State lawmakers are moving to make it easier for anyone to sue a city over its gun laws, and the sponsor said he's specifically aiming it at Tucson.
Rep. Steve Smith, R-Maricopa, pointed out that Arizona has had laws on the books for years preventing cities from enacting regulations that are stricter than state statutes. But he said that has not always been effective.
He cited one Tucson ordinance which allows police to request a breath sample from someone who has negligently discharged a firearm and appears intoxicated, and another requires people to report the loss or theft of a gun.
In a formal legal opinion last year, Attorney General Tom Horne said both measures run afoul of state preemption.
But Horne's opinion is just that, and Smith noted that, under current law, the only individuals empowered to challenge either ordinance are those who are charged with violating it.
HB 2517, approved Thursday by the House Judiciary Committee, changes all that.
It says any individual or organization whose membership is “adversely affected” by a law they believe is illegal can file suit. Challengers who win are entitled to legal fees and damages up to $100,000.
That, however, is only part of the equation.
The legislation also says court can assess a civil penalty of up to $500,000 against any elected or appointed government official if a judge determines the violation of state preemption laws was "knowing and willful.''
And to make sure that stings, HB 2517 makes the whole thing personal: It forbids the city from reimbursing the council member or employee for that penalty. It even says the official has to bear his or her own legal fees.
Smith said his legislation is designed to put “some teeth” in state preemption statutes.
“They're supposed to follow the law,” he said.
Rep. Eddie Farnsworth, R-Gilbert, agreed. “It's supposed to be a preemption, not a suggestion,” he said.
Tucson City Attorney Mike Rankin said he doubts that any member of his council that approved either ordinance could ever be found to have acted in willful and knowing violation of the law.
That's because they were acting on advice from his office. Rankin has concluded that neither one runs afoul of state law – a conclusion that remains unless and until a judge rules otherwise.
The measure was approved by the committee on a 5-3 vote, but even some of the supporters indicated they are not enamored with what Smith is trying to do.
Rep. Ethan Orr, R-Tucson, said he understands the purpose of the preemption laws was to ensure that Arizona did not have a patchwork of different regulations affecting when and where people can exercise their constitutional right to bear arms.
“That said, I get very nervous when we start opening up particularly civil or other penalties for elected officials like us who are doing what they may interpret is the right policy to make,” he said. Orr said he is hoping the measure gets altered when it goes to the full House.
Rep. Doris Goodale, R-Kingman, had her own concerns.
“I just hate telling the cities what they should and should not do,” she said. Goodale agreed to support the measure to get it to the House floor.
But Rep. Justin Pierce, R-Mesa, said these kind of preemption laws are appropriate.
"As a state, we need to be cognizant and watchful for when a municipality does something that restricts the rights of people,” he said.
Pierce also rejected the idea that the government closes to the people is the one that has the best idea of what is correct. He said under that logic the state could not step in when a homeowners' association enacted rules that might infringe on rights.