Bass v. City of Edmonds

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE APRIL 21, 2022
SUPREME COURT, STATE OF WASHINGTON
APRIL 21, 2022
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
BRETT BASS, an individual; )
CURTIS MCCULLOUGH, an )
Individual; SWAN SEABERG, an )
Individual; THE SECOND )
AMENDMENT FOUNDATION, )
INC., a Washington nonprofit )
Corporation; and NATIONAL RIFLE )
ASSOCIATION OF AMERICA, )
INC., a New York nonprofit )
Association; )
)
Plaintiffs, ) No. 99596-6
)
v. )
) En Banc
CITY OF EDMONDS, a )
municipality; EDMONDS POLICE )
DEPARTMENT, a department of the )
City of Edmonds, )
)
Defendants. ) : April 21, 2022
Filed _____________
_______________________________)
GONZÁLEZ, C.J. – Under our system of divided government, many elected
bodies hold legislative power, including elected city councils. These councils,
however, must legislate within constitutional constraints. One of those constraints is
that city ordinances must not “conflict with general laws” that have been enacted by
Bass v. City of Edmonds, No. 99596-6
the people of our state by initiative or by our state legislature. WASH. CONST. art. XI,
§ 11. Constitutional general laws that state they explicitly occupy the field, that
implicitly occupy the field, or that are otherwise inconsistent with local laws preempt
local lawmaking. We are asked today whether a city ordinance that requires that guns
be stored safely and kept out of unauthorized hands is preempted by state law. We
hold that it is.
BACKGROUND
After robust debate following a mass shooting at the nearby Marysville
Pilchuck High School, the Edmonds City Council adopted an ordinance requiring
residents to safely store their firearms when not in use. Ordinance 4120, codified as
Edmonds City Code (ECC) chapter 5.26. The ordinance contains two operative
provisions. Under the “storage provision,”
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.
ECC 5.26.020. Under the “unauthorized access” provision,
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.
ECC 5.26.030. Violation of either provision carries a fine. ECC 5.26.040.
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At around the same time, Washington voters enacted Initiative 1639. LAWS OF
2019, ch. 3. This initiative, among many other things, criminalizes unsafe storage of
firearms but in more limited circumstances than Edmonds’ ordinance. Compare RCW
9.41.360, with ECC 5.26.020, .030. The initiative specifically did not “mandate[] how
or where a firearm must be stored.” RCW 9.41.360(6).
The plaintiffs 1 challenged the ordinance as preempted by state law. The city
moved to dismiss on the theory that the challengers did not have standing. Based on
the facts alleged in the initial complaint, the trial judge found the plaintiffs had
standing to challenge the safe storage section of the ordinance, ECC 5.26.020, but not
the unauthorized access section, ECC 5.26.030, since they had not alleged facts that
would tend to show an unauthorized person would get access to their weapons.
Later, both sides moved for summary judgment. Report of Proceedings at 3.
The trial judge renewed her earlier determination that the plaintiffs had standing to
challenge the safe storage portion of the ordinance, ECC 5.26.020, but not the
unauthorized access portion, ECC 5.26.030. She concluded that the storage portion of
the ordinance was preempted by state law.
Both sides appealed. The Court of Appeals concluded that the plaintiffs had
standing to challenge the entire ordinance and that the ordinance was preempted by
1
The current plaintiffs are Brett Bass, Curtis McCullough, and Swan Seaberg. They were joined
on the complaint by the Second Amendment Foundation Inc. and the National Rifle Association
of America Inc. The record suggests these organizations withdrew as parties to avoid discovery
requests but continue to fund the litigation.
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state law. City of Edmonds v. Bass, 16 Wn. App. 2d 488, 495, 497, 481 P.3d 596(2021). We granted review. 198 Wn.2d 1009 (2021). The city is supported by the
cities of Seattle, Walla Walla, Olympia, and Kirkland, as well as Brady and
Washington Alliance for Gun Responsibility.
ANALYSIS
This case is here on review of summary judgment, presenting only issues of
law. Our review is de novo. Wash. Ass’n for Substance Abuse & Violence Prevention
v. State, 174 Wn.2d 642, 652, 278 P.3d 632 (2012) (citing Pierce County v. State, 150
Wn.2d 422, 429, 78 P.3d 640 (2003)). Summary judgment is appropriate when there
is no genuine dispute as to any material question of fact and the moving party is
entitled to judgment as a matter of law. CR 56(c). Municipal ordinances are
presumed valid, and the burden is on the challenger to establish otherwise.
