Kitsap County v. Kitsap Rifle And Revolver Club
49130-3
| Wash. Ct. App. | Nov 21, 2017Background
- Kitsap Rifle and Revolver Club (the Club) has operated a shooting facility in Bremerton since 1926; prior litigation found its operations created safety, noise, and unpermitted development problems and constituted a public nuisance.
- In 2014 Kitsap County adopted KCC 10.25 ("Firearms Discharge"), Article 2 of which requires all existing and proposed shooting facilities to obtain County operating permits, meet safety/noise standards, and allows closure for noncompliance.
- The Club refused to timely apply for a permit and claimed KCC 10.25 was preempted by state firearms law and inconsistent with its nonconforming-use rights and deed covenants.
- County sued for declaratory and injunctive relief; trial court granted summary judgment for the County, holding KCC 10.25 enforceable and requiring the Club to obtain a permit.
- On appeal the court considered state preemption (RCW 9.41.290/9.41.300), constitutional challenges under the Second Amendment and article I, §24 of the Washington Constitution, and whether the ordinance improperly affected nonconforming-use rights, deed covenants, or was unconstitutionally vague.
Issues
| Issue | Plaintiff's Argument (Club) | Defendant's Argument (County) | Held |
|---|---|---|---|
| Whether KCC 10.25 is preempted by state firearms law (RCW 9.41.290) | KCC 10.25 regulates discharge of firearms and thus falls within the preempted "entire field" of firearms regulation | KCC 10.25 regulates shooting facilities (permits/operation), not individuals' firearm use; statutory scheme does not indicate preemption of range licensing | KCC 10.25 is not a "firearms regulation" for purposes of RCW 9.41.290 and therefore not preempted |
| Whether KCC 10.25 falls within RCW 9.41.300(2)(a) exception (restricting discharge where humans/property may be jeopardized) | County did not make specific findings required by the statute and exception thus does not apply | Ordinance purpose and prior trial findings establish reasonable likelihood of danger; exception allows local restriction/requirements addressing safety | Even if preempted generally, KCC 10.25 fits the RCW 9.41.300(2)(a) exception because shooting ranges present reasonable likelihood of jeopardy to people/property |
| Whether KCC 10.25 violates the Second Amendment (and federal precedent) | Licensing and operational requirements burden the right to acquire/maintain proficiency and thus implicate Second Amendment | Ordinance regulates manner of operation, preserves ability to shoot at licensed ranges, and advances public safety—so intermediate scrutiny applies and is satisfied | Assuming it implicates the Second Amendment, intermediate scrutiny applies; KCC 10.25 is substantially related to public safety and therefore constitutional |
| Whether KCC 10.25 violates Washington Constitution article I, §24, or improperly affects nonconforming-use/deed covenants or is unconstitutionally vague | KCC 10.25 impairs right to bear arms, conflicts with nonconforming-use rights and deed covenants, and contains vague/overbroad standards | Police-power safety regulations can apply to nonconforming uses; no vested immunity from later safety regulations; ordinance standards are reasonably ascertainable | KCC 10.25 is a reasonable police-power regulation under article I, §24; it applies to nonconforming use, does not conflict with deed covenants as claimed, and is not unconstitutionally vague |
Key Cases Cited
- Kitsap County v. Kitsap Rifle & Revolver Club, 184 Wn. App. 252 (Wash. Ct. App.) (prior case establishing nuisance and safety findings informing ordinance)
- Cherry v. Municipality of Metropolitan Seattle, 116 Wn.2d 794 (Wash. 1991) (municipal employer may regulate employee possession of firearms on the job)
- Pacific Northwest Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342 (Wash. 2006) (municipal property owner may condition private use permitting with respect to firearms-related events)
- Watson v. City of Seattle, 189 Wn.2d 149 (Wash. 2017) (taxation was not a "regulation" of firearms under RCW 9.41.290 preemption analysis)
- Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1 (Wash. 1998) (nonconforming uses remain subject to later police-power health and safety regulations)
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (individual right to keep and bear arms; right is not unlimited)
- McDonald v. City of Chicago, 561 U.S. 742 (U.S. 2010) (Second Amendment incorporated against the states)
- Jorgenson v. State, 179 Wn.2d 145 (Wash. 2013) (Washington article I, §24 analyzed separately and firearms regulations subject to reasonable police-power limits)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (complete ban on shooting ranges implicated Second Amendment right to train)
- Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) (two-step Second Amendment framework and sliding-scale scrutiny)