City of Edmonds v. Bass

481 P.3d 596

CITY OF EDMONDS, a municipality; Dave Earling, Mayor of the City of Edmonds, in his official capacity; Edmonds Police Department, a department of the City of Edmonds; and Al Compaan, Chief of Police, in his official capacity, Appellants,

v.Brett BASS, an individual; Swan Seaberg, an individual; and Curtis McCullough, an individual, Respondents.

No. 80755-2-I

Court of Appeals of Washington, Division 1.

FILED February 22, 2021

Jessica L. Goldman, Summit Law Group, 315 5th Ave. S Ste. 1000, Seattle, WA, 98104-2682, Molly Thomas Jensen, Eric Tirschwell, Everytown for Gun Safety Support Fund, 132 E 43 St. # 657, New York, NY, 10017, Jeffrey Burton Taraday, Lighthouse Law Group PLLC, 600 Stewart St. Ste. 400, Seattle, WA, 98101-1217, for Appellants.

Steven Walter Fogg, Eric A. Lindberg, Corr Cronin LLP, 1001 4th Ave. Ste. 3900, Seattle, WA, 98154-1051, for Respondents.

Gregory J. Wong, Kai Andrew Smith, Attorney at Law, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Amici Curiae.

PUBLISHED OPINION

Andrus, A.C.J. ¶1 Three individual gun owners (the Gun Owners) challenge an Edmonds ordinance making it a civil infraction to store unlocked any firearm and to allow access to such a firearm by children or others not permitted by law to possess it. They contend the ordinance is a firearm regulation preempted by state law. We conclude the Gun Owners have standing to raise their pre-enforcement challenge and hold that the ordinance is, regardless of its arguable benefits to public safety, preempted by RCW 9.41.290.

FACTUAL BACKGROUND

¶2 In 2018, the Edmonds City Council enacted Ordinance Number 4120, now codified as Edmonds City Code (ECC) 5.26.010-070 (the Ordinance). The Ordinance states in part:

It shall be a civil infraction for any person to store or keep any firearm in any premises unless such weapon is secured by a locking device, properly engaged so as to render such weapon inaccessible or unusable to any person other than the owner or other lawfully authorized user. Notwithstanding the foregoing, for purposes of this section, such weapon shall be deemed lawfully stored or lawfully kept if carried by or under the control of the owner or other lawfully authorized user.

EDMONDS CITY CODE 5.26.020. It further provides:

It shall be a civil infraction if any person knows or reasonably should know that a minor, an at-risk person, or a prohibited person is likely to gain access to a firearm belonging to or under the control of that person, and a minor, an at-risk person, or a prohibited person obtains the firearm.

EDMONDS CITY CODE 5.26.030. The Ordinance also contains a penalty schedule, subjecting violators of ECC 5.26.020 and .030 to fines ranging from $500 to $10,000. EDMONDS CITY CODE 5.26.040.

¶3 Also in 2018, Washington voters passed Initiative 1639, which makes it a crime to store or leave a firearm "in a location where the person knows, or reasonably should know, that a prohibited person may gain access to the firearm, ... a prohibited person obtains access and possession of the firearm" and subsequently misuses that firearm.

¶4 Soon after the Edmonds City Council enacted the Ordinance, two gun-owning residents of Edmonds brought this suit under the Uniform Declaratory Judgment Act (UDJA) against the City of Edmonds, its Mayor, the Edmonds Police Department, and its Chief of Police (collectively referred to as "the City"). The complaint alleged that RCW 9.41.290 preempts the Ordinance and sought declaratory and injunctive relief.

¶5 RCW 9.41.290 states in its entirety:

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.

¶6 The City moved to dismiss this challenge under CR 12(b)(1), arguing the plaintiffs lacked standing to challenge the Ordinance because none alleged an intent to violate its terms.¹ At the Gun Owners’ request, the trial court deferred ruling on the motion to dismiss to allow the Gun Owners to amend their complaint or to submit declarations to support standing and permitted the parties to submit additional briefing thereafter. The Gun Owners filed an amended complaint, in which they named a third individual plaintiff, also a resident of Edmonds, and alleged more facts about the Gun Owners’ firearms storage practices.

