In a previous article we discussed how King County Code violates state law.  Yakima, one of many cities that have been receiving sloppy legal advice, made changes to its code and discussed emergency powers that are substantively the same as King County's illegal emergency powers.  Thus, there may be some lessons for King County Council members that can be culled from Yakima's decisions.

At its September 1, 2009 City Council meeting, the City of Yakima discussed three statutes that are in violation of RCW 9.41.290, the Washington State preemption statute.  The City’s legal counsel advised retaining the City’s illegal powers and cited the low probability that an emergency would ever materialize as a reason not to make a change in the law at this time. 

He stated that martial law might never be declared and cited the lack of case law dealing with martial law.  Nevertheless, counsel thought there are legal reasons for keeping such an admittedly questionable law on the books.  The fact that counsel made such an argument raises liability issues resulting from the city arrogating powers to itself that by law can only be invoked by the governor.  See Video (fast forward to last ten minutes).

Thus, the real issue is liability if the City ever invokes such a statute, confiscates guns carried by lawfully armed citizens and then those citizens subsequently take legal action.  The City should consider the legal fees and costs incurred by New Orleans when guns were confiscated in the aftermath of Katrina.  The issues raised at the City Council meeting also relate to Section 24 of the Washington State Constitution, RCW 9.41.290 State Preemption and RCW 43.06.010 (12) in which the Governor has sole power and duty to proclaim an emergency in Washington State.

Leaving the law on the books until challenged can be a costly decision.  At the same meeting, the Yakima City Council recognized that state law preempts local laws in all matters pertaining to firearms when it removed two other illegal statutes from the books.

NRA v. New Orleans In the wake of hurricane Katrina, police in New Orleans and St. Tammany Parish confiscated firearms from law-abiding citizens. A law suit was filed in U.S. District Court. The court granted a temporary restraining order. St. Tammany Parish and its law enforcement personnel have conceded the legal claims, though denying their involvement. St. Tammany Parish defendants agreed to a permanent injunction against any future gun seizures and a Consent Decree was issued dismissing them from the case. The court issued a permanent injunction against the confiscation and retention of firearms on January 5, 2006. St. Tammany Parish defendants agreed to a permanent injunction against any future gun seizures and a consent decree was issued dismissing them from the case. The New Orleans defendants filed a motion to dismiss for lack of federal subject matter jurisdiction and failure to state a claim. The plaintiffs filed an opposition to the motion. Plaintiffs also filed on February 27, 2006, a motion for contempt against the City of New Orleans, the mayor and the acting chief of police for failure to comply with a temporary restraining order, handed down September 12, 2005, ordering an end to all illegal gun confiscations. A hearing occurred on March 15, 2006. The city started returning firearms on April 17, 2006. The city filed a motion to dismiss the lawsuit. The court denied the motion on August 16, 2006. On February 12, 2007, the judge held the defendant in contempt for failure to provide to plaintiff initial disclosures and discovery responses.

We are still trying to ascertain the total amount of fees and costs incurred by the City of New Orleans.  I have seen some preliminary figures and they were enormous!

See The Untold Story of Gun Confiscation After Katrina.

 Note: Congress and President Bush also saw the need to act to protect gun owners’ rights during emergencies. H.R. 5013, the “Disaster Recovery Personal Protection Act,” was introduced in the House by Congressman Bobby Jindal (LA - 1) and passed the House on July 25, 2006 with a broad bi-partisan margin of 322-99. Senator David Vitter (R-La) introduced the Senate version of the bill and added it as an Amendment to Homeland Security Appropriations, which passed the United States Senate by 84-16, the largest margin of victory for a NRA-backed measure. On October 9, 2006, President George W. Bush signed this legislation into law.

http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=191

State, county and local governments run the risk of liability under the following federal cause of action created by the Vitter Amendment if gun confiscation laws are enforced:

(c) Private rights of action
(1) In general
Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured by this section.
(2) Remedies
In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.
(3) Attorney fees
In any action or proceeding to enforce this section, the court shall award the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

42 USC Sec. 5207

.