Judge dismisses challenge to Durkan emergency order during protests

The city got a legal win in court today, as U.S. District Court Judge Brian Tsuchida dismissed a lawsuit alleging that Mayor Durkan’s May 30th Emergency Civil Order violated the plaintiff’s constitutional right to carry a gun.


The emergency civil order prohibited the possession of weapons, including guns, and the plaintiff argued that this violated his Second Amendment rights. He also argued that the order violated the Seattle Municipal Code’s procedures fro civil emergency orders, and that it was pre-empted by the state law that forbids local regulation of firearms.

The city argued in response that:

  • the case is moot because the order was rescinded on June 18;
  • it did not infringe upon federal and state constitutional protections; and
  • the order is not subject to pre-emption, because it isn’t an ordinance.

The judge sided with the city on nearly all points.

On the mootness argument, a rescinded order or law is presumed to be moot unless it was in effect for too short of a period of time to allow for legal challenges, and there is a reasonable expectation that the plaintiff could be subject to it again in the future. The judge found that the first test was satisfied — it was only in place for 18 days — but the second test was not. He concluded that “it is speculative to suggest that these same circumstances will occur again.”

As for the constitutional protections, the judge invoked the Ninth Circuit’s test for the Second Amendment, and found that it met the required “intermediate level of scrutiny” in that the government’s state objective is significant, substantial or important, and there is “a reasonable fit between the challenged regulation and the asserted objective.” In this case the emergency civil order was “directed at limiting the very tools and weapons being used to attack officers, vehicles and buildings, and generally threatening public safety,” which he found to be related to the important government interest of maintaining public order.

On the pre-emption allegation, the judge found that the state legislature did not intend for its pre-emption on local firearms regulation to prohibit an emergency civil order “narrowly tailored to protect the public during a dangerous demonstration,” and thus there was no basis for concluding that the emergency order is “a conflicting local criminal code regulating the general public’s possession of firearms.”

Judge Tsuchida cold have simply ruled on the mootness issue and stopped there; however he probably assumed that the case will be appealed, so he went ahead and ruled on the other issues raised so the appeals court can deal with them all at once. However, the plaintiff is representing himself without an attorney, so there’s a good chance the case will end here without further appeals.



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