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Open Carry in the news KHQ interview with Jeff Hayes

Jeff Hayes

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I talked to Christine Anthony today and she is sticking by her statements even after I pointed out that there were no open carry laws. I talked to her boss and after a short conversation he asked for some time to go have a second look and he would get back to me.

I also talked to Mr. Twohig from The Spokane Convention Center and hos opinion is that since they are renting the space out they can ban firearms and they do not fall under state preemption due to the renting out of the facility. He did agree to allow me to speak at the March 13th board meeting, I am hoping that he was not talking about the 3 minutes they allow anybody.

Clearly the intent of the exception (B) (i) in RCW 9.41.300 was to allow licensed person to carry a firearm in stadiums, arenas and convention centers and just as clearly Mr. Twohig is attempting to do an end run on the law.

I also find it odd that when we were first contacted the convention Center folks were citing SMC 10.10.050 and now we are down to we can because we rent the space out.
 

shad0wfax

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I also talked to Mr. Twohig from The Spokane Convention Center and hos opinion is that since they are renting the space out they can ban firearms and they do not fall under state preemption due to the renting out of the facility. He did agree to allow me to speak at the March 13th board meeting, I am hoping that he was not talking about the 3 minutes they allow anybody.

Clearly the intent of the exception (B) (i) in RCW 9.41.300 was to allow licensed person to carry a firearm in stadiums, arenas and convention centers and just as clearly Mr. Twohig is attempting to do an end run on the law.

I also find it odd that when we were first contacted the convention Center folks were citing SMC 10.10.050 and now we are down to we can because we rent the space out.

The chief law enforcement officer of the state of Washington has already issued a formal written opinion on this issue.

AGO 2008 No. 8 - October 13, 2008
http://atg.wa.gov/AGOOpinions/opinion.aspx?section=archive&id=21188

Dear Senator Morton and Representative Van De Wege:

By letter previously acknowledged, you have asked the following paraphrased question:

Does a city in Washington have the authority to enact a local law that prohibits possession of firearms on city property or in city-owned facilities?


BRIEF ANSWER


The answer to your question is no. RCW 9.41.290 “fully occupies and preempts the entire field of firearms regulation” and preempts a city’s authority to adopt firearms laws or regulations of application to the general public, unless specifically authorized by state law. Accordingly, RCW 9.41.290 preempts a city’s authority to enact local laws that prohibit possession of firearms on city property or in city-owned facilities.

The AGO Opinion goes on to talk about a Washington Supreme Court case, Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342, 144 P.3d 276 (2006), where the municipalities are granted exemptions to preemption under 9.41.290 but only when acting in capacity as a private business owner and only in narrow respects.

The Court explained that 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.”

So the long story short is that if the city leases the property out to a private party, they can impose certain conditions on the private party in the lease, which may restrict firearms on the premises, or have specific regulations for firearms on the premises (such as all actions locked open and unloaded during a gun show on city property) but that they cannot restrict the general public under normal business.

So unless the Ron Paul rally had a no firearms clause in the lease, the city cannot restrict firearms. Call me crazy, but I doubt that the Ron Paul rally organizers would have asked for a no firearms clause in the lease. And as it was not a gun show, I doubt that the city imposed certain restrictions on the method of firearm carry or entry with a firearm.


I've been 'round and 'round with the Spokane Arena and the Spokane Convention center about this and each time their tactic changes. As there's already a formal written opinion on the issue, we're never going to get results unless we have a large number of open carriers denied access to the convention center during a paid admission event for which we have tickets, and then file a class-action suit against the City of Spokane. (It would have to be an event that is not an outdoor concert, of course.) With the AGO already having an opinion on the issue, you'd have to seek an injunction against the city in the suit to get anything changed, as appealing the decision would be pointless. Preemption is preemption and it is already settled law. We just need to get the city to respect that.
 

