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Thread: a recent decision made by the WA State Supreme Court

  1. #1
    State Researcher Bill Starks's Avatar
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    a recent decision made by the WA State Supreme Court

    Under existing state statutes and a recent decision made by the WA State Supreme Court, managers of public and private buildings, as well as entrances and walkways immediately associated with these buildings, may adopt rules and enforce policies restricting the “open carry” of firearms. The enforcement of these rules/policies is civil trespass and potentially criminal trespass, providing the rule is posted or announced and the person who attempts “open carry” violates established rules by either refusing to leave or refusing to comply with the rule for entry.
    Can someone point me to this new decision?
    Try as I might, I'm not finding it. The reason for asking is that the City of Kennewick has issued a training bulletin and the above paragraph is in the bulletin.

    Bulletin available here: http://forum.nwcdl.org/index.php?act...downfile&id=81
    Last edited by Bill Starks; 01-11-2012 at 09:43 PM.

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    Sounds like typical uninformed cop BS to me. Managers of private buildings, yes. Managers of public buildings, a violation of the state preemption statute, unless expressly provided for by the legislature.

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    Regular Member massivedesign's Avatar
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    Wow, that's a terrible training bulletin!
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    Opt-Out Members BigDave's Avatar
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    Under existing state statutes and a recent decision made by the WA State Supreme Court, managers of public and private buildings, as well as entrances and walkways immediately associated with these buildings, may adopt rules and enforce policies restricting the “open carry” of firearms.
    The enforcement of these rules/policies is civil trespass and potentially criminal trespass, providing the rule is posted or announced and the person who attempts “open carry” violates established rules by either refusing to leave or refusing to comply with the rule for entry.
    If they are talking about private businesses adopting rules/policies to prohibit open carry or for that matter firearms, which we have known for sometime, though if they are inferring a Public Building being a city or county owned, state preemption still applies.

    I feel this is more to confuse then to inform.

    As to a new ruling I am not aware nor have have I been following what private business can or cannot restrict.
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    Regular Member FMCDH's Avatar
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    If so, its not any opinion handed down within the last 90 days. I just combed through all of them and found nothing related to firearms possession in relation to posted business or even anything close.

    Il keep looking, but the training bulletin has the distinct feeling of reference to an OLDER version of 9.41.270.

    See... second paragraph
    http://opencarry.org/wa.html

    What is "Warranting alarm", why do people (firearms instructors, police officers, gun shop employees) say that this law makes it illegal to open carry? In 1969, RCW 9.41.270 was passed in light of the intimidating actions of the Black Panther Party in both the State of California and in Seattle . Analysis of the legislative intent behind the bill and final law indicated that the Washington State Legislature never intended this to be a gun control bill, and stripped out in committee provisions of the bill which would have prohibited carry within 500 feet of any "public building" for fear it would ensnare a peaceable open carrier walking nearby, thereby violating a persons rights under Article 1, Section 24 of the Washington State Constitution. This is not to say that all forms of open carry are lawful. The key word is "peaceable". If your pistol is in a holster, and you're generally not touching it or making gripping movements (except of course, in an actual act of self defense), or opening a coat to expose your pistol to intimidate someone to do something, then the current body of case law (State vs. Casad, State v. Spencer) generally makes such carry lawful.

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    Campaign Veteran gogodawgs's Avatar
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    Bill,

    It doesn't exist. This bulletin is poorly written and full of errors.
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    I remember that wording from a Seattle training bulletin which was copied from a Spokane training bulletin. Or maybe it was the other way 'round?

    Anyway, start reading some of the older training bulletins and you will find that wording any maybe the original source.

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    Regular Member amzbrady's Avatar
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    So... In the State of Washington it is not illegal to merely "open carry" a firearm in public, provided the firearm is holstered or somehow affixed to an individual’s person and not in their hand available,

    So if you have your firearm laying on your seat in your holster, you can not pick it up and walk it to your door legally? I wonder how they would react to a hand holster or if there even is one. How does this factor in, in having it laying on your seat, does it have to be in a holster? I keep mine wedged in between the seats occasionally, does it have to be holstered? If you duct tape it to your forhead does it have to be in a holster?