¶7 In this amended complaint, Bass alleged that, although he stores several of his firearms in a gun safe, he keeps one unsecured and unlocked in his home for easy access in the event of a home invasion. He alleged that he desires to continue doing so and fears enforcement of the Ordinance against him. Seaberg alleged that, while he has a gun safe, he stores several long guns throughout his home in a manner that violates the Ordinance. He also alleged fear of enforcement of the Ordinance. Lastly, McCullough alleged that he keeps at least three firearms unlocked and unsecured in his home, where he resides with his wife and two minor children.

¶8 After receiving additional briefing, the trial court concluded that the Gun Owners had standing to challenge ECC 5.26.020, the storage provision of the Ordinance, but not .030, the unauthorized access provision. But it also concluded that "as Plaintiffs have standing to raise preemption to at least one portion of the ordinance and such challenge is ripe, it is further ORDERED that defendants’ Motion to Dismiss is denied."

¶9 The Gun Owners moved for summary judgment, arguing that RCW 9.41.290 preempted both ECC 5.26.020 and .030. They each submitted declarations in which they testified that they store their firearms, unlocked, in their homes, that they do not intend to stop storing their firearms in that manner, and that they feared enforcement of the ordinance because they often left firearms unsecured and ready for self-defense even when no authorized user was in the same room.

¶10 Once again, the City argued the Gun Owners lacked standing to challenge the unauthorized access provision of the ordinance, ECC 5.26.030. The City cited deposition testimony in which McCullough testified he stored his guns in a locked gun safe in compliance with the Edmonds ordinance. Bass similarly stores his firearms in a gun safe but removes a rifle when he comes home in the evening and places it next to his bed stand overnight. Bass confirmed he did not want children to access his firearms and does not leave them in a place where it is likely children would access them. Seaberg testified he stores long guns in concealed places, unsecured, in his home at all times. He too stated he does not think it is likely children could access his guns if they came to his home. He does not leave his gun where he thinks it is likely a person prohibited from owning a firearm could gain access to it.

¶11 The trial court granted the Gun Owners’ motion for summary judgment in part, concluding that RCW 9.41.290 and I-1639 preempt ECC 5.26.020, but it affirmed its earlier ruling that the Gun Owners lack standing to challenge ECC 5.26.030.² It permanently enjoined Edmonds from enforcing ECC 5.26.020.

¶12 The City appeals the summary judgment order invalidating ECC 5.26.020 and the Gun Owners cross appeal the dismissal of their challenge to ECC 5.26.030 on standing grounds.

ANALYSIS

A. Standing

¶13 The Gun Owners argue the trial court erred in concluding that they lacked standing to challenge ECC 5.26.030, the unauthorized access provision. We agree. The Gun Owners have standing to challenge both ECC 5.26.020 and .030. Even if the Gun Owners have no intention of violating ECC 5.26.030, whether that provision is preempted by state law is an issue of public importance sufficient to confer standing.

¶14 The UDJA provides that "[a] person ... whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the statute, municipal ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder." RCW 7.24.020.

¶15 A party initiating a UDJA action must establish the existence of a justiciable controversy, including standing. Diversified Indust. Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973). A party initiating a pre-enforcement challenge to an ordinance must show interests that are "direct and substantial," rather than potential, theoretical, abstract, or academic. To-Ro Trade Shows v. Collins, 144 Wash.2d 403, 411, 27 P.3d 1149 (2001). "The kernel of the standing doctrine is that one who is not adversely affected by a statute may not question its validity." Walker v. Munro, 124 Wash.2d 402, 419, 879 P.2d 920 (1994). A party must demonstrate that they have suffered or will suffer an "injury in fact." Lakehaven Water and Sewer Dist. v. City of Federal Way, 195 Wash.2d 742, 769, 466 P.3d 213 (2020).

¶16 The City argues the Gun Owners cannot advance a pre-enforcement challenge to the unauthorized access ordinance, ECC 5.26.030, because they do not intend to ever violate that ordinance and thus have not suffered any injury in fact. But in Alim v. City of Seattle, 14 Wash. App. 2d 838, 852, 474...