Okanogan County Sheriff Tony Hawley
Voter-approved law faces legal challenges
Okanogan County Sheriff Tony Hawley has raised questions about how to impartially enforce requirements for secure gun storage in the firearm-safety initiative approved by Washington voters in November.
Hawley questioned what he called a lack of clarity regarding the requirements for gun storage in Initiative 1639. He pointed to the section that says, “A person who stores or leaves a firearm in a location where the person knows, or reasonably should know, that a prohibited person may gain access to the firearm is guilty of community endangerment due to unsafe storage.” But the law doesn’t provide clear requirements for how a gun should be stored, said Hawley.
“They need to clean up the language before our deputies can enforce the law without a lot of subjectivity,” he said.
According to the text of the initiative, a firearms dealer should “offer to sell or give the purchaser … a secure gun storage device, or a trigger lock or similar device that is designed to prevent the unauthorized use or discharge of the firearm.”
“It just says to keep it secure, but it needs to define storage,” said Hawley. “How are people supposed to be able to comply with that? It leaves it to the judgment of the law-enforcement officer at each point in time.”
In a brief letter about how the Sheriff’s Office will enforce I-1639, Hawley directed sheriff’s deputies and cooperating law-enforcement personnel “to conduct the appropriate investigations and document their findings.”
In an interview this week about the Feb. 4 letter, Hawley said he’s instructing deputies to document all information when responding to a burglary, including when the person last knew the belongings — including a firearm — were there. That way, the information will be available if the Okanogan County prosecutor decides to file charges, he said. Hawley conferred with the prosecutor before writing the letter.
“We’ll continue to do complete and thorough investigations so the public has confidence in the Sheriff’s Office,” said Hawley this week.
Twisp Police Chief Paul Budrow said he needs to do more research to understand the initiative fully. Acting Winthrop Marshal Doug Johnson didn’t return calls for comment.
Police chiefs in towns and cities set their own law enforcement policies and aren’t subject to decisions by the county sheriff, said Vicki Hallowell, public safety clerk for the town of Twisp.
Fifty-nine percent of Washington voters supported the initiative. Okanogan County voters opposed it by 64 to 36 percent.
Twenty-five of the state’s counties voted against the law, including all in eastern Washington except Spokane and Whitman counties.
I-1639 has already been challenged in court on Constitutional grounds.
Provisions of law
In addition to the storage requirements, the law imposes more-comprehensive backgrounds checks, requires proof of firearms training, and imposes a 10-day waiting period before someone can take possession of a gun. It directs the state to create a procedure to verify, at least annually, that owners of handguns and semi-automatic rifles are still legally eligible to possess them.
I-1639 amended an existing law. Throughout the initiative, the word “pistol” was replaced with “firearm,” extending rules for handguns to all firearms, including semi-automatic rifles.
If a gun owner doesn’t securely store a firearm and someone takes the gun and fires it or uses it in a crime, the gun owner could be liable. The law absolves the gun owner if the firearm was obtained through unlawful entry and the owner reports the missing gun within five days.
Hawley has concerns about the five-day requirement. Someone could be on vacation or have a vacation home and not discover a missing firearm for weeks or even months. That could have the effect of “re-victimizing” someone who was already the victim of a burglary, he said.
It’s not uncommon for guns to be stolen in Okanogan County, although it’s rare for them to be used in a crime, said Hawley. People do steal large gun safes and break them open. “They’re defeatable. It’s concerning to have that caveat,” he said.
One provision of the law — raising the legal age to buy a semi-automatic rifle to 21, from 18 — went into effect on Jan. 1, but the other sections don’t take effect until July 1.
Hawley noted that the law could be clarified before July.
Other county sheriffs
Some of his fellow sheriffs oppose the law because they see it as a violation of the Constitution, said Hawley. Others are waiting to see what happens in court before devoting considerable law-enforcement and prosecutorial resources to it. “Everyone’s got their own, different issue with it,” he said.
“Initiative 1639 has some constitutional issues which have and are being discussed thoroughly. I won’t and can’t violate the State or the Federal Constitution even if I wanted to,” said Ferry County Sheriff Ray Maycumber in a statement just weeks after the law passed. Peace officers take oaths that put them in “the virtually impossible position [of] enforcing this,” he said.
Grant County Sheriff Tom Jones said, “I am instructing my deputies not to enforce Initiative 1639 in Grant County while the constitutional validity remains in argument at the federal courts level.” Kittitas County Sheriff Gene Dana also ordered his deputies to take no enforcement action until Constitutional issues are resolved in court.
Douglas County Sheriff Kevin Morris said his office “will continue their work as they always have” during legal challenges. His office will continue its “proud tradition of common sense policing, a perspective we will continue to apply in our operations as it relates to I-1639,” he said.
The Washington State Sheriffs Association, which opposed I-1639, voiced concern in January that “the initiative placed greater restrictions on law-abiding citizens while creating unreasonable expectations regarding how such restrictions would be enforced.”
The association didn’t give specific instructions to sheriffs. But it noted that “the initiative is being challenged in court, and concerns a topic about which many of us feel very strongly — our rights as protected by the Second Amendment.”
“As with many other laws, the application of Initiative 1639 will undoubtedly vary from county to county across the State, based on local priorities and resources available,” said the sheriffs association.
Attorney general vows to defend law
As a growing number of county sheriffs announced that they don’t intend to implement or enforce the gun-safety law, Washington state Attorney General Bob Ferguson issued his own statement on Tuesday (Feb. 12).
“Like all laws passed by the people of Washington and their representatives, Initiative 1639 is presumed constitutional. No court has ruled that this initiative is unconstitutional,” said Ferguson.
Ferguson focused on the enhanced background checks because of the legal obligation sheriffs have to carry out that requirement. Starting July 1, local law enforcement officials will be required to conduct enhanced background checks for the purchase of semiautomatic assault rifles, just like handguns, he said.
“These enhanced background checks keep guns out of the hands of dangerous individuals who lawfully cannot own firearms because of a mental illness or criminal record,” said Ferguson.
Ferguson didn’t specifically address other provisions of the law.
Ferguson vowed to defend I-1639 against any legal challenge. “Local law enforcement officials are entitled to their opinions about the constitutionality of any law, but those personal views do not absolve us of our duty to enforce Washington laws and protect the public,” he said.
Lawsuit
Just eight days after it was approved by the voters, I-1639 was challenged in court. The National Rifle Association, Second Amendment Foundation, two firearms dealers, and four individuals under the age of 21 sued the state of Washington, asserting that the law violates the Constitution — specifically, the second and 14th amendments. The 14th amendment guarantees equal protection.
Semi-automatic rifles are “commonly owned and used for lawful purposes” in Washington and the United States, according to the lawsuit.
The lawsuit alleges that I-1639’s ban on interstate sales violates the commerce clause of the U.S. Constitution and infringes on plaintiffs’ Second Amendment rights.
The four individuals comprise recreational and competitive shooters and a member of the U.S. Army Reserves. They say they should be allowed to use semi-automatic rifles for recreation, hunting, and to maintain proficiency in military readiness.
