August 25, 2016
Port of Bellingham Commissioners
1801 Roeder Avenue
Bellingham, WA 98225
Re: Port of Bellingham Public Space Use Policies and Procedures
Dear Sirs:
I note that the above-referenced policies and procedures manual contains a provision that reads:
Firearms and Fireworks
The possession of firearms in or upon any Port public space is prohibited, except those in the possession of authorized law enforcement personnel.
Please be advised that this provision is in direct violation of RCW 9.41.290, which informs us:
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with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality. (Emphasis added)
RCW 9.41.300(2) provides that cities, towns, counties and other municipalities may enact ordinances restricting:
1. The discharge of firearms in any portion of their respective jurisdiction where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized; and
2. The possession of firearms in any stadium or convention center, operated by a city, town, county, or other municipality, except that such restriction shall not apply to:
a. Any pistol in the possession of a person licensed to do so under state law or exempt from the licensing requirement; or
b. Any showing, demonstration, or lecture involving the exhibition of firearms.
The Port of Bellingham was incorporated in 1903 and is a Washington State government entity; essentially a municipal corporation.
On October 13, 2008, the Washington State Attorney General issued a formal opinion (AGO) on the question of whether a city has "the authority to enact a local law that prohibits possession of firearms on city property or in city-owned facilities." 2008 Op. Att'y Gen. No. 8, at 1. In addressing the scope of the state's preemption of firearm regulation, the AGO analyzed the language of the statute, the legislative history, and case law, and concludes that RCW 9.41.290 preempts the authority of a city "to enact local laws that prohibit possession of firearms on city property or in city-owned facilities." 2008 Op. Att'y Gen. No. 8, at 1. The AGO states, in pertinent part:
To summarize, 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.
. . . .
While RCW 9.41.290 does not preempt all city authority with regard to firearms, it does preempt 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.
2008 Op. Att'y Gen. No. 8, at 1 (quoting RCW 9.41.290), 11.
In Chan v. City of Seattle, 164 Wash.App. 549, 265 P.3d 169 (2011), when addressing the specific question of whether a city, town, county or other municipality may enact a law or ordinance that prohibits the possession of a firearm on public property, such as parks and park facilities open to the public, as Seattle had so attempted, Division I of the Washington State Court of Appeals held that, except as specified in RCW 9.41.300, or when a city, town, county or other municipality is acting in a “proprietary capacity for private advantage” (see Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wash.2d 342, 144 P.3d 276 (2006)) (none of which is applicable here), except as expressly authorized by the legislature. As such, Division I held that Seattle’s firearms possession rule directed at conduct in public parks was in contravention to Washington statutory law.
The Port of Bellingham attempts to prohibit possession of firearms in the public spaces it manages. As the plain language of RCW 9.41.290 states, and as held in Chan, the State preempts municipalities from enacting laws and ordinances regulating the possession of firearms in public areas. The statute states that the "state of Washington hereby fully occupies and preempts the entire field of firearm regulation within the boundaries of the state" and broadly defines firearms regulations to include registration, licensing, possession, purchase, sale, and discharge. (Emphasis added). RCW 9.41.290 specifically addresses the limited authority of a municipality to regulate firearms wherein it states, in pertinent part:
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.
The Port’s policy that attempts to prohibit firearms possession in public spaces is ultra vires to its powers granted by the legislature, and is therefore in violation of statutory law.
Please accordingly amend the Port of Bellingham Public Space Use Policies and Procedures to be consistent with the laws of the State of Washington.
Sincerely,
CARPELAW PLLC
Robert S. Apgood
Cc: Washington State Attorney General
