Appeals court knocks down remainder of Edmonds gun storage law

Mayor Mike Nelson originally proposed the gun storage ordinance in 2018 while he was on the city council.

In an opinion issued Monday, the Washington State Court of Appeals ruled against the City of Edmonds and in favor of the plaintiffs in the ongoing series of challenges to Edmonds’ gun storage ordinance. Monday’s ruling built upon previous court decisions that declared the safe storage provisions of the Edmonds ordinance invalid by also striking down the unauthorized use provisions, thereby effectively negating the entire ordinance.

Proposed by then-City Council President Mike Nelson in July 2018, Ordinance 4120 was subsequently enacted by a 5-to-1 vote of the council (then-Councilmember Neil Tibbott was on vacation and unavailable by phone).

There are two functional issues addressed by the ordinance. The first mandates safe storage of firearms (section 5.26.020), and the second addresses and provides penalties for unauthorized use of firearms (section 5.26.030). The latter is intended to address such things as unsecured firearms being used by children, being stolen or being used in a crime.

Originally filed in 2018, the suit argued that Edmonds’ ordinance violates Washington State’s preemption statute (RCW 9.41.290), which grants exclusive authority for gun regulation in Washington to the state Legislature. The suit, brought by Edmonds residents Brett Bass, Curtis McCullough and Swan Seaberg, was joined by the National Rifle Association and Second Amendment Foundation.

This was followed by a flurry of legal filings on both sides. Plaintiffs continued to maintain that the Edmonds measure violates state law and should be struck down, and the City of Edmonds argued to dismiss the suit on the basis that the plaintiffs “lacked standing” — a technical argument meaning that they would suffer no harm should the ordinance move forward and hence have no stake in the outcome and cannot file suit.

In March 2019, Snohomish County Superior Court Judge Anita Farris denied the city’s motion to dismiss, ruling that the plaintiffs do indeed have standing, thus allowing the suit to proceed.

In June 2019, the NRA and Second Amendment Foundation pulled out of the suit but continued to provide support to the remaining plaintiffs.

The plaintiffs appealed, and in October 2019 the court (again presided over by Judge Farris) granted a partial victory to both sides, finding that the plaintiffs’ standing applies to the safe storage but not the unauthorized use provisions of the ordinance. Accordingly, the court ruled that the State preemption law applies to the storage provisions but not the unauthorized use provisions. This said in effect that the City of Edmonds cannot tell people how to store their guns, but can levy fines against gun owners whose firearms are possessed or used by unauthorized persons.

The new Appeals Court ruling issued Monday goes beyond this, finding that the plaintiffs have standing to bring suit against both the storage and unauthorized use provisions of the Edmonds ordinance, and further finding that the state preemption statute also applies to both of these provisions.

The ruling concludes with the following language:

“We therefore conclude that RCW 9.41.290 [the Washington State Preemption Law] unambiguously preempts both ECC 5.26.020 [the safe storage provisions of Edmonds Ordinance 4120] and ECC 5.23.030 [the unauthorized use provisions of Edmonds Ordinance 4120].

“CONCLUSION  – Although the trial court erred in dismissing the Gun Owners’ challenge to ECC 5.26.030 on standing grounds, we affirm the trial court’s determination that RCW 9.41.290 unambiguously preempts ECC 5.26.020 and further conclude that ECC 5.26.030 is also preempted.”

While at this time there is no firm word from the City of Edmonds about further appeals, Edmonds mayor Mike Nelson emailed the following statement to My Edmonds News.

“In Edmonds, three years ago a 16-year-old playing Russian roulette shot and killed a 17-year-old girl.  This month, a 13-year-old boy in Auburn shot his 15-year-old sister while playing with a gun. There is no dispute that safe storage of firearms saves lives.

“We have an outstanding team of lawyers assisting us on our next steps and options. This much is clear, we are not going to stop protecting our children from gun violence until the violence stops,” Nelson said.

— By Larry Vogel

49 Replies to “Appeals court knocks down remainder of Edmonds gun storage law”

  1. I must be missing something. Why would anyone argue that safe storage of firearms is a bad idea? This is disappointing.

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    1. It’s not arguing safe gun storage is bad. It’s arguing that the “state” has no authority to tell you what to do with your property within the confines of your home so long as the property is lawfully possessed. This “for the children” cry is a red herring for Fascism. This ruling is correct. Either outlaw guns completely (or try), or stop chipping away at personal liberties.

