Other Views: Up to Courts, not Law Enforcement, to Determine Legality of Gun Law

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We agree with law enforcement officials in Washington who believe that Initiative 1639, the state gun-control measure passed by voters last fall, is bad law.

But we part company with sheriffs and other law enforcement officials in at least 13 counties — including Yakima County Sheriff Bob Udell and Prosecuting Attorney Joe Brusic — in their decisions not to enforce the law.

Law enforcement opposition is based on the belief that the initiative, which denies sale and possession of semi-automatic rifles to those under age 21, increases background checks, imposes a 10-day waiting period for purchasing those rifles and requires owners to securely store firearms, violates the Second Amendment. But sheriffs, prosecutors and police chiefs are not the arbiters of what is constitutional. That is a question for courts to decide.

Initiative 1639 passed by 59 percent statewide last November. Voters in Yakima County, like most other rural counties, opposed it; locally, 56 percent voted no. Initiative 1639’s legality is being challenged by the National Rifle Association and the Bellevue-based Second Amendment Foundation, and that’s the proper course to take. Their lawsuit was filed in U.S. District Court for Western Washington. State Attorney General Bob Ferguson believes the new law is constitutional and his office will defend it in court.

We editorialized against the initiative’s placement on the ballot due to irregularities with how ballot language was presented during the petition-gathering process — indeed, we often eschew citizen initiatives because they don’t undergo the same scrutiny and vetting applied to bills in the Legislature. And we editorialized against its passage. Among the primary reasons: Initiative sponsors were disingenuous in labelling it as regulating sale of “semiautomatic assault rifles,” when in fact it targeted any kind of semiautomatic long gun, including hunting rifles and small-caliber guns used for plinking and target practice.

Most of the law doesn’t take effect until July 1, and it’s not clear exactly what aspects of the initiative these sheriffs wouldn’t enforce. Ferguson, in an open letter to sheriffs and police chiefs, singled out enhanced background checks for concern, warning that failure to conduct them could open law officers to liability if a newly purchased semiautomatic rifle is used in a crime. Sheriffs and police departments are already required to conduct enhanced background checks for handgun purchases — which are also prohibited to those under age 21. There isn’t uniformity in opposition to that provision for semiautomatic rifles. Franklin County Sheriff Jim Raymond believes the new law is unconstitutional; yet, he said he favors enhanced background checks the initiative prescribes, which includes searching databases for mental illness and pending criminal charges. Udell, Yakima County’s sheriff, said his office will follow through with that provision if it’s upheld, though he worries about the added burden it will place on his staff.



The only provision that took effect Jan. 1 was the prohibition of sales to anyone under 21. There’s scant evidence that gun store owners won’t comply, though a Tri-Cities store owner said he could skirt that requirement on a technicality because the definition of what qualifies as a “semiautomatic assault rifle” is in a section of the law that doesn’t take effect until July (again, another problem with the initiative process).

Brusic, Yakima County’s prosecutor, says law enforcement officials here don’t have to worry about enforcing I-1639 anyway, because he won’t prosecute anyone under the law “as written. ... We enforce the laws, and if a law is created and we don’t want to enforce it, we don’t have to enforce it,” Brusic told a Herald-Republic reporter. “We are going to use our discretion to not investigate or charge.”

There is not unanimity in opposition to enforcement. Locally, Yakima interim police Chief Gary Jones says he’s duty bound to enforce I-1639. Several sheriffs, including those in Walla Walla, Chelan and Spokane counties, disagree with their colleagues. Spokane County Sheriff Ozzie Knezovich, who believes I-1639 is unconstitutional, went so far as to accuse sheriffs who say they won’t enforce the law of “grandstanding. ... It’s a slippery slope when we decide what laws we are or aren’t going to enforce,” he told the Spokesman-Review newspaper.

Chelan County Sheriff Brian Burnett, though also opposed to I-1639, says: “I don’t think it’s my opinion that matters so much as the courts’, and there’s a system there that we have to follow,” he told KOHO Radio in Wenatchee. “As soon as we no longer follow that system, then we’re going to walk away and abandon everything that America was created for.”

Regardless of personal opinions, local law enforcement officials — sheriffs, prosecutors, police chiefs — don’t determine constitutionality of laws. They must enforce the law and allow legal challenges to run their course.