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AGO 1983 No. 14 - July 28, 1983
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COUNTIES - CITIES AND TOWNS - FIREARMS - POLICE POWER - REGULATION OR PROHIBITION OF HANDGUNS OR OTHER FIREARMS BY COUNTIES, CITIES OR TOWNS

(1) The provisions of § 12, chapter 232, Laws of 1983, prohibiting cities, towns and counties from enacting local laws and ordinances which are inconsistent with, or more restrictive than, that 1983 act do not bar such a municipality from regulating or restricting the possession or use of firearms in specified places (such as taverns, cocktail lounges, public and private schools and institutions of higher learning, municipal and superior court rooms, or city and county jails by visitors and inmates) -even by one who has lawfully obtained a state concealed weapons permit.

 (2) The provisions of RCW 9.94.040 and 9.94.043, relating to the possession of firearms on the premises of state penal or correctional institutions, do not apply to county or city jails.

 (3) Although a superior court may, under certain circumstances, order the forfeiture of a firearm possessed by one who was under the influence of intoxicating liquor pursuant to § 6(1)(d), chapter 232, Laws of 1983, the aforesaid act does not make the mere possession of a concealed weapon by such a person a misdemeanor.

                                                               - - - - - - - - - - - - -

                                                                     July 28, 1983 

Honorable Al Williams
St. Sen., 32nd District
4801 Fremont Avenue N.
Seattle, WA 98103

Cite as:  AGO 1983 No. 14                                                                                                             

Dear Sirs:

            By recent letter you posed several questions relating to the possession of firearms and the regulation thereof by counties, cities or towns.  Specifically, you asked:

             "(1) Are cities and counties authorized to enact or enforce local ordinances banning firearms and other dangerous weapons from taverns, cocktail lounges, public and private schools and institutions of higher learning,  [[Orig. Op. Page 2]] municipal and superior courtrooms, and from city and county jails by visitors and inmates, notwithstanding Section 12 of SSB 3782?

             "(2) Do RCW 9.94.040 and 9.94.043 already ban the possession of firearms and other dangerous weapons by visitors and inmates of city and county jails, and juvenile detention centers?

             "(3) Notwithstanding Section 12 of SSB 3782, can cities and counties ban the possession of firearms and other dangerous weapons from taverns and cocktail lounges based upon the Twenty-First Amendment to the U.S. Constitution and local police powers granted under Article XI, Section II of the Washington State Constitution?

             "(4) Does the prohibition in RCW 9.41.270 on 'carrying. . .any firearm. . . in a manner, under circumstances, and at any time and place that . . .warrants alarm for the safety of other persons,' together with the provision in Section 6(1) (d) of SSB 3782 for forfeiture of any firearm carried concealed on a person who is under the influence of alcohol, constitute adefacto ban on possession of firearms in taverns and cocktail lounges (except by employees, security guards, and law enforcement officials) such that any local ordinance expressly banning such possession in taverns and cocktail lounges would not be 'more restrictive than, or exceed the requirements of state law,' within the meaning of Section 12 of SSB 3782?"

             "(5) Does the provision in Section 6(1) (d) of SSB 3782 for forfeiture of any firearm carried concealed while intoxicated, together with the reference in Section 6(3) to 'a violation of subsection (1) of this section,' goether [together] with the provision of this chapter. . . shall be a misdemeanor,' amount to adefacto provision that carrying a firearm concealed while intoxicated shall be a misdemeanor."

             We respond in the manner set forth below.

              [[Orig. Op. Page 3]]

                                                                     ANALYSIS

             We will, in this opinion, cover your questions in a somewhat different order than you have stated them.

             Questions (2) and (5):

             First, in response to question (2), the statutes you have cited deal only with the possession of firearms on the premises of a "penal institution of this state" (RCW 9.94.040) or a "state correctional institution" (RCW 9.94.043).  Therefore, although those statutes do, indeed, presently restrict the possession of firearms or other dangerous weapons by visitors and inmates of such state institutions, they have no applicability to county or city jails.

             Next, in response to your fifth and final question, it is likewise true that § 6(1)(d) of SSB 37821/ added a new section to chapter 9.41 RCW allowing a court to order the forfeiture (under certain circumstances) of a firearm possessed by one who was under the influence of intoxicating liquor.  But neither that provision nor anything in subsection (3) of § 6, supra (which you have also cited) goes on to declare the possession of a concealed weapon by an intoxicated person to be subject to any other sanction as a "violation" of the subject RCW chapter.  Therefore, we are unable to follow a line of reasoning which would result in a characterization of those provisions of the bill as amounting (in the words of your letter) ". . . to a defacto provision that carrying a firearm concealed while intoxicated shall be a misdemeanor . . ."