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        1. Actually, the number of gun violence deaths has been halved since 1990, while the number of legal firearms owned has almost doubled. So no, more guns doesn’t equal more gun violence. One question you might want to ask is why our state AG Ferguson has ignored the violations of 90+% of precluded people who attempt to purchase firearms, when doing so is a felony. More gun laws don’t make sense when the state refuses to enforce the ones we already have. The reason: It’s not about safety. It’s about control.

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      1. Laws and safety regulations are created because bad things happens when the bottom feeders of society make a bad decisions resulting in death. It’s all about freedom until the state is investigating a body on YOUR PROPERTY because of an improperly stored or handled gun. I’m a gun owner with my guns locked up in a secure cabinet even if my teenagers know how to use them. Its just smart, not fascism. Wearing masks: smart, not fascism.

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    2. It isn’t necessarily a bad thing, if done correctly. The issue is that a city cannot make a law that goes beyond the scope of the laws of the State. The state law trumps a city ordinance.

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      1. What about storage of poisons, having a dog or cat that might infect children, steps that people might fall down, bathtubs that drown people, etlc.,etc. Let’s control e every aspect of people’s lives. 29mvr.subs43@

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  2. It seems like the plaintiffs are possibly having issues with the government overstepping their authority in terms of responsible people and the storage of their property in their own homes? I’m wondering if they are feeling violated and dominated by the government?

    Knives are also dangerous and have been used to kill people, does that mean the government can tell us how to store them as well? What about poisonous substances? This is a slippery slope.

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  3. I repeated posted here, at the time of adoption, that this ordinance was unconstitutional and would be struck down in court. I was met with derision by two different council members in this forum. This was nothing but an attempt to make themselves look good by “doing something”, even though the ordinance would do nothing other than make criminals out of law-abiding citizens. Much the same situation as the on-going debacle of the police chief situation now.

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  4. The law’s title was simply worded to structure that exact kind of thinking. If a gun owner has one pistol in the house, they would be required to have a gun safe to store it (trigger locks or cable locks are specifically called insufficient). A cheap gun safe is $100 but can be broken into with a pocket knife, so stiff penalties were added to ensure compliance. The casual gun owner would become a felon if their gun was stolen and used in a crime, thus forfeiting their gun rights forever. Imagine coming home to find your house burglarized. Then the police show up to arrest you because the criminal used your identity to commit crimes. You are victimized twice!
    Gun locks are given away for free. Quality gun safes are around $600 (no sales tax in WA) so this doubles the cost of owning a gun.
    Store your guns safely for sure. Every legit gun owner knows this. Store the ammunition separately (and secured if possible). If you or somebody you live with are struggling with emotional or mental health issues the Sheriff’s dept. will store your weapons for free for up to a year while you get help. Otherwise sell your guns. It is as hard as giving up your car keys when it is time to stop driving.
    Education, not legislation.

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  5. The court’s decision hangs most strongly on the pre-emption statute cited in the article, the operative part of which reads– “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…”

    This absolute and iron-clad language was drafted by the gun lobby and approved by the Legislature a few decades ago. It’s been around a long time, and today’s judicial outcome comes as no surprise. I’m all for requiring safe storage of firearms (my sons have gotten the lecture and heeded my advice), but the only way to get there is by changing state law. Local ordinances, no matter how well-intended, won’t get us there.

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  6. Roughly a year ago Mr. Nelson attempted to deprive United States citizens of their civil rights under color of the law. He and several city council members passed a tyrannical edict that made illegal, among other things, “the carrying or possession of firearms.” Human beings have an absolute right to self-defense, as mentioned in passing in the 2nd Amendment to the Constitution; but this means nothing to Mike.

    Michael wishes dearly to bring the worst of Seattle politics to Edmonds – lawlessness, disregard for property rights, capricious and arbitrary enforcement of the legal code – and we do well to fight this at every turn. Support better candidates for mayor and for city council. Keep Edmonds safe for our children.

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  7. Every Gun owner should have a gun safe to prevent household accidents or gun thefts. I would hope today, the retailers discuss this with every gun sold.

    The way Nelson tried to push this gun law through was wrong. Nelson seems to continue to make bad decisions that affect our city finances and Edmonds citizens emotional health and happiness.

    We need to make changes in our cities leadership.
    We have three seats we can flip and hopefully one of the new comers will take the Mayors job, when his time is up. Drop the Mike sooner would be better then later!

