Council passes gun safety regulation; on to court

This afternoon the City Council passed an ordinance requiring gun owners to securely store their firearms at home when not being carried. As I wrote previously, this is a perfectly reasonable idea, but it’s beyond the authority of the city to enact it because state law preempts cities from passing their own gun regulations.

This afternoon in an interview I asked City Attorney Pete Holmes for his legal argument as to why the city has the power to enact this ordinance in the face of a state law that clearly prohibits it.

Before we go down this legal rathole, let’s remind ourselves of what the state law says:

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with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Here’s my brief interview with Holmes:

SCCI: On the gun safety regulation, state law says that the city is preempted from gun regulation. How exactly is that going to work?

Holmes:  the exact same argument was made about our gun violence tax. And…

SCCI: but that was a tax. This is not a tax. Explain to me how a law saying you must lock up your gun is not a gun regulation.

Holmes: We believe that this is not among the specific list of…

SCCI: The law says “the entire field, including these areas, and any other elements.”

Holmes: We believe that because there was a definitive list, just as the Supreme Court did with the tax, look at their analysis, and not just the fact that it was labeled a tax. When a legislature uses a specific list of things that are included, that which is not included is excluded. Storage was not included, and we believe that we will ultimately prevail. So it’s really that simple.

SCCI: So you ignore the “entire field” part of it.

Holmes: That is simply not the way the preemption analysis goes. For there to be even considered preemption, the legislature has to first occupy the field. But then when they go on to specify the specific areas that are preempted, that controls. You wouldn’t even have the analysis but for a finding by the legislature that it intends to preempt the field. And then the exclusive list is what is preempted. And anything that is not on that list is excluded.

SCCI: So you feel comfortable going to court. Because clearly it’s going to end up in court.

Holmes: You know, I recognize there’s risk. I recognize that reasonable minds disagree. But I think that we are in the right and I think that the court will give us deference, give our legislature deference, as well as the state legislature.

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Let’s unpack that.  Holmes is arguing that the legal issue is one of “statutory construction,” i.e. how to properly parse and interpret the text of the statute so that it is both meaningful and rational. There is a substantial body of case law involving statutory construction that guides our analysis of the issue.

The high-level question here is simple: what exactly does this statute preempt? In the “gun violence tax” case that Holmes refers to, the Supreme Court ruled that the city’s tax on firearms and ammunition is a tax, not a regulation, and therefore is not covered by this statute because it only claims to preempt “gun regulation,” not “gun taxes.” However, in the case of this new gun-storage ordinance, Holmes is making a different argument, centered on the fact that the statute names a list of specific areas: “registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms.” Holmes asserts that that even though “gun storage” is obviously a form of gun regulation, since the statute doesn’t specifically name “gun storage” in its list, it therefore isn’t preempted. In legal terms, he is saying that the list is exclusive, not exemplary: that it was the legislature’s intent to exclude any areas not explicitly mentioned in the list. This is the principle of expressio unius: when one or more things of a class are mentioned, other things of that class are excluded.

The large body of case law on statutory construction asserts several principles that point out the weaknesses in Holmes’ argument. Among them:

• The “plain meaning” rule. First and foremost, if a statute plainly says something, it should be interpreted that way. In this case, it says that “the entire field of firearms regulation” is preempted, “including” some specific areas. It also says that any local laws regarding firearms must be “specifically authorized by state law.”
• Avoid making parts of the law superfluous. According to the U.S. Supreme Court, “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” In this case, if the list were interpreted as exclusive, then not only would the “entire field” phrase become meaningless, but also “or any other element relating to firearms.”
• Statutes should be interpreted as a coherent whole.  Judges are required to interpret laws so that no part is in conflict with another part. In this case, that means reading “the entire field” at face value, the list as exemplary, “any other element” as a catch-all, and the later sentence saying that any gun regulation must be specifically authorized by state law as consistent with interpreting the list as exemplary.  Any other interpretation makes the statute absurd.
• Expressio unius has its limits. Specifically, the Supreme Court has ruled that it can be overcome by “contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion.” In this case, there are plenty of indications that the state legislature didn’t mean to signal exclusion; it wanted to make it very, very difficult for a city to enact any gun-related regulations at all.

It’s worthy of note that this is the city’s only argument in defense of the ordinance — or at least the only one they have stated publicly. They aren’t claiming that gun storage isn’t a form of gun regulation. They aren’t challenging the constitutionality of the state law preempting local gun regulation, as they did in the income tax case, or that the legislature improperly enacted it. They are simply saying that the list in the state law is exclusive, and because it doesn’t include gun storage, the city is free to regulate it. It’s a terrible argument, and it’s destined to fail.

The bottom line here is that City Council member Lorena Gonzalez, Mayor Jenny Durkan, and City Attorney Pete Holmes have all signed on to promote an ordinance that is inevitably going to be struck down in court. To some extent, Holmes has no choice: it’s his job to defend the enacted laws of the City of Seattle. But Gonzalez and Durkan are also both attorneys — very good ones — and they know this law won’t stand up to judicial scrutiny.  The only reasonable interpretation is that they are doing this for political reasons, either to score points with their supporters, or to put public pressure on Olympia to step up. Either way, fighting a losing battle in court defending this ordinance will cost the city time and taxpayers’ money, money that could otherwise be spent on addressing homelessness, transportation, or affordable housing.