             Questions (1), (3) and (4):

             Your three remaining questions, in turn, all appear to us to raise a single basic issue.  In order to identify, and state, that issue we must first make note of two prior opinions of this office.  They are AGO 1982 No. 14 and our letter opinion of May 4, 1979 to then State Representative Eric Rohrbach, copies of both of which are enclosed for your immediate reference.

             In the earlier of those two opinions we concluded that the then existing provisions of chapter 9.41 RCW did not preclude a county, city or town, in the exercise of its constitutionally  [[Orig. Op. Page 4]] granted police power,2/ from enacting an ordinance prohibiting the possession of a firearm in any establishment serving intoxicating liquor.  And, in AGO 1982 No. 14,supra, itself, we applied the same reasoning in the process of advising you that:

             "A county, city or town police power ordinance prohibiting the possession of firearms, including handguns, on public or private school grounds or college campuses within its territorial jurisdiction would be valid because such an ordinance wouldnot be in conflict with state law under the applicable, judicially enunciated, test."

             The underlying rationale for both of those opinions was, quite simply, that the issuance of a concealed weapons permit under RCW 9.41.070 does not give rise,

             ". . . to an unqualified right to be in possession of such a weapon at any time or any place within the state -local police power regulations adopted pursuant to Article XI, § 11 of the state constitution to the contrary notwithstanding. . ."

             Now, however, by its enactment of § 12 of chapter 232, Laws of 1983 (SSB 3782),supra, the legislature has provided that:

             "Cities, towns, and counties may enact only those laws and ordinances relating to firearms that are consistent with this chapter.  Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted."

             The essential issue raised by your first, third and fourth questions, as we view it, is whether this provision constitutes such a withdrawal of municipal police power as to require a reversal of the conclusions which we stated in AGO 1982 No. 14 and our May 4, 1979 letter opinion, supra; i.e., that counties, cities and towns may regulate or restrict the possession or use of firearms in specified places -even by one who has lawfully obtained a state concealed weapons permit.

             We think not and, accordingly, we adhere to those prior opinions.  Although the legislature, by its enactment of chapter  [[Orig. Op. Page 5]] 232, supra, made a number of changes in the laws governing the issuance of concealed weapons permits we find nothing therein which purports to alter the nature of such a permit itself.  A concealed weapons permit still does not, by virtue of anything contained in the subject enactment, give rise to an unqualified right to be in possession of such a weapon at any time or any place within the state -local police power regulations adopted pursuant to Art. XI, § 11 of the State Constitution to the contrary notwithstanding.  Therefore, even though the legislature has now expressly prohibited counties, cities or towns from enacting not only those ordinances which are "inconsistent" with state law (a local governmental action which was already prohibited by the constitution) but, as well, those which are "more restrictive" (an area open, under the constitution, to legislative discretion), it has not so altered "state law" itself as to cause the kinds of local ordinances which we sanctioned in our prior opinions now to be either "more restrictive" or "inconsistent" therewith.

             Otherwise stated, although its overall scope may have been misunderstood by some members of the legislature, this new (1983) law does not purport to deal with the question ofwhere (i.e., in what places) a handgun may be carried.  Thus, while we fully agree with the statement made by Senator Talmadge, one of the measure's prime sponsors, during debate on final passage in the Senate that the state, by § 12,supra,

             ". . . preempts the field in the areas that we've dealt with in this bill . . ."

 the locus, or place, issue is simply not one of those areas.  Indeed, neither chapter 232 nor the RCW chapter to which § 12 thereof was added (chapter 9.41) deal with that issue from the standpoint of identifying particular places (or kinds of places) whereconcealed weapons may lawfully be carried.  Even RCW 9.41.270, which you have cited in your fourth question, refers only in the abstract to the possession or use of those or other described weapons ". . . under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons."  (Emphasis supplied) Moreover, since that section of the law is also a prohibition section (a violation of which constitutes a gross misdemeanor) -and not a grant of permission -we believe in any event that it actually lends further support to the validity of a local ordinance banning possession at the kinds of places (schools, courtrooms, city and county jails, taverns or cocktail lounges) with which you appear to be concerned.  Such an ordinance, although  [[Orig. Op. Page 6]] more specific than the state law, would seem to us to be entirely in accord with the underlying thrust of RCW 9.41.270, supra.  Basically, what the ordinance would be aimed at would be an identification of certain described kinds of places where possession or use of a firearm would particularly (in the words of the statute) ". . . warrant . . . alarm for the safety of other persons."

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General

!np!ag1  [[Orig. Op. Page 1]]

                                                              September 22, 1983

Honorable Al Williams
St. Sen., 32nd District
4801 Fremont Avenue North
Seattle, Washington 98103 

Dear Senator Williams:

             I am writing this letter as an addendum to AGO 1983 No. 14, which was issued to you on July 28, 1983.  I am doing so for two reasons.