Winkenwerder v. City of Yakima, 52 Wn.2d 617, 624, 328 P.2d 873 (1958) (citing City
of Spokane v. Coon, 3 Wn.2d 243, 100 P.2d 36 (1940)).
1. Standing
The city does not contest the plaintiffs’ standing to challenge the storage
portion of the ordinance. It contends that the plaintiffs lack standing to challenge the
unauthorized access portion of the ordinance because they have not established they
are likely to violate it. We conclude the plaintiffs have standing.
The plaintiffs brought their case under the Uniform Declaratory Judgments Act,
chapter 7.24 RCW, and sought injunctive relief under chapter 7.40 RCW. Under the
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Uniform Declaratory Judgments Act, “[a] person . . . whose rights, status or other
legal relations are affected by a statute[] [or] municipal ordinance . . . may have
determined any question of construction or validity arising under the . . . statute[] [or]
ordinance . . . and obtain a declaration of rights.” RCW 7.24.020. The city has
challenged the plaintiffs’ standing to bring a declaratory judgment action. We use the
common law test for standing to determine whether someone has standing under this
act. Wash. State Hous. Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., 193 Wn.2d
704, 711, 445 P.3d 533 (2019) (citing Grant County Fire Prot. Dist. No. 5 v. City of
Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004)). Under that test, a person has
standing if (1) the interest they seek to protect “ʻis arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee in
question’” and (2) “ʻthe challenged action has caused injury in fact, economic or
otherwise, to the party seeking standing.’” Id. at 711-12 (internal quotation marks
omitted) (quoting Grant County, 150 Wn.2d at 802). Courts take a more liberal
approach to standing for questions of major public importance. See Farris v. Munro,
99 Wn.2d 326, 330, 662 P.2d 821 (1983) (quoting Wash. Nat. Gas Co. v. Pub. Util.
Dist. No. 1 of Snohomish County, 77 Wn.2d 94, 96, 459 P.2d 633 (1969)).
Standing under the Uniform Declaratory Judgments Act “is not intended to be a
particularly high bar. Instead, the doctrine serves to prevent a litigant from raising
another’s legal right.” Wash. State Hous. Fin. Comm’n, 193 Wn.2d at 712 (citing
Grant County, 150 Wn.2d at 802). Plaintiffs plainly meet the first element of the
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common law test—the plaintiffs own and store firearms. They are within the zone of
interests regulated.
The city, in essence, argues that to satisfy the second element, the plaintiffs
must show “‘actual, concrete harm’” and that they have failed to do so because they
have not shown they are likely to violate the statute. Pet’r City of Edmonds’ Suppl.
Br. at 20 (quoting Walker v. Munro, 124 Wn.2d 402, 412, 879 P.2d 920 (1994)). But
this mistakes the sufficient for the necessary. Walker mentions “actual, concrete
harm” in describing what the challengers there had failed to show. Actual, concrete
harm is sufficient to establish injury in fact. It is not, however, necessary. See To-Ro
Trade Shows v. Collins, 144 Wn.2d 403, 417, 27 P.3d 1149 (2001) (citing
Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973)).
Plaintiffs have testified they keep firearms unsecured and unlocked even when
children are in their homes. Regardless of whether plaintiffs subjectively believe they
are storing their firearms in such a way to keep them out of the hands of children and
others who should not have access to them, should a prohibited person get access to
their firearms, the plaintiffs could be charged with a civil infraction that carries a
potentially heavy penalty. These consequences are sufficient to establish the injury-
in-fact element of standing. Therefore, they have standing to bring this challenge.2
2
In contrast, this court recently concluded that a plaintiff lacked standing to challenge the
alleged improper positioning of a traffic camera monitoring vehicle speeds in a school zone. See
Williams v. City of Spokane, 199 Wn.2d 236, __ P.3d __ (2022). There, the plaintiff had not
challenged his own ticket for speeding in that school zone, establishing, as a matter of law, that
he had been properly ticketed. Id. at 247-48. Accordingly, the plaintiff in Williams lacked
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2. Preemption
We turn now to whether state law has occupied the field or otherwise preempts
this ordinance. Cities have broad police power under article XI, section 11 of our
state constitution. Municipal exercises of police power, however, may “not . . .
conflict with general laws.” WASH. CONST. art. XI, § 11; see also Cont’l Baking Co. v.
