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Law

Arizona Politician to Gun Groups: Bring on Your Lawsuits

Tucson braces for legal battle in wake of new state law.

Earlier this week, Arizona became the latest state to adopt a law that will allow anyone in the U.S. to sue one of its cities to attempt to overturn local gun ordinances. The measure, which also allows for the possibility of punitive penalties against local officials who create the gun restrictions, is widely seen as an attempt to wipe out laws adopted in 2013 by Tucson.

Those ordinances require gun owners to promptly report lost or stolen guns and allow police to request a blood or breath sample from someone who negligently discharges firearms if that person appears intoxicated. Tucson adopted the rules despite a 2000 law barring any municipality from enforcing its own firearm regulations, a legal concept known as preemption.

Todd Rathner, a lobbyist for the Arizona State Rifle and Pistol Association who played a role in writing the new bill, denies that the legislation specifically targets Tucson, where he lives. “This is about an overall pattern of abuse by local government,” he tells The Trace. “Since these municipalities continue to play these games, we needed to add a penalty mechanism to the statute to put them back in their boxes.”

Steve Kozachik, the city council member who helped craft Tucson’s ordinances, expects a court battle. “Let them bring it on,” he says. “I’m not simply going to cave because this state legislature has told us to.”

The Arizona bill is nearly identical to a measure that was passed in Pennsylvania in 2014. Like Arizona, the Keystone State already had a law on its books that barred local governments from enacting their own rules governing transportation or possession of firearms. Pennsylvania expanded the law’s reach with Act 192, which opened the door to lawsuits from groups outside the state. After the bill was passed, the National Rifle Association and other out-of-state gun-rights groups sued several large Pennsylvania cities that refused to repeal their firearm restrictions.

Both the Arizona and Pennsylvania measures use the threat of expensive lawsuits as a method to compel cities to roll back their ordinances. If a plaintiff wins a preemption challenge, the town must pay the plaintiff’s legal costs. But if a town wins, the plaintiff does not have to foot the bill. A city found in violation of Arizona’s preemption law would have to pay $50,000 for each offense and reimburse up to $100,000 in court costs. The new law also allows lawsuits to target local lawmakers responsible for the restrictions.

After Pennsylvania’s Act 192 was passed, nearly 100 state municipalities scrambled to roll back their firearm ordinances — “at gunpoint,” one borough council president said at the time. But larger cities like Pittsburgh, Philadelphia, and Lancaster, which could better afford the cost of defending themselves against the NRA in court, held fast. Those suits remain on hold while the Pennsylvania Supreme Court decides whether Act 192 — which was slapped onto a bill that created penalties for stealing scrap metals — is unconstitutional because of a rule that legislation can address only one issue.

Preemption was pioneered as a policy-making strategy in 1965 by tobacco companies, which challenged local clean air ordinances that were stricter than federal standards. The gun lobby began using preemption as a tool in 1980s, when the NRA, working in conjunction with more extreme gun-rights groups, filed a flurry of lawsuits challenging local gun laws. Since then, 38 states have passed laws totally or partially barring cities and towns from writing their own gun rules.

Tucson, a city of more than 500,000, has experienced 28 fatal shootings in the last 12 months, according to the Gun Violence Archive. In 2011, Congresswoman Gabrielle Giffords was among 18 people wounded in a mass shooting at a supermarket in an unincorporated area just outside Tucson city limits that killed six others.

Two years later, after Tucson’s gun ordinances were passed, Arizona Attorney General Tom Horne issued an opinion asserting that the rules contradict the state’s preemption law because they “govern a subject in a field that state law already fully occupies.”

City council member Kozachik says a close examination of Arizona law shows otherwise.

Citing the breathalyzer rule, he argues that state law says nothing about intoxication and firearms. He also takes issue with Horne’s conclusion that the lost or stolen ordinance is preempted by state law because it involves the transfer of a weapon. “Someone stealing your gun is not at all what the state legislature had in mind when they wanted to preempt us on transfer of weapons,” Kozachik says.

Horne, whose opinion was not legally binding, declined to weigh in on a third ordinance aimed at gun show organizers that requires a background check for firearms sold on city-owned property. But Kozachik says all three regulations “are now totally subject to challenge by everybody.”

Rathner says if an ordinance involves the possession of a firearm, “then it’s preempted. Period.” He declines to say whether he plans to file a suit against Tucson, but adds, “I didn’t work my ass off for months and months and months to pass a law only to see it violated.”

Kovachik hopes his city’s six-member council, which voted unanimously to enact the ordinances, will stand firm in the face of litigation.

“The gun lobby is pretty strong in Arizona, so the city of Tucson sticks out like a sore thumb,” he says. “I’m willing to be that sore thumb.”

[Photo: Flickr user Bill Morrow]