             First, I think it appropriate to review and report on the subsequent decision of the Court of Appeals in Second Amendment Foundation, et al. v. City of Renton, 35 Wn.App. 583 (1983), wherein the Court reached the same basic conclusion as we did in our opinion.  And second, I believe it also necessary to add a note of caution for those who may be inclined to read AGO 1983 No. 14 itself too broadly.1/

              The critical issue involves the very limited preemptive effect of the language employed in § 12 of SSB 3782 (now chapter 232, Laws of 1983).  It has, unfortunately, become apparent to us since AGO 1983 No. 14 was issued that some proponents and many supporters of that bill were misled into thinking that the language of § 12 was sufficient to prevent the continuing enactment or enforcement of local ordinances addressing the kinds of places where weapons might be possessed -with or without a permit.  Such ordinances, in the minds of many, have led to a confusing patchwork of prohibitions from one locality to the next, across the state.

             It is necessary, therefore, to briefly discuss the concept of preemption.

             It is most certainly within the power of the legislature to effect a policy that such a patchwork situation will not exist.  If the legislature intends to accomplish this policy through the technique of "preemption" there are numerous judicial decisions,  [[Orig. Op. Page 2]] both within our own state and elsewhere, that contain examples of appropriate terminology that should be used.  For, quite simply, preemption indicates a complete take over of a field of activity to the exclusion of all local actions, regulations or interference -and thus, if that is the intention of the legislature, the best and most effective way to manifest that intent would be to use the term "preemption" or "occupies the field" or similar terms.  See,P. Lorillard Co. v. City of Seattle, 8 Wn.App. 510, 507 P.2d 1212 (1973).  Neither term, however, was used in the case of § 12 of SSB 3782,supra.2

              With that in mind let me next turn to the recent decision inSecond Amendment Foundation, et al. v. City of Renton,supra.  There, citing most of the same cases and using the same line of reasoning employed in our prior opinions on this general question, the Court upheld an ordinance of the City of Renton limiting possession of firearms in places where alcoholic beverages are dispensed by the drink.  In so doing, the Court specifically identified one of the questions presented on appeal as follows:

             "Is [the ordinance] preempted by state law governing the issuance of licenses to carry concealed pistols, as provided for in RCW 9.41?"  (35 Wn.App. at 585)

             The Court then answered that question in the negative for the following stated reasons:

             "The Uniform Firearms Act, RCW 9.41, proscribes possession of pistols by those convicted of crimes of violence.  It prohibits sale to drug addicts, habitual drunkards and persons under the age of 21, and regulates the method of sale.  It further provides for a license to carry a pistol concealed on the person.  A careful examination of the Uniform Firearms Act, RCW 9.41, demonstrates no express preemption concerning the possession of firearms on premises where liquor is sold by the drink.  The Legislature has not indicated an intention to preempt municipal regulation in all areas of gun control.3/  The power of municipalities to so legislate survives . . .

              [[Orig. Op. Page 3]]

            "The other test of preemption is whether the ordinance permits or licenses that which the statute forbids, or the statute permits or licenses that which the ordinance forbids.  Bellingham v. Schampera, supra, at lll.  Our statutes do not expressly state an unqualified right to be in possession of a firearm at any time or place.  The Renton ordinance does not purport to contradict or restrict any provision of the statute.  Therefore, the statute and ordinance are not inconsistent.

             "While an absolute and unqualified local prohibition against possession of a pistol by the holder of a state permit would conflict with state law, an ordinance which is a limited prohibition reasonably related to particular places and necessary to protect the public safety, health, morals and general welfare is not preempted by state statute."  (35 Wn.App. at 588-89)

             In addition, most significantly, the Court footnoted its opinion by including the following reference to § 12 of SSB 3782, supra:

             "3/Since oral argument in this case, the Legislature added a new section to RCW 9.41, to be effective July 24, 1983.  Laws of 1983, Ch. 232, § 12.  This provision prohibits the enactment of local ordinances inconsistent with the requirements of RCW 9.41.  It does not militate against the result reached here."  (Emphasis supplied)  (35 Wn.App. at 588)

             In short, the Court of Appeals thus confirmed the conclusion which we had reached in AGO 1983 No. 14 less than a month earlier.  Our opinion, in turn, was simply a prediction as to how the question would be resolved in formal litigation, based upon the language used by the legislature in § 12 of the subject enactment.3/

              [[Orig. Op. Page 4]]

            And, in this instance, our prediction turned out to be entirely accurate.  It thus now seems even more apparent than it did to us before, that whatever some of the sponsors and/or proponents of SSB 3782 may have hoped its legal effect would be, that legislation did not preempt all local control of the possession and use of firearms -within even certain specified places.

