Article 24 applies.

Once the State accepts help or funds then the Stafford Act Applies and I would think if they violated the Act they could well loose assistance and funding.

Washington State Governor has a provision to suspend firearms outside the home or business during a declared emergency, which if challenged would be in violation of the Washington State Constitution.

To date I am unaware that any Governor, County of City have tried to enact this clause.

When we have a more favorable Legislature this should be addressed.

It appears Kitsap County is coming into compliance

gogodawgs said:
TITLE 42 > CHAPTER 68 > SUBCHAPTER V > § 5207
Prev | Next

§ 5207. Firearms policies

How Current is This?

(a) Prohibition on confiscation of firearms

No officer or employee of the United States (including any member of the uniformed services),

or person operating pursuant to or under color of Federal law,

or receiving Federal funds,

or under control of any Federal official,

or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—

(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency

(b) LimitationNothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.

(c) Private rights of action (1) In general Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.

(2) RemediesIn addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.

(3) Attorney feesIn any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs

jddssc121 · Aug 10, 2010

you don't even need to go the Federal route. State law preempts this. Redmond had the same provision in their code and I worked with them to remove it.

Kitsap County Commissioners – Emergency Powers

Whitney

Regular Member

Ruby

Regular Member

gsx1138

Regular Member

devildoc5

Regular Member

Mainsail

Regular Member

gogodawgs

Campaign Veteran

Mainsail

Regular Member

gogodawgs

Campaign Veteran

gogodawgs

Campaign Veteran

Mainsail

Regular Member

devildoc5

Regular Member

Whitney

Regular Member

arms_libertas

Regular Member

BigDave

Opt-Out Members

jddssc121

Regular Member