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AGO 1984 No. 27 - November 16, 1984
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COUNTIES ‑- CITIES AND TOWNS ‑- FIREARMS ‑- POLICE POWER ‑- REGULATION OF FIREARMS POSSESSION BY PERSONS UNDER THE INFLUENCE OF ALCOHOL OR OTHER DRUGS 

(1) The validity of a local ordinance making it either a criminal or civil offense to be in possession of a firearm while under the influence of alcohol or other drugs will not turn on RCW 9.41.290, in the sense that such a local ordinance is, or is not, thereby statutorily preempted; instead, it will depend upon the effect which a particular ordinance has on constitutionally-protected rights.

(2) A local ordinance providing for the mandatory forfeiture of a firearm in the possession of one who is intoxicated would be within the purview of RCW 9.41.290 and, therefore, would be required to be consistent with its state statutory counterpart (RCW 9.41.098) in order to be legally effective.

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

                                                               November 16, 1984 

Honorable Al Williams
State Senator, 32nd District
4801 Fremont North
Seattle, Washington 98103

Cite as:  AGO 1984 No. 27                                                                                                                

 Dear Senator Williams:

             By recent letter you requested our opinion on the following questions relating to local gun control:

             "(1) Are cities and counties preempted by RCW 9.41.290, 'Consistency of local law,' from enacting and enforcing an ordinance making it a criminal offense to be in possession of a firearm while intoxicated on alcohol or other drugs?

             "(2) Are cities and counties preempted from enacting and enforcing an ordinance making it acivil offense to be in possession of a firearm while intoxicated, with a maximum fine of $500?

             "(3) Are cities and counties preempted from enacting and enforcing an ordinance requiring the permanent forfeiture  [[Orig. Op. Page 2]] of the firearm used or possessed in violation of a local firearm ordinance?"

                         We respond in the manner set forth in our analysis.

                                                                      ANALYSIS

             RCW 9.41.290, which codifies § 12, chapter 232, Laws of 1983, provides 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."

             We have, as you know, previously expressed our opinion regarding the impact of that 1983 statute on the adoption of local ordinances regulating or prohibiting the use or possession of firearms at, in, or under particular times, places or circumstances.  See, AGO 1983 No. 14 and the later addendum thereto (copies enclosed) which were written to you approximately a year ago; and see also, Second Amendment Foundation, et al. v. Renton, 35 Wn.App. 583 (1983).  What we there said, in essence, is that RCW 9.41.290, supra, does not bar a county, city or town, in the exercise of its police power,1/ from adopting local gun control ordinances relating to specific times, places or circumstances when deemed to be necessary for public safety.  In so concluding, however, we also cautioned (at page 5 of the addendum) that,

             ". . . 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 justifyany abridgement of the constitutionally-recognized right to own and bear arms."

             We also note that while further legislation on the subject was thereafter considered during the subsequent, 1984, session no such legislation, amending or refining RCW 9.41.290,supra, has since been enacted.

              [[Orig. Op. Page 3]]

            Questions (1) and (2):

             We will deal with your first two questions together since our answer in no way depends on the nature of the sanctions, criminal or civil, involved.  Based on the reasoning of AGO 1983 No. 14, supra, it is our opinion that the validity of a local ordinance making it either a criminal or a civil offense to be in possession of a firearm while under the influence of alcohol (or other drugs) will not turn on RCW 9.41.290,supra‑-in the sense that such a local ordinance is, or is not, thereby statutorily preempted.  Instead, it will depend upon the effect which a particular ordinance has on constitutionally-protected rights.  Moreover, we should also point out once again that the applicable constitutional provision isnot the Second Amendment to the United States Constitution.  For as we have previously explained, that provision is a limitation on the federal government and not the states or municipalities.  See,Presser v. Illinois, 116 U.S. 252 (1886).  Rather, it is Article I, § 24 of our own State Constitution which reads as follows:

             "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."

             In turn, the right to bear arms which is recognized by that provision of our State Constitution has consistently been held by the Washington Supreme Court to be subject to reasonable regulation by the state (or, by implication, a municipality) in the exercise of its police power.  See,e.g.,State v. Krantz, 24 Wn.2d 350, 164 P.2d 453 (1945) and cases cited therein.

             One relevant factor, under that constitutional analysis, would logically be the extent of intoxication needed under the particular ordinance in order to give rise to a violation.  Also, the presence or absence (in the ordinance) of exceptions covering various exigent circumstances could likewise be significant to a court in determining the constitutionality of the particular local ordinance.  Obviously, however, we would need to see the actual text of the ordinance in order to further evaluate it in line with such criteria.

              [[Orig. Op. Page 4]]

            Question (3):

             Conversely, your third question (as above stated) does present the possibility of a statutorily-prohibited (RCW 9.41.290) conflict between local and state law.  That question asks:

             "Are cities and counties preempted from enacting and enforcing an ordinance requiring the permanent forfeiture of the firearm used or possessed in violation of a local firearm ordinance?"

             We assume that the local ordinance thus violated would be one (such as is contemplated by your first two questions) making it unlawful to be in possession of a firearm while intoxicated.  In that context, however, we believe that mandatory forfeiture of the firearm‑-without regard to the degree of intoxication‑-would be inconsistent with RCW 9.41.098(1)(d) which reads as follows:

             "(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

             ". . .

             "(d) Found concealed on a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, having 0.10 percent or more by weight of alcohol in his blood, as shown by chemical analysis of his breath, blood, or other bodily substance;

             ". . ."

             Thus, unlike the matter of specified times, places and circumstances where a concealed weapon or other firearm may or may not be possessed, the subject of forfeiture for certain stated reasons‑-including intoxication‑-is a part of the chapter 9.41 RCW mileau.  Accordingly, RCW 9.41.290 applies and requires that the local ordinance be consistent with its state statutory counterpart (in this instance, RCW 9.41.098,supra) in order to be legally effective.

              [[Orig. Op. Page 5]]

            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

                                                         ***   FOOTNOTES   ***

 1/See Wash. Const. Art. XI, § 11.

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