             Indeed I think it worthy of note, in passing, that during the 1983 session somewhat more specific preemptive language was actually suggested to the sponsors of SSB 3782 by certain proponents of the elimination of local gun control laws.  Those individuals have further pointed out to us, however, that they were then advised by one of the prime sponsors that such additional, specific language would be unnecessary since the bill, as then drafted, already was said to have the same legal effect.  We have no reason to doubt the veracity of this account.  But it only harkens back to the lament of Lord Halsbury who, after having earlier drafted a certain statute, thereafter found himself having to interpret it as a judge.  Whereupon, he said:

             ". . . I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting.  He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed."  Hilder v. Dexter [1902] A.C. 474, 477.

             This brings me, however, to the second aspect of this addendum.  As noted at the outset, I believe a word of caution is also clearly in order following the decision inCity of Renton.  While the Court in that case held that local police power control over places in which one may be in possession of a firearm is not preempted by general state law, the Court also indicated (rather clearly, I think) that such control is by no means "open-ended."  Instead, it is fairly constrained.  Thus, in emphasizing that the ordinance there involved was limited to places where liquor by the drink was dispensed, the Court implied the general principle that the right to own and bear arms is only subject to minimal abridgement under any circumstances, saying:


             "Regulations enacted by a municipality in the exercise of its police powers must meet the judicial test of reasonableness.  This test requires that the regulation be reasonably necessary to protect the public safety,  [[Orig. Op. Page 5]] health, morals and general welfare and be substantially related to the legitimate ends sought. . .

             "The scope of permissible regulation must depend upon a balancing of the public benefit to be derived from the regulation against the degree to which it frustrates the purpose of the constitutional provision.  The right to own and bear arms isonly minimally reduced by limiting their possession in bars.  The benefit to public safety by reducing the possibility of armed conflict while under the influence of alcohol outweighs the general right to bear arms in defense of self and state.  The Renton ordinance isnarrowly drawn and demonstrates legislative concern for reasonable exercise of the police power where liquor by the drink is dispensed. . . ."  (35 Wn.App. at 586-87) (Emphasis supplied) (Citation omitted)

             Accordingly, those who may have interpreted AGO 1983 No. 14 as an invitation to local governments to enact broad-based ordinances greatly restricting the places and circumstances under which the right to keep and bear arms may be exercised (something, incidentally, which we did not say and did not intend to imply) should be cautioned that an approach of that sort is not consonant with the law -especially after City of Renton.  Rather, in enacting local ordinances restricting firearm possession on certain premises, local governments should be keenly aware that a demonstrable net benefit to public safety is required in order to justify any abridgement of the constitutionally-recognized right to own and bear arms.4/

              [[Orig. Op. Page 6]]

            It is hoped that the foregoing additional analysis on the primary issue covered by this office in AGO 1983 No. 14, supra, will be of further assistance to you.

                         Very truly yours,
            KENNETH O. EIKENBERRY
            Attorney General 

                                                         ***   FOOTNOTES   ***

 1/Now chapter 232, Laws of 1983.

 2/See Wash. Const., Art. XI, § 11.

 1/Enclosed for you immediate reference are copies of our opinion and the court decision.  I would also point out that this office did not participate in the Second Amendment Foundation litigation.

 2/We would, of course, be happy to assist the legislature in drafting such a legally effective preemption clause.

 3/In performing the function of rendering legal opinions pursuant to RCW 43.10.030, we are not in a position to "take a stand," as a matter of policy, on the issue presented.  Rather, a reasoned prediction of the outcome if the matter were to be litigated is all that we attempt to provide in Holmes, "[t]he prophesies of what the courts will do, in fact, and nothing more pretentious, are . . . the law."  Holmes,The Path of the Law, 10 Harv. L.R., 457, 461 (1897).

 4/In AGO 1983 No. 14, we dealt with four specific examples of places which local regulations might attempt to cover -all of which you also mentioned in your request; i.e., cocktail lounges and taverns, county and city jails, school premises and courtrooms.  And, based upon the above set forth analysis ofCity of Renton, it now appears that differing considerations may govern the validity of an ordinance pertaining to each such type of place.  As to taverns and cocktail lounges, of course, the Renton case specifically recognized a public safety benefit realized by reducing the possibility of armed conflict while under the influence of alcohol.  That same considerations might, or might not, validate a local ordinance generally limiting the possession of firearms on the premises of county jails or at educational institutions.  Quite possibly, specific factual findings would be in order, in each instance, in the enactment of the particular ordinance.  As for the validity of a local ordinance limiting the possession of firearms by spectators in courtrooms while the court is in session, we would think that such an ordinance could well be found to be reasonably related to the safety of the judiciary, the litigants and other persons present. 

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