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To carry or not to carry? South King Fire and Rescue's gun policy vs. state law

Is a decades-old South King Fire and Rescue district policy that bans the carrying of guns on its property contrary to state law?

As with most legal questions, there’s some ambivalence.

The issue was raised at a Feb. 22 meeting of the South King Fire Commissioners. A member of the public angrily expressed his disappointment at the department policy that prohibits members of the public — and South King employees — from carrying guns, except police.

The ban covers all property of the department, from public spaces like the commissioners’ meeting room to more private areas like firefighters’ kitchens.

“It’s perfectly legal,” said Dave Workman, a spokesman for the Bellevue-based Second Amendment Foundation, on carrying guns in public places. “Hell, you can carry a gun into the state Capitol. People do it all the time.

“The fire department is on really shaky legal ground to do something like that.”

“The policy has been around for 20 years,” said South King spokeswoman Kendra Kay. “Our legal counsel has ensured us” that it’s legal.

South King cites two court cases to support its policy. From 1990, Cherry v. Seattle Metro dealt with a bus driver (the agency has since become King County Metro) who was fired for carrying a gun at work. The driver sued (he was also carrying other weapons and contraband at the time), but the state Supreme Court eventually ruled that employers can ban employees from carrying guns at work.

Attorney Mark Marshall defended Seattle Metro in that case. He said he argued the case narrowly in terms of employer rights — he didn’t want to get into a larger Second Amendment battle.

“It’s a work rule,” he said of the case. “We’re not trying to control the activities of the public.”

But the 2005 Estes v. Vashon Maury Island Fire Protection District No. 13 dealt directly with that department’s policy on banning guns on its property. David Estes sued the department after it passed the policy in 2003, citing a violation of state law and the U.S. Constitution.

Estes, who represented himself, lost. The state Court of Appeals found “the policy does not constitute a penal law or ordinance of the type pre-empted by (state) statute. And to the extent that the policy constitutes a limitation on the constitutional right to bear arms, it is a permissible restriction because the right is only minimally affected by limiting possession of firearms by visitors to fire stations and there is a substantial benefit to public safety.”

Policies differ in Federal Way

Washington has a “preemption” statute dealing with firearms. It essentially means that localities cannot enact laws that are stronger than state laws dealing with firearms. There are a few specific public places, according to state law, where guns are not allowed. These are mental facilities, prisons, courts and certain parts of police departments. Otherwise, it’s OK to carry legally-obtained guns in public places like city halls, concealed or not.

Despite banning its employees from doing so, King County Metro spokeswoman Linda Thielke said riders can carry guns that they own legally, and that might even include a hunting rifle. Sound Transit also allows riders to carry legally-obtained firearms.

King County Library System spokeswoman Julie Brand said the same. Guns are OK, as long as the carrier is doing so legally and is not being disruptive or threatening.

City of Federal Way spokesman Chris Carrel cited state law, saying, “We don’t have any policy that prohibits it.”

South King holds that its policy is in the interest of public safety. There are sometimes consequences when guns enter public spaces. In 2008, a gunman killed six people at a city council meeting in Kirkwood, Mo.: three police officers, two city council members and the public works director; the mayor was also shot and died seven months after the shooting. Last December, a man held a Florida school board hostage before opening fire, though no one was hurt except the gunman, who shot himself.

Recently in Lansing, Mich., the downtown library has been the scene of gun owners flaunting their ability to openly carry guns, some bringing rifles into the repository. The library has pursued legal remedies to stop the public from carrying guns there.

South King Chief Al Church said that if someone were discovered to be carrying on the department’s property, that person would be isolated and the police would be called to remove them.

AG opinion offers guidance

Federal Way Police Chief Brian Wilson cited a 2008 state Attorney General’s opinion as evidence that guns are allowed in public places. Attorney General opinions are not legally binding, but generally offer guidance for public policy.

“Accordingly, (state law) pre-empts a city’s authority to enact local laws that prohibit possession of firearms on city property or in city-owned facilities,” reads the opinion.

However, as Estes v. Vashon notes, a “policy does not constitute a penal law or ordinance of the type pre-empted by the statute.”

Wilson said that his officers, when responding to a call of someone with a gun, would have to follow state laws. It’s a little muddy if a public agency has a policy banning gun possession.

“There’s statutory authority that’s pretty clear how this area of the law is interpreted,” Wilson said. “In terms of enforcement or calls, that’s what we would consider. Whether a particular organization has a policy is a moot point.”

Wilson said there have been instances where armed citizens have shown up at Federal Way City Council meetings. If the department knows about such individuals, Wilson said, officers take care to watch the situation.

“Our role is to enforce the state law, but also to protect the Constitution,” he said.

Kay said that South King stands behind its policy and is assured of its legality. She said the department would likely stand behind the policy if it’s challenged in court.

“It will be up to our commissioners to meet with the chief and legal counsels to determine the course of action,” she said.

 

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