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  8. Excerpt from the July 24, 2018 City Council Meeting Minutes (Please excuse the “all caps” – the minutes include the items in “all caps”). I do not know why the minutes reflect Ordinance No. 4020 as that Ordinance had been passed in early 2016:

    COUNCIL PRESIDENT NELSON MOVED, SECONDED BY COUNCILMEMBER FRALEY-MONILLAS, TO APPROVE ORDINANCE NO. 4120, AN ORDINANCE RELATING TO THE SAFE STORAGE OF AND ACCESS TO FIREARMS.

    Mayor Earling commented one of the downsides of being the mayor is only being able to vote at certain times. He is not allowed for things like this unless there is a tie and if the motion is regarding an ordinance or finances, he does not get to vote. As he said a couple weeks ago, this is a small thing and several small things need to be done to move the ball and for legislators to take note of the actions taken.

    MOTION CARRIED (5-1), COUNCILMEMBER JOHNSON VOTING NO

    COUNCIL PRESIDENT NELSON MOVED, SECONDED BY COUNCILMEMBER FRALEY-MONILLAS, TO APPROVE ORDINANCE 4020, AN ORDINANCE RELATING TO THE REPORTING OF LOST OR STOLEN FIREARMS; INCREASING THE MAXIMUM PENALTY FOR FAILURE TO REPORT A LOST OR STOLEN FIREARM; ADDING LEGAL PRESUMPTIONS AND DEFENSES REGARDING COMPLIANCE OR FAILURE TO COMPLY WITH SECTION 5.24.070 OF THE EDMONDS CITY CODE. MOTION CARRIED (5-1), COUNCILMEMBER JOHNSON VOTING NO.

    Question – How does all of this relate to Oaths of Office taken to support the Constitution?

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    1. Perhaps our Mayor and Council will now stop wasting taxpayer money on clearly illegal virtue signaling ordinances. The preemption doctrine has been well established in the law for many years in regards to local governments passing gun laws. Simply stated, a city or county cannot pass a gun law more restrictive than existing state law. This is so the law is uniform regardless where you may travel in the state. Our Mayor and Council members swear to uphold both the US Constitution and State on Washington Constitution. Hopefully they will follow both in the future when considering new local ordinances.

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      1. Excellent points. I’ve often wondered how someone is held accountable for violating their Oath of Office. It can’t be simply to vote for a different candidate the next election because some take Oaths of Office who are not elected officials. For example, the City Attorney. Do Oaths of Office really mean anything or are they just words on paper?

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  9. A new prohibition on guns

    Ask yourself if a new prohibition on guns will really stop murder better than any other prohibition ever has. Do we really want a new black market in guns with more murder, violence, robbery and total disrespect for the law? Remember the first lesson in the Bible, not even God could maintain a prohibition on an apple, and that prohibition resulted in human suffering ever since. Alcohol prohibition resulted in organized crime, murder, lawlessness, violence and robbery still with us today, almost 100 years later…
    Those who don’t remember the past are doomed to repeat it! Later Bill

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    1. Bill,

      I have a different perspective with regard to your reference about God. Luke 1:37 tells us that “nothing is impossible with God.” So I believe that God “could” have prohibited them from eating the fruit, but He chose not to because it was part of His sovereign plan. He could have placed the fruit so high up they couldn’t reach it. He knew what they would do if given the opportunity and allowed it for His purposes.

      In terms of the gun issue, it seems that Washington laws were created for the purpose of protecting the constitutional rights of our citizens. If Edmonds attempted to violate those rights via their own laws, I’m glad someone held them accountable. I don’t think anyone is saying that gun safety isn’t important, that is a no brainer. The challenge is when the government attempts to treat people like children and violate our rights. If we allow that, we are participating in our own abuse.

      Instead of trying to dictate and mandate safety, why doesn’t the government educate? When someone purchases a gun are they offered any kind of training and/or options for proper storage? If not, why don’t we start there?

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  10. Take that Nelson et al.
    Hopefully jurisdictions like Edmonds will realize that violating the Washington state constitution is neither legal nor in the best interest of personal protection. My gun, my home, my choice. Anyone who thinks that enforcement of this would require violating the 4th Amendment of the United States Constitution isn’t an American. Like more and more of the left everyday it seems.

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  11. Shucks. I wanted Edmonds to buy me a nice big safe for all my guns, considering that how I keep my guns is a City of Edmonds safety concern just like pot holes and sidewalks. The City pays for safety concerns under it’s purview. Safes for long rifles are pricey, but thank goodness the mayor was at least willing to prioritize tax dollars to buy us all a safe. Couldn’t Mayor Nelson, or more specifically the City Council, set up a fund or a grant to buy us all safes with Edmonds tax money? The law still allows them to do that. If it saves just one life it is worth it right?