Grapeshot

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First I am not up to speed on Washington code/statutes, so bear with me on these generalities and then see how they may tie in with your problem.

I understand that your have a good preemption statute. When a management company operates a facility they are the agent of the owner or in this case the municipality and they are still at that point bound by preemption.

However, when that facility is rented to a third party, that party generally has rights conveyed to them individually that allow them to control their environment i.e. make rules.

It is much the same as when you rent a house. The owner my not be able to discriminate any of the protected classes in renting the property, but you as the tenant, the one in control of the property, can pretty much do as you please to that regard. Why you can even say "No guns and no senior citizens allowed" and it would be legal.

I suggest that it is likely the same in Washington. A venue (like Disney On Ice) can rent a city own coliseum and say "No Guns" legally.

Check out the application of your laws with this in mind and see if this reasoning does or does not apply. Hint: it likely will be found in your real estate laws.

The distinction will come in who is making the rules. Neither the municipality nor the agent can. The venue/tenant likely can do so.
 
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Grapeshot

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The chief law enforcement officer of the state of Washington has already issued a formal written opinion on this issue.

AGO 2008 No. 8 - October 13, 2008
http://atg.wa.gov/AGOOpinions/opinion.aspx?section=archive&id=21188

Dear Senator Morton and Representative Van De Wege:

By letter previously acknowledged, you have asked the following paraphrased question:

Does a city in Washington have the authority to enact a local law that prohibits possession of firearms on city property or in city-owned facilities?

BRIEF ANSWER

The answer to your question is no. RCW 9.41.290 “fully occupies and preempts the entire field of firearms regulation” and preempts a city’s authority to adopt firearms laws or regulations of application to the general public, unless specifically authorized by state law. Accordingly, RCW 9.41.290 preempts a city’s authority to enact local laws that prohibit possession of firearms on city property or in city-owned facilities.


The AGO Opinion goes on to talk about a Washington Supreme Court case, Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342, 144 P.3d 276 (2006), where the municipalities are granted exemptions to preemption under 9.41.290 but only when acting in capacity as a private business owner and only in narrow respects.

--snip--

The question asked and the answer given would not IMO have application here. Better to ask if a venue/lessee of a municipal facility renting for their own use can make their own rules specifically regarding guns.
 

Jeff Hayes

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A FOIA request for the lease agreement between Ron Paul and The Public Facilities District would be the next step.
 

BigDave

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The question asked and the answer given would not IMO have application here. Better to ask if a venue/lessee of a municipal facility renting for their own use can make their own rules specifically regarding guns.

We already know that answer, Yes.
The Attorney Generals Opinion on this topic that Cities, Towns and Municipalities are bound by State Preemption.

Why bring this up to them? This is just another twist to assist anti's in prohibiting firearms in a round about way.
I was able to get Yakima County off that list of requiring venues to prohibit firearms
 

Thor80

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Spokane County, WA
First I am not up to speed on Washington code/statutes, so bear with me on these generalities and then see how they may tie in with your problem.

I understand that your have a good preemption statute. When a management company operates a facility they are the agent of the owner or in this case the municipality and they are still at that point bound by preemption.

However, when that facility is rented to a third party, that party generally has rights conveyed to them individually that allow them to control their environment i.e. make rules.

It is much the same as when you rent a house. The owner my not be able to discriminate any of the protected classes in renting the property, but you as the tenant, the one in control of the property, can pretty much do as you please to that regard. Why you can even say "No guns and no senior citizens allowed" and it would be legal.

I suggest that it is likely the same in Washington. A venue (like Disney On Ice) can rent a city own coliseum and say "No Guns" legally.

Check out the application of your laws with this in mind and see if this reasoning does or does not apply. Hint: it likely will be found in your real estate laws.

The distinction will come in who is making the rules. Neither the municipality nor the agent can. The venue/tenant likely can do so.