City of Mt. Vernon, 182 Wash. 68, 72, 44 P.2d 821 (1935) (citing Detamore v.
Hindley, 83 Wash. 322, 145 P. 462 (1915)).
The plaintiffs contend that both operative portions of the ordinance are
preempted by RCW 9.41.290. “A state statute preempts an ordinance if the statute
occupies the field or if the statute and the ordinance irreconcilably conflict.” Watson
v. City of Seattle, 189 Wn.2d 149, 171, 401 P.3d 1 (2017) (citing Brown v. City of
Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991)). Older cases have held that “[a]
statute will not be construed as taking away the power of a municipality to legislate
unless this intent is clearly and expressly stated.” State ex rel. Schillberg v. Everett
Dist. Justice Court, 92 Wn.2d 106, 108, 594 P.2d 448 (1979) (citing Nelson v. City of
Seattle, 64 Wn.2d 862, 866, 395 P.2d 82 (1964)). We have since found that the intent
to occupy the field may be implied. Watson, 189 Wn.2d at 171 (citing Brown, 116
Wn.2d at 560). We consider both the specific preemption statute and any related
statutes that shed light on legislative intent. See Dep’t of Ecology v. Campbell &
standing because there was no “‘actual, present and existing dispute.’” Id. (internal quotation
marks omitted) (quoting League of Educ. Voters v. State, 176 Wn.2d 808, 816, 295 P.3d 743(2013)).
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Gwinn, LLC, 146 Wn.2d 1, 11-12, 43 P.3d 4 (2002) (citing Cockle v. Dep’t of Labor
& Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001)).
Our legislature has limited local firearm regulation for decades. The current
preemption statute says:
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.
RCW 9.41.290; see also LAWS OF 1983, ch. 232, § 12 (“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.”).
While the legislature’s intent to occupy the entire field of firearm regulation is
clear, not every municipal action that touches on firearms is within that field. For
example, RCW 9.41.290 does not prevent a municipality from barring its employees
from carrying concealed weapons while on duty. See Cherry v. Municipality of
Metropolitan Seattle, 116 Wn.2d 794, 800, 808 P.2d 746 (1991). After reviewing
relevant legislative history, this court concluded that “the Legislature . . . sought to
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eliminate a multiplicity of local laws relating to firearms and to advance uniformity in
criminal firearms regulation” and that “[t]he ‘laws and ordinances’ preempted are
laws of application to the general public.” Id. at 801. Since the personnel policy was
not a law of general application, it was not preempted by the statute.
Similarly, RCW 9.41.290 did not prevent a city from imposing strict rules on a
gun show held at a municipal convention center. See Pac. Nw. Shooting Park Ass’n v.
City of Sequim, 158 Wn.2d 342, 356-57, 144 P.3d 276 (2006). Not only were the
restrictions not laws of general application, cities have specific statutory authority to
regulate gun possession in municipal convention centers and general proprietary
authority to limit how their convention centers could be used. Id. at 355-56 (citing
RCW 9.41.300), 357 (citing Cherry, 116 Wn.2d at 802). Accordingly, the city could
impose the rules.
Not all rules of general application that touch on firearms are preempted by
RCW 9.41.290. For example, RCW 9.41.290 does not prevent a city from taxing
firearms and ammunition. Watson, 189 Wn.2d at 156. While we acknowledge that
some regulations could masquerade as taxes, the Watson plaintiffs failed to show that
the particular tax was a regulation. Id. Since RCW 9.41.290 preempted only firearm
regulations, not taxes, the tax was not preempted. Id.