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  12. I suggest working within the laws that are in place. Stop trying to make unconstitutional laws. Stop wasting money. If you do not enjoy your work in our little town of Edmonds, go to a bigger city.

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  13. To the several commenters who reference a Constitution~ this case was NOT decided on the basis of either the state or federal constitution. As I spelled out in my earlier comment above, the Edmonds ordinance is in violation of RCW 9.41.290, a state statute. In our system, state law trumps city ordinances; a fairly simple concept, actually.

    I read all 16 pages of this appellate court decision, and the court was crystal clear in its ruling. It was not a close call~ strongly suggesting the City should not proceed with a further appeal.

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    1. DC V Heller ruled that trigger locks (less secure than a safe) rendered a gun useless. Arguments in this case differentiated the concepts of gun ‘storage’ and ‘staging’. A stored fire arm (such as one that’s put into a safe) is considered as not used. So, attempts to legislate that un-used guns be stored in a safe is redundant. A gun kept in a nightstand drawer is considered to be staged, not stored, thus in use. The SCOTUS ruled that DC couldn’t mandate trigger locks on these grounds, in deference to the Constitution. Mike Nelson was quite a bit over his head.

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  14. If I remember correctly, our city council passed this ordinance after a series of mass shootings and a march by Edmond Woodway high school students. I remember being proud that our council members tried to do something to give us a glimmer of hope. Hope that someday our young people don’t have to grow up in a society where gun rights outweigh the value of human life.

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  15. With the number of Edmonds citizens having such a hard time with what is going on with the economy I think our city government should quit wasting our tax dollars.

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        1. My solution is to accept there is no solution to violence. There are lots of easy ways to make certain problems worse, while there are few ways to make them better. What’s the solution to homelessness, for example? It seems the more that is done, the worse it gets. There are so many guns now. I went home to Maine last week. We always had guns, but now everyone there is open-carrying, packing heat to make [what I feel] is just a political statement. Yet still, the violence is abating even though the firearm ownership is too much in my opinion. Scientifically and anecdotally there seems to be no correlation between guns and violence.

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  16. It’s not true, as alleged earlier by John Wallace, that “the number of gun violence deaths has been halved since 1990”. The statistics are readily available: 37,155 firearm deaths in 1990, as compared with 39,740 fatalities in 2018. See https://www.statista.com/statistics/258913/number-of-firearm-deaths-in-the-united-states/#:~:text=In%202018%2C%20there%20were%2039%2C740,fatalities%20between%201999%20and%202002.
    This is a good example of the kind of misinformation regularly circulated by the NRA and their supporters. Gun violence is a public health epidemic in the USA, and gun owners better get on board with helping to find good solutions are they will be forced to accept solutions imposed on them by others.

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    1. Ian – suppose the numbers you provided for firearm deaths in 1990 (37,155) and 2018 (39,740) are accurate. The US population in 1990 was about 249 million and in 2020 is projected to be about 333 million, an increase of about 1.34x (from WorldAtlas). During the same period firearm deaths rose 1.07x. If the rate of firearm deaths had remained unchanged in 2018 we could have expected (using 2020 population numbers, but I expect this will only introduce a small error) roughly 37,155 X 1.34 = 49,787 firearm deaths in 2018. We had about 10,000 fewer firearm deaths in 2018 than expected from the 1990 death rate, or roughly 80% of the expected deaths. This is great news!

      Of course, this all misses the main point: firearms deaths, more properly called homicides and murder if unjustified, are caused by criminals doing criminal things and usually with illegal firearms. Legal firearm owners are among the most law-abiding citizens in the country, particularly those who have a concealed carry permit. Restrictive gun laws such as that contemplated by Mr. Nelson and magazine/other limitations imagined by several legislators are nothing less than an attack on legal gun ownership. They do nothing to reduce criminality while they create criminals out of law-abiding citizens and deprive them of the most fundamental right of any living being, self-defense.

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        1. “Gun Death Rate” is a dishonest metric. Imagine if we compared countries by “Non-Gun Homicides”. Countries that have high rates of Non-Gun Homicides couldn’t solve their situation by giving citizens firearms any better than we can solve our problems by taking firearms away. A homicide is a homicide. If I imagine myself being a homicide victim, it’s better to be shot than the other ways I could be murdered.

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  17. How does this work now? Does the 2021 City Council have a responsibility to immediately repeal Ordinance 4120?

    In addition, will the related City Officials be held responsible for violations of Oath of Office? This includes the five City Councilmembers who voted for this plus the City Attorney.