Hi Grapeshot,
I believe that your statements are pretty much on. Our major issue, and I brought this up with Orphan is that the "Ron Paul Campaign" did not Lease the entire building/convention center etc.... NOR were they the ones that asked us to leave. They had a couple of conference rooms with the dividing wall removed. The pictures of Orphan and I are OUTSIDE the "rented" areas, which is "common egress/ingress" area. So that portion of the facility is exempt from whatever the "lesee" may have specified in their rental agreements. I also do not believe that the Ron Paul Campaign would have prohibited firearms. Our MAJOR issue is that we were asked to leave under the pretext of SMC 10.10.050 which we were exempt from per state law. Therein lies our issue. We did not get a "Hey these guys in that room don't want guns in there, please don't go in...." We got a "Openly Carried Guns are against our policy, please leave the building!" which again, Orphan and I were exempt per state law... Hope that may clear it up a little....

-Thor
 

hadji

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With all due respect BigDave, I have spent several hours researching this topic, and I can not find anything in the Revised Code of Washington State (RCW's) or the Washington Administrative Code (WAC) that allows a tenant of a public facility to enforce a more restrictive "rule" than the state has enacted.

Am I missing something?
(Or perhaps, more correctly, what am I missing?)

hadji
 

Grapeshot

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Thor - yes it does -appreciate the clarification.

An audio recording does wonders in these instances - good luck with your quest.
 

BigDave

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With all due respect BigDave, I have spent several hours researching this topic, and I can not find anything in the Revised Code of Washington State (RCW's) or the Washington Administrative Code (WAC) that allows a tenant of a public facility to enforce a more restrictive "rule" than the state has enacted.

Am I missing something?
(Or perhaps, more correctly, what am I missing?)

hadji

As a tenant who rents that space for a period of time, yes as they have control of that space as any private business or private party that can restrict most anything and unfortunately, firearms.
 

Vitaeus

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The part we need to get enforced is that the municipality cannot put standard language in their contracts with the private parties to limit firearm access, leave it up to the private party to ad or require that limitation.
 

hadji

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The Spokane Public Facilities District does not do that now.
 
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hadji

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As a tenant who rents that space for a period of time, yes as they have control of that space as any private business or private party that can restrict most anything and unfortunately, firearms.

Again, with respect: The Spokane Public Facilities District does not "rent" or "lease" the Spokane Arena;
they specifically state in their use agreement that "The parties understand this agreement constitutes a revocable license and not a lease."
(Use Agreement, Spokane Public Facilities District, Section 29, Paragraph 1)

An important, if subtle, distinction.

A legal definition of a license is: A right to enter onto land or property and use it, without any ownership rights being conferred.

This distinction would not seem to grant the licensee any special priviledges regarding the State Preemption (RCW 9.41.290).

But again, I am quite willing to listen to your considered opinion in this matter.
But even better, can you quote a code or statute that proves your opinion that such a person / entity can enforce the more restrictive "rule"?

Please understand that I am not challenging you or confronting you;
I am merely assembling technically accurate information.
Thank you.

hadji
 

BigDave

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It is pretty clear you have a bone to pick and unable or unwilling to understand the concept of the RCW 9.41.300 addressing weapons possession is restricting Cities, towns, and counties or other municipalities and not private parties, you will not find a law prohibiting a private entity in restricting guns rights, unfortunately.

It comes down to protections under The Federal Civil Rights Act guarantees all people the right to "full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin." unfortunately Firearms is not protected class yet and maybe some day it will be.

hadji I looked to see where you live, could have fooled me! you being so passive aggressive! thought you were from the inter circle in Deep Liberal Seattle.
Not to challenge you, just to make sure not a troll :lol:
 
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jt59

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The chief law enforcement officer of the state of Washington has already issued a formal written opinion on this issue.

AGO 2008 No. 8 - October 13, 2008
http://atg.wa.gov/AGOOpinions/opinion.aspx?section=archive&id=21188



The AGO Opinion goes on to talk about a Washington Supreme Court case, Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342, 144 P.3d 276 (2006), where the municipalities are granted exemptions to preemption under 9.41.290 but only when acting in capacity as a private business owner and only in narrow respects.



