Bellingham City Council Requests Constitutional Review of Mayor’s Emergency Powers

In Local News, News by CTNW News

The Bellingham City Council has asked the city attorney to provide a legal review of the constitutionality of the mayor’s emergency powers to prohibit sales or possession of firearms in the event of disaster.

The request was made March 23, 2020, as the council approved “procedural” updates to the city code outlining the emergency powers of the mayor — hours after Washington Gov. Jay Inslee announced a state-wide stay-at-home order over the COVID-19 pandemic.

Rumors circulated on social media days before the meeting that the council was taking some new action to restrict firearms, but Mayor Seth Fleetwood and several council members all said the rumors were untrue.

City Attorney, Peter Ruffatto, said the update is a “purely procedural process matter”, to improve the city’s ability to respond to this pandemic and other emergencies. Ruffatto said he recommended the changes in part because of the city’s experience with the emergency cold weather shelters over a year ago, and the difficulty they had getting things executed in time.

Ruffatto clarified that the proposed changes do not add any specific emergency powers to the City as a whole or to the mayor. This ordinance does not invoke, execute, or implement any emergency orders nor does it remove the legislative power of the city council.

Bellingham’s emergency powers code (2.57.060) was written in 1977 and already includes provisions (sections 5, 7, and 9) which empower the mayor to issue orders to stop the sale of firearms or even prohibit the possession of firearms in the event of disaster.

2.57.060 Emergency powers of mayor or director.
In the event of disaster as provided in this chapter, the mayor or, in the mayor’s absence, the director is empowered to do the following:
A. Make and issue orders which shall have the force of law on matters reasonably related to the protection of life and property as affected by such disaster; provided, however, such orders must be confirmed at the earliest practicable time, and in any event not more than 24 hours after their issuance, by the emergency services council; such orders shall include but not be limited to the following:

5. An order requiring the discontinuance of the sale, distribution, or giving away of firearms and/or ammunition for firearms in any or all parts of the city;

7. An order requiring the closure of any or all business establishments where firearms and/or ammunition for firearms are sold or otherwise dispensed; provided, that with respect to those business establishments which are not primarily devoted to the sale of firearms and/or ammunition and in which such firearms and/or ammunition may be removed or made secure from possible seizure by the public, the portions thereof utilized for sale of items other than firearms and ammunition may, in the discretion of the mayor, be allowed to remain open;

9. An order prohibiting the carrying or possession of firearms or any instrument which is capable of producing bodily harm and which is carried or possessed with the intent to use the same to cause such harm; provided, that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties;

Emergency Powers Code (2.57.060)

Gubernatorial candidate for the governorship of Washington State, Tim Eyman, running as a Republican, published a blog post March 21 calling sections 5, 7, and 9 “offensive anti-2A provisions”, and asked people to send emails to the mayor and council members telling them to remove those sections from Bellingham Municipal Code 2.57.060.

Eyman does not claim that the council was taking new action to control firearms, but he does say that the 1977 provisions “blatantly violate the US Constitution and our state Constitution,” and that the council needs to use this update as an opportunity to remove them. Eyman said the council received 700 emails from citizens concerned about their second amendment rights.

Bellingham Municipal Code 2.57 overall allows the city to create an emergency services council that could act outside of the usual government channels during an emergency or disaster.

Ruffatto said the update does reduce the members of the Emergency Services Council to 3 individuals: the mayor, the director of emergency services, and the city council president or designee. He assured that the full city council will still have involvement and oversight, and any emergency orders issued by the emergency services council will have to be confirmed by the city council as soon as possible by emergency ordinance.

Councilmember Pinky Vargas asked Ruffatto to address the rumors and clarify to residents that the update has nothing to do with guns.

“It’s broader than just not having to do with firearms or alcohol or sales of things or curfews,” Ruffatto said. “When I say that it adds no powers to the city and does not execute any orders of the city, you can fill in the blank – firearms, alcohol – it doesn’t do any of that.”

Mayor Seth Fleetwood added: “I think we’ve been abundantly clear this evening.”

Councilmember Micheal Lilliquist moved that the mayor’s administration provide a legal review of the constitutionality of city code 2.57.060 and report back to the council when completed. The motion was approved 6–0 with 1 councilmember excused. The council voted to pass the update ordinance without removing sections 5, 7, & 9 from that code.

At the March 23rd City Council Meeting, council members and others in attendance sat several feet apart following CDC guidance regarding COVID-19. No public comments were taken at this meeting due to the pandemic, according to the council web site.

Video of March 23, 2020, Bellingham City Council meeting starting at discussion of mayor’s emergency powers