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Originally published Friday, March 12, 2010 at 11:31 AM

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Can city ban guns in parks? Courts wrestle over answer

It's a case of dueling rulings. On Thursday, a federal judge ruled that Seattle's ban on carrying firearms in city parks and community centers...

Seattle Times staff reporter

It's a case of dueling rulings.

On Thursday, a federal judge ruled that Seattle's ban on carrying firearms in city parks and community centers passes constitutional muster. But last month, a King County Superior Court judge ruled that the city cannot ban firearms in those areas.

In this instance, the King County ruling takes precedent. Despite Thursday's federal court decision, the city's gun ban is still on indefinite hold.

"We are still bound by the state court injunction," said Mayor Mike McGinn. "But the significance of the federal court ruling is this is not a constitutional issue. This is an issue of state law."

Last year, under the direction of then-Mayor Greg Nickels, the city's Parks and Recreation department instituted a new rule banning firearms on certain city property where children were likely to be present.

There were no criminal penalties. Rather, violators would be asked to leave, although they could face charges of criminal trespass if they refused. The rule took effect last October.

That same month, five people and several gun-rights organizations filed suit in state court challenging the ban.

And in November, Robert C. Warden, a Kent attorney, actually tested it. After announcing to the media and city officials what he planned to do, he walked into Southwest Community Center with a Glock pistol under his jacket. He was asked to leave and did so.

Then he filed suit against the city in federal court.

Daniel Dunne, an attorney with the firm Orrick, Herrington & Sutcliffe, volunteered his time to represent the city.

Between the two lawsuits, there were three key questions:

• Was the firearms ban legal under the state constitution?

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• Was it legal under the U.S. Constitution?

• And did it violate state law?

On Thursday, U.S. District Judge Marsha Pechman ruled on the first two questions. She found the city was within its rights to ban firearms in city parks. Under current case law, the Second Amendment constrains the actions of Congress, not cities and states.

She found nothing in the state constitution that prohibited the city's actions, either. Because the park rule was "created to ensure safe areas for children and youth to recreate," Pechman wrote, it was a reasonable restriction. She quoted Supreme Court Justice Antonin Scalia, who noted in another case the "long-standing prohibitions on the possession of firearms ... in sensitive places" such as schools and courthouses.

The Superior Court judge focused on the third question: Did the gun ban violate state law?

Just because something is permitted under the U.S. Constitution doesn't mean it's automatically allowed under state law. In her ruling last month, King County Superior Court Judge Catherine Shaffer determined that Washington law does, in fact, prohibit cities and other municipalities from restricting firearms possession. Only the state Legislature has authority to enact such restrictions, she ruled.

Seattle must abide by that ruling. The city has taken down the 116 signs it had posted in parks and community centers announcing that firearms were prohibited.

The city maintains that state law does not prohibit cities from restricting guns on property they own, such as community centers — much like private-property owners can make their own rules. Officials cite case law to that effect.

McGinn thinks the Legislature should change the state law to make it more clear that cities can enact such rules. In the meantime, the city plans to appeal.

And so is Warden, the plaintiff in the federal case.

"I'm in it for the long term," he said.

He's hopeful that a case before the U.S. Supreme Court will help him get Pechman's ruling overturned. That case concerns the city of Chicago's weapons laws, considered the most restrictive in the nation.

The Supreme Court is considering the same basic question Pechman did: Does the Second Amendment apply to the states or just to the federal government? It is seen among lawyers as a companion to a similar case involving gun restrictions in Washington, D.C.

The Supreme Court's 5-4 decision that struck down the D.C. gun law in 2008 "left the NRA and gun-rights activists quite confident" about the Chicago case, said Steve Fogg, an attorney representing the National Rifle Association and other plaintiffs in the King County case.

If they're right, it casts doubts on Pechman's ruling.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

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