So the long story short is that if the city leases the property out to a private party, they can impose certain conditions on the private party in the lease, which may restrict firearms on the premises, or have specific regulations for firearms on the premises (such as all actions locked open and unloaded during a gun show on city property) but that they cannot restrict the general public under normal business.

So unless the Ron Paul rally had a no firearms clause in the lease, the city cannot restrict firearms. Call me crazy, but I doubt that the Ron Paul rally organizers would have asked for a no firearms clause in the lease. And as it was not a gun show, I doubt that the city imposed certain restrictions on the method of firearm carry or entry with a firearm.


I've been 'round and 'round with the Spokane Arena and the Spokane Convention center about this and each time their tactic changes. As there's already a formal written opinion on the issue, we're never going to get results unless we have a large number of open carriers denied access to the convention center during a paid admission event for which we have tickets, and then file a class-action suit against the City of Spokane. (It would have to be an event that is not an outdoor concert, of course.) With the AGO already having an opinion on the issue, you'd have to seek an injunction against the city in the suit to get anything changed, as appealing the decision would be pointless. Preemption is preemption and it is already settled law. We just need to get the city to respect that.

All good, except that OC'rs are not a recognized "Class" and would be unable to accomplish this, as I understand it... BIANAL
 

Grapeshot

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--snip--

hadji I looked to see where you live, could have fooled me! you being so passive aggressive! thought you were from the inter circle in Deep Liberal Seattle.
Not to challenge you, just to make sure not a troll :lol:

Living outside the immediate geographical area in no way limits having an opinion or sharing ideas on the subject. Neither does it make someone a troll. That and I'm sure there are very pro RKBA people in Seattle; some undoubtedly support OC.

We are all in this together - what happens in one state has a ripple effect on other states.
 

amlevin

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Sounds to me like the only way Spokane is going to change is if someone is cited ends up in court. Only when they loose, due to "preemption" will they back off.

JT59, OC'ers can be recognized as a Class if it can be shown that they are all similarily effected by the City's actions. Would probably require some financial harm as a result of their being denied access, arrested, etc. as class action suits are civil actions for redress.

Of course IANALBIWA456EOLAO

(I am not a lawyer but I watched all 456 episodes of Law and Order:)
 

Jeff Hayes

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The Spokane Public Facilities District operates the Spokane Convention Center and is a municipal corporation. It is an independent taxing authority and a taxing district as defined in the state Constitution. IMHO Because SPFD is a municipality they must comply with RCW 9.41.290 and 300.

The question is can SPFD add no guns language to their lease or license agreement. If so the question is how would the public know, I asked to see the lease and for a copy of the lease and they refused saying it was private and I could not see or have a copy.

Some of the doors had 8 x 11 pieces of paper that referenced Title 10 section 10.10.050 and said "No person shall bring into any City public assembly facility any cans, bottles, alcoholic beverages, controlled substances, guns, knives or other such devices which are weapons or apparently capable of use as weapons". The door we entered through did not have a sign on it. Clearly SMC 10.10.050 violates state preemption and this was what we were told to start with

BTW I did record the conversation.

I will be contacting counsel today to see how to proceed with this.

One last thing the ushers asked us if they were going to be on our blog, so they are aware of OCDO.
 

sudden valley gunner

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Living outside the immediate geographical area in no way limits having an opinion or sharing ideas on the subject. Neither does it make someone a troll. That and I'm sure there are very pro RKBA people in Seattle; some undoubtedly support OC.

We are all in this together - what happens in one state has a ripple effect on other states.

Well said Grapeshot.

I have been dismayed at the rudeness some posters of shown out of staters here. I was never treated like this in Virginia or California or the other states even when I mentioned how things in my home state as a point of reference.
 
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