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    Regular Member Whitney's Avatar
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    Liability

    This bulletin is poorly written and contradictory, ambiguous at best it provides confusing information to those who read it. It appears to open the city up to liability in the event of an "open carry incident" that "warrants alarm".

    It seems to me it would be much easier to inform the city their training bulletin is not congruent with the RCW before they are taken to task.

    Can the city training department be held liable in a civil or perhaps criminal case if this bulletin is the basis for wrongful arrest? What is the proper / legal recourse for wrongful arrest in this scenario?


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    Regular Member Lammo's Avatar
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    Quote Originally Posted by M1Gunr View Post
    Can someone point me to this new decision?
    Try as I might, I'm not finding it. The reason for asking is that the City of Kennewick has issued a training bulletin and the above paragraph is in the bulletin.

    Bulletin available here: http://forum.nwcdl.org/index.php?act...downfile&id=81
    How does one address a law enforcement training bulletin that contains a lie? Some other lawyer than me is going to have to take this on - - I can't.

    Putting the words open and carry together in quotes (i.e., "open carry") into a Westlaw search returns exactly one case. That case is State v. Robey, 74 Wash. 562, 134 P. 174 (1913). For those who don't understand legal citations, the case appears in Volume 74 of the Washington reports at page 562 and in Volume 134 of the Pacific Reporter at page 174 and it was decided in 1913.

    Even if the date didn't give it away, the volume numbers would. We are up into the 170s in the SECOND series of Washington reports and well over 250 in the THIRD series of the Pacific Reporter (which covers AK, AZ, CA, CO, HI, ID, KS, MT, NV, NM, OK, OR, UT, WA, WY (how Kansas and Oklahoma get include in the Pacific is beyond me)). Oh, yeah, the case dealt with gambling and had nothing to do with firearms.

    Changing the search to the rather convoluted but understandable to legal researchers expression reading "restrict & open w/2 carry & firearm" returns no cases. Zero. None. Zip. Nada. Niente. Nichevo. I think you get the point. Changing it to "open w/2 carry & firearm" returns the same - - no cases. Changing it to read ""private building" & firearm" returns only State v. Pang, a 1997 case resulting from the arson fire at the Mary Pang Products warehouse in which four Seattle firefighters died. Searching "open w/3 carry" brings back a boatload of gambling cases from the oughts, teens, 20s, 30s, 40s on up to 1971. Curious obsession with gambling at the Supreme Court.

    Additionally, as has been discussed a bazillion times in here, under RCW 9.41.290 and .300, public building managers have no authority to make rules or policies regarding firearms. If cities and counties can't make up their own firearms rules, building managers sure can't either. Private property owners can do as they please and this is the only part of the bulletin that is marginally accurate. Oh, yeah, making the search ""building manager" & firearm" returns one case and that involved whether a hatchet could be a deadly weapon.

    Bottom line: In my not so humble legal opinion, there is no such Washington case, Supreme Court or otherwise, recent or ancient, that says anything like what the Kennewick training bulletin says about building managers and open carry and they need to be called out for this.
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    Regular Member amlevin's Avatar
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    Quote Originally Posted by Lammo View Post
    How does one address a law enforcement training bulletin that contains a lie?

    ~~~~~~~~~~~~~~~~~~~~``



    Bottom line: In my not so humble legal opinion, there is no such Washington case, Supreme Court or otherwise, recent or ancient, that says anything like what the Kennewick training bulletin says about building managers and open carry and they need to be called out for this.
    Makes one wonder if the people of Kennewick really know how incompetent some of those they've elected, or have working in City Government really are. Maybe a friendly newspaper reporter could do more to expose this than any threat of legal action.
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    Regular Member FMCDH's Avatar
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    Quote Originally Posted by amlevin View Post
    Makes one wonder if the people of Kennewick really know how incompetent some of those they've elected, or have working in City Government really are. Maybe a friendly newspaper reporter could do more to expose this than any threat of legal action.
    I was going to say, make it an embarrassing PR issue for the city council.