Similarly, the Court of Appeals found that RCW 9.41.290 did not preempt a
county ordinance requiring shooting facilities to obtain operating permits. Kitsap
County v. Kitsap Rifle & Revolver Club, 1 Wn. App. 2d 393, 399, 405 P.3d 10269
Bass v. City of Edmonds, No. 99596-6
(2017). The court noted that on its face, the preemption statute did not reference
regulating shooting facilities. Id. at 406. The court also noted that the ordinance
“impose[d] requirements only on owners and operators of shooting facilities, not on
the individuals who discharge firearms at those facilities.” Id. at 407. The court also
noted (among many other things) that the legislature had explicitly given
municipalities the power to “enact ordinances restricting the discharge of firearms
‘where there is a reasonable likelihood that humans, domestic animals, or property
will be jeopardized.’” Id. at 409 (quoting RCW 9.41.300(2)(a)).
Taken together, these cases establish that RCW 9.41.290 broadly preempts
local ordinances that directly regulate firearms themselves, but not necessarily
ordinances that have an incidental effect on the use and enjoyment of firearms or
exercises of municipal authority that do not establish rules of general application to
the public.
The city argues that the legislature intended only to preempt regulation in the
nine statutorily enumerated areas: “registration, licensing, possession, purchase, sale,
acquisition, transfer, discharge, and transportation of firearms.” RCW 9.41.290. But
the preemption statute begins with “[t]he state of Washington fully occupies and
preempts the entire field of firearms regulation.” Id. Given that broad introductory
phrase, we conclude the list is illustrative, not exclusive.
In the alternative, the city argues that RCW 9.41.290 does not preempt storage
and unauthorized access regulations under the principle of ejusdem generis. “The rule
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of ejusdem generis requires that general terms appearing in a statute in connection
with specific terms are to be given meaning and effect only to the extent that the
general terms suggest similar items to those designated by the specific terms.”
Silverstreak, Inc. v. Dep’t of Labor & Indus., 159 Wn.2d 868, 882, 154 P.3d 891(2007) (citing Davis v. Dep’t of Licensing, 137 Wn.2d 957, 970, 977 P.2d 554(1999)). The city suggests the nine enumerated items on the list can be divided into
two topics: firearms transactions (“registration, licensing, . . . purchase, sale,
acquisition, [and] transfer”) and active use of firearms (“possession . . . discharge, and
transportation”). Since the ordinance does not apply to guns in the owner’s
possession, it argues that ordinances pertaining to storage are not preempted.
We decline to limit the preemption statute to firearms’ transactions and active
use. That limitation is simply not consistent with the words of the statute as a whole.
Under that statute, “[t]he state of Washington hereby fully occupies and preempts the
entire field of firearms regulation.” RCW 9.41.290 (emphasis added). The key
question is whether the ordinance regulates firearms—not whether it regulates firearm
transactions or active use.
The legislature plainly meant to broadly preempt local lawmaking concerning
firearms except where specifically authorized in chapter 9.41 RCW or other statutes.
The city was acting in its regulatory, not proprietary, role and without the sort of
explicit or necessarily implied authorization present in Watson, 189 Wn.2d 149,
Pacific Northwest Shooting Park, 158 Wn.2d 342, or Kitsap Rifle & Revolver Club, 1
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Wn. App. 2d 393. Nor was the city acting as an employer as in Cherry, 116 Wn.2d
794. Accordingly, we hold that this ordinance is preempted by state law. 3
One volume of the record arrived at the court marked “sealed.” Clerk’s Papers
at 301-99. This volume included considerable material, such as a newspaper article
and minutes of city meetings, that plainly should not have been sealed under article I,
section 10 of the Washington State Constitution. See Dreiling v. Jain, 151 Wn.2d
900, 915, 93 P.3d 861 (2004) (holding that the documents filed in support of
dispositive motions may be sealed only under the five-factor test established by
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 37-39, 640 P.2d 716 (1982)). The trial
court’s sealing order was not designated on appeal. We remand this matter to the trial
court to make any corrections necessary such that only documents that have been
properly sealed under article I, section 10 are sealed, and to inform our clerk’s office
of any corresponding corrections to the record on appeal that should be made.
CONCLUSION
We hold that the plaintiffs have standing and that this ordinance is preempted
by RCW 9.41.290. We affirm the Court of Appeals and remand to the trial court for
further proceedings consistent with this opinion.
3
Given that we resolve this case based on field preemption, we do not reach arguments about the
intersection of this law and Initiative 1639. Nor do we reach the city’s argument that ambiguous
statutes should be construed against preemption or their arguments below concerning jurisdiction
and justiciability generally.
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WE CONCUR:
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