From Attorney Mark Knapp (Federal Way, WA)
http://markknapp.multiply.com/journ...tate_Agency_Protesting_Violation_of_State_Law
Dear Mr. Nacht:
David Poling has contacted me in order to respond to your e-mail dated April 2, 2009 relating to signs posted on the premises of Employment Security Department Offices in violation of the above referenced state firearms preemption statute that states as follows:
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with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.
Notwithstanding Title 50 RCW, the Department does not have the authority to enact rules that conflict with the Revised Code of Washington; i.e., RCW 9.41.290. RCW 9.41.300 which specifies locations that are off limits to visiting members of the public while otherwise lawfully carrying weapons. Cherry v Metro authorizes the Commissioner to promulgate workplace rules that only apply to employees of municipalities and government agencies.
The fact that you have cited RCW 9A.76.180 raises the issue of how a criminal statute that deals with intimidating a public servant relates to prohibiting members of the public from carrying a firearm in a public facility in a manner that is not otherwise unlawful.
As Mr. Poling has already informed you, State v Spencer and State v Gregory Casad stand for the principle that it takes more than merely carrying a weapon to constitute intimidation even where the weapon is in plain view of the public. Thus, even the displaying of a weapon in public only becomes illegal where there is intent to create fear. Since it appears that the sign of which Mr. Poling complained has already been removed, all of the above may be moot.
These are not merely academic questions, however. Many cities and branches of state government have been quietly subverting the clear intent of the above referenced legislative enactments. We urge you to consider the effect of illegal rules and regulations that inhibit law abiding members of the public from exercising the duty to protect our families from violence. The effect of inhibiting lawful carrying of weapons can only make public places more dangerous due to the foreseeable threat constituted by a person or persons that may enter “gun-free” premises and start shooting at members of the public and public employees.
Such a situation creates a dual risk to your Department. The legal liability resulting from violation of RCW 9.41.290 combined with the state’s failure to protect the Department’s customers from foreseeable harm is worth discussing further with the attorney general’s office and other legal counsel available to the Department. See also Attorney General Opinion 2008 No. 8 - October 13, 2008.
Thus, we share the Department’s concerns about safety. Nevertheless, the pattern for most shootings that occur in public places is that the shooter(s) seek out places that are considered No Gun Zones to commit gun crimes. The recent shooting over the weekend in Binghamton, NY demonstrate that, if an armed citizen had been present to confront the perpetrator, the loss of life might have been significantly less. Please note that an armed volunteer in Colorado church, Jeanne Assam, engaged a killer and stopped an attacker that had already killed four and certainly was prepared to kill many more.
The sign posted by the Department send the wrong message to those that abide by the law; the violent criminal will not obey the laws and exploit the opportunity for violence created when law abiding citizens obey your signs- signs that violate RCW 9.41.290 or create a chilling effect for legally armed citizens entering the premises.
Appropriate signage should include language such as “No Weapons; except as otherwise permitted by law”. Such language is already posted by public transit authorities in places such as the light rail that operates in Tacoma. Please consider this alternative in weighing the above referenced issues and let us know whether we can assist you in any way to clarify our position or provide further information. Mr. Poling is very concerned about many of the same issues that you are no doubt attempting to confront in formulating your risk management policies. Although honest differences of opinion will often exist, the legislature has already preempted opinions that conflict with the preemption statute within the field of firearms policy on and within public premises. Please call me if you wish to discuss these matters.
Sincerely,
Mark S. Knapp
Mark S. Knapp, Attorney at Law