    Its worked in quite a few cities. Not all mind you (like Bothell), but quite a few.

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    Regular Member Freedom First's Avatar
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    And now we see the reason for my dawdling...

    Now that you have read the bulletin in question...

    I did submit a much better, rewritten, version but other than a "thank you for your input", I never heard from them again. I've just been waiting to see the end result, i.e. do they stop messing with OCers or not? Nothing has happened since then but I dunno, there's only a few of us here... If there is another encounter, I am planning on going to the City Council with my complaint and a demand for a much better, and citizen reviewed, product.

    Mark
    Last edited by Freedom First; 01-13-2012 at 10:24 PM.
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    Regular Member Freedom First's Avatar
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    Oh, and by the way, regarding the Supreme Court decision they refer to, they obviously pulled that out from under the seat of a patrol car... It doesn't exist based on my research and the city attorney failed to respond to my question on that.
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    Regular Member SnarlyWino's Avatar
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    IANAL, so I would love for Lammo and others to chime it here. I work for a public facility, and I witnessed our lawyer instruct a room full of public facility managers that there is a legal differentiation between the word "law" and "policy", and while preemption does prevent them from making more restrictive laws, they are free to make whatever policy they felt appropriate.

    Again, this is not my perspective, but that of a lawyer advising public facilities. What I would like to see is some feedback from a lawyer on the differentiation of the word "law" or "ordinance", as is the language in the RCW, from the word "policy".
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    Regular Member Difdi's Avatar
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    Quote Originally Posted by SnarlyWino View Post
    I witnessed our lawyer instruct a room full of public facility managers that there is a legal differentiation between the word "law" and "policy", and while preemption does prevent them from making more restrictive laws, they are free to make whatever policy they felt appropriate.
    Yes, there is indeed a difference between laws and policies. A law must be obeyed or there are consequences. A policy is a guideline. If following the guideline causes you to violate a law, you will then suffer the consequences of being a criminal.

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    Quote Originally Posted by SnarlyWino View Post
    IANAL, so I would love for Lammo and others to chime it here. I work for a public facility, and I witnessed our lawyer instruct a room full of public facility managers that there is a legal differentiation between the word "law" and "policy", and while preemption does prevent them from making more restrictive laws, they are free to make whatever policy they felt appropriate.

    Again, this is not my perspective, but that of a lawyer advising public facilities. What I would like to see is some feedback from a lawyer on the differentiation of the word "law" or "ordinance", as is the language in the RCW, from the word "policy".
    RCW 9.41.290
    State preemption.

    The state of Washington hereby fully occupies and PREEMPTS THE ENTIRE FIELD firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation
    I would think "policy" would fall within the "entire field" as mentioned in 9.41.290

  18. #18
    Regular Member NavyMike's Avatar
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    Quote Originally Posted by Freedom First View Post
    Oh, and by the way, regarding the Supreme Court decision they refer to, they obviously pulled that out from under the seat of a patrol car... It doesn't exist based on my research and the city attorney failed to respond to my question on that.
    Because their bulletin is a clear cut and paste of another city's [Spokane?] older bulletin, my guess is that this refers to the Cherry and PNSPA cases. Several cities tried to use these as a means to perform an end run around state preemption. This was directly addressed in the Seattle parks case where Seattle got a good beating for attempting to use a 'policy versus a law' argument and for applying Cherry against members of the public in public parks.

    The city attorney can't give you an effective response because he copied some other city's work without knowing the references that he referred to.
    Last edited by NavyMike; 01-15-2012 at 10:42 PM.
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