    In addition to violating State Law, this effort used the resources of time and money.

    Per ECC 2.05.020, the City Attorney shall advise the city authorities and officers on all legal matters pertaining to the business of the city and shall approve all ordinances as to form. He shall draft or approve all ordinances, leases and conveyances, and such other instruments as may be required by the business of the City.

    The City Attorney took an Oath of Office in which he swore to faithfully and impartially perform the duties of his office as prescribed by law and to the best of his ability. He also swore to support and maintain the Ordinances of the City of Edmonds, the Laws and Constitution of the State of Washington and the United States of America.

    The five City Councilmembers took an Oath of Office that includes supporting the Laws of the State of Washington, according to the law to the best of their ability.

    The Washington State Court of Appeals has clearly ruled that Ordinance 4120 violates the laws of the State of Washington. It was not a close call. It was a clear decision for the Washington State Court of Appeals.

    Hopefully, citizens of Edmonds will get to see if Oaths of Office matter.

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    1. Ken, this is impeachable because the law was created in bad faith. Edmonds actually argued in court on the original case (not the appeal) that Bass’s case should be thrown out because [basically] the Safe Storage Law was never enforced and that the city didn’t plan to enforce it, thus people didn’t have *standing* to sue Edmonds.

      Since when does Edmonds create law that Edmonds never intends to enforce? What tangible affect is there on gun violence if token laws are created that don’t have any power? You’d think that the Edmonds Moms would be angry at Mayor Nelson and the Council for creating a pointless law, setting their gun-control efforts back by serving them a major defeat and embarrassment.

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  18. Thanks Matt. I will need to try and find time to go back and read the City’s original legal argument. Passing laws the City government did not plan to enforce? Unreal.

    I think there must be accountability. The Five Councilmembers and the City Attorney all took Oaths of Office that included supporting the laws of the State of Washington.

    The Washington State Court of Appeals has clearly ruled that Ordinance 4120 violates the laws of the State of Washington. It was not a close call. It was a clear decision for the Washington State Court of Appeals.

    I believe citizens deserve that those responsible for this illegal Ordinance be held ACCOUNTABLE.

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    1. I had even turned myself in hoping to get fined. I called the EPD a long while ago. Early on Seattle was able to avoid legal jeopardy by arguing no one had standing because no one was fined.

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      1. Incredible Matt. Absolutely incredible.

        Let’s look at who should have the burden of holding those accountable for violating State Law and Oaths of Office.

        Should the citizens be the ones burdened with time consuming, challenging processes such as Recall?

        Or should those who voted for the illegal Ordinance and who violated their Oaths of Office be burdened with making sure they are held accountable for their actions?

        I think an argument can be made that holding them accountable should not be the citizen’s burden. I think an argument can be made that those responsible should volunteer to apologize and make the citizens whole. I think an argument can be made that they should volunteer to be subject to appropriate discipline, up to and including the possibility of forfeiture of public office.

        I would appreciate others thoughts on this as I try to wrap my head around what is proper.

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        1. I predict that the Mayor of Edmonds will be re-elected. As will AFM. So many new people were canvased, so many new voter registrations in this area for 2020. Also, the #CancelRent movement is taking off. Some folks running for re-election in Lynwood were asking me what issues are paramount in this area and I think evictions and a possible plague of strategic abandonment will hit the highway 99 corridor. I believe the status quo is to forgive rent, student loans, and any other pending financial responsibility and austerity that would otherwise be forced on us for our own good. It will be a votes for sale situation, and an opportunity for Democrats. Because of this, I was told that Lynnwood is kicking off a committee to Stress-Test (analyze) the balance between those who pay rent verse those who own rental property. Get ready.

          Recall is the only way to handle our mayor I feel. He’s our Andrew Cuomo, Gavin Newsom. It’s the EPD’s fault and Jim Lawless’ fault for the Chief appointment fiasco for example. It’s the fault of the citizens who researched the background of the candidates. The Superior Court in Washington isn’t as smart as Mike Nelson, so appeal them.

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  19. The mayor in his comments admitted safe storage laws do not work. They have been in place just until this ruling. Yet, he admits a teen was just killed this month because of mishandling of a firearms. If safe storage laws worked then wouldn’t this have prevented the death of the teen? The courts ruled correctly.

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  20. I think it is time for the council to look at city attorneys contract. I cant believe he didn’t know that the state constitution and.RCW trump city ordinances.I think the city council let the public know how much the legal costs have been in this case. If the city isn’t paying then who is
    Lets have open government.

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