Preemption vs. Local Ordinances

You may have seen the news about Chief of Police Loren Culp, who turned the tables on liberal legislators by declaring his Washington State town of Republic a “Sanctuary City” … for gun owners!

See the full story from the Yakima Herald.

According to the Yakima Herald, Chief Culp’s ordinance was proposed “in response to I-1639, which state voters approved earlier this month. [It] raises the age limit to buy some weapons from 18 to 21 and opens a gateway to prosecute people who sell guns to customers who can’t legally own them.”

There’s much more, including massive regulations on dealers and totally unenforceable “universal background checks” — even between two individuals. One particularly troubling regulation is on page 12 of I-1639:

NEW SECTION. Sec. 5. SECURE GUN STORAGE. A new section is added to chapter 9.41 RCW to read as follows:

(1) A person who stores or leaves a firearm in a location where the person knows, or reasonably should know, that a prohibited person may gain access to the firearm:

(a) Is guilty of community endangerment due to unsafe storage of a firearm in the first degree if a prohibited person obtains access and possession of the firearm and causes personal injury or death with the firearm…

Now, in fairness, there are additional sections that exempt the gun owner from liability under certain specific circumstances, including if:

(d) The prohibited person’s access to the firearm was obtained as a result of an unlawful entry, provided that the unauthorized access or theft of the firearm is reported to a local law enforcement agency in the jurisdiction in which the unauthorized access or theft occurred within five days of the time the victim of the unlawful entry knew or reasonably should have known that the firearm had been taken.

We would certainly hope so. After all, it is a fundamental principle of American common law that no person should be held criminally liable for the unlawful acts of another. However, the wording only says:

(a) The firearm was in secure gun storage, or secured with a trigger lock or similar device that is designed to prevent the unauthorized use or discharge of the firearm…

What constitutes “secure gun storage” is not clearly and unambiguously defined. And what kind of “similar device” (a safe, a locked wall-storage unit or gun rack, etc.) is not specified.

However, even if you escape criminal prosecution, there is no immunity in the law against civil lawsuits. If a storekeeper was shot by a 17-year-old gang member (who obtained the gun when he burglarized your home), the family would quite possibly be able to sue in civil court.

If that happens, a savvy plaintiff’s attorney would be happy to suggest to a jury that whatever means you used to secure your firearm was “inadequate” or even negligent. After all, he or she will argue, “If your gun had been secured properly, it wouldn’t have been stolen.”

The larger issue at stake is the concept of preemption — that federal and state laws take precedence over local ordinances. Local municipalities cannot enact more restrictive firearms-related laws, which is exactly what Seattle’s I-1639 does.

Opponents argue that Chief Culp is doing the same thing. Not so; his proposal is intended to contravene more restrictive laws, not enact them. It remains to be seen how this conflict will be resolved, but the chief should get credit for highlighting the problem.

More info:
Complete (30-page) text of I-1639

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