UPDATE: AZ Supreme Court rules in state's favor in lawsuit over destruction of seized guns

Published: Aug. 17, 2017 at 1:30 AM MST|Updated: Aug. 17, 2017 at 6:36 PM MST
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TUCSON, AZ (Tucson News Now) - In the battle between the city of Tucson and the state of Arizona over the destruction of seized guns, the Arizona Supreme Court ruled in the state's favor Thursday, Aug 17.

The Tucson City Attorney Mike Rankin issued his opinion in an email early afternoon.

City Attorney's comment on Supreme Court's decision:

Today, the Arizona Supreme Court held that the City of Tucson's ordinance providing for the destruction of unclaimed and forfeited firearms is preempted and superseded by state laws that direct cities to sell those firearms to a licensed firearm business. The Supreme Court did not rule on the constitutionality of most of the provisions of Senate Bill 1487, the state law that provides for the withholding, or the threat of withholding, of state shared revenues. The Court did determine that the City is not required to post the bond that is otherwise required under SB 1487, based in part upon the Court's skepticism of the legality of that provision. I of course am very disappointed in the Court's decision, but I appreciate the fact that the City had the opportunity to challenge SB 1487 and to defend its autonomy as a Charter city without putting at risk the state shared revenues that are so vital to funding the City's ability to provide services to its residents.

Which was closely followed by at statement released by State Attorney General Mark Brnovich, who filed the action on behalf of a state lawmaker:

"This is a monumental victory for the rule of law," said Attorney General Mark Brnovich. "Today's ruling makes it clear that cities cannot ignore state law. Arizonans have entrusted me to enforce the law and I intend to uphold their trust. Tucson must now reverse their illegal ordinance."

In December 2016, the Arizona Attorney General's Office filed a Petition for Special Action alleging the City of Tucson's gun destruction ordinance violates Arizona law. State law prohibits local governments from destroying firearms. However, the City of Tucson enacted an ordinance that requires police to destroy seized firearms.

SB1487, passed by the state legislature in 2016, requires the Attorney General to file a Petition for Special Action if an investigation finds a local government has enacted an ordinance that violates state law or the constitution. Representative Mark Finchem submitted a formal SB1487 request for an investigation into the City of Tucson's gun destruction ordinance. The Arizona Attorney General's Office launched an investigation and found that firearm regulation, including the regulation of the destruction of firearms, is a matter of statewide concern that involves the right to bear arms which is protected under State and Federal Constitutions. Additionally, the state has an interest in regulating firearms as a way to preserve public safety as well as an interest in regulating police departments' conduct, including firearms disposal. The preservation of order, the protection of life and property, and the suppression of crime are primary functions of the state.

The court issued the following opinion:

"We accept jurisdiction of the State's special action and hold, in accordance with article 13, section 2 of the Arizona Constitution, that A.R.S.  12-945(B) and 13-3108(F) supercede Tucson Code 2-142."

The question behind the lawsuit filed by state Attorney General Mark Brnovich is what can the city legally do with seized and confiscated guns?

A Tucson ordinance passed in 2005 allows the city to destroy seized guns. However, a 2013 state law requires confiscated guns to be sold by cities to licensed gen dealers or be used by local police for training purposes.

If cities don't comply, the state can withhold millions of dollars in state funding under SB 1487, which was passed last year, and for Tucson that amounts to $10 million a month.

However, the high court decision did not rule on whether the state can actually withhold the dollars.

It also did not rule on the constitutionality of SB 1487, which means that provision stands for the time being.

The city says it will comply with the ruling and repeal the ordinance at its next council meeting although a special meeting may be called to take care of it.

That has not been decided yet.

But most in the city say the case goes far beyond the question of gun destruction.

According to City Council Member Steve Kozachik it's about home rule and whether a community has the right to make its own governing decisions.

"This is an affront to the local decision authority, not only us as a local governing authority body, but to all the constituents here in Tucson who say we're electing these folks to make these decision," he said.

The city argued the state constitution gives Tucson the right set its own policies when it comes to local issues and the state can't threaten to withhold money.

Tucson is a charter city, as are 17 other Arizona cities and towns, which gives it autonomy to make governing decisions that sometimes run counter to state law.

The state tried to force Tucson to change its election dates and election process in years past but failed because of the charter issue. But the court ruled when it comes to guns, the state has a "statewide concern" to determine gun right and issues.

Kozachik believes it goes beyond just guns and is "absolutely a home rule issue."

"It has nothing to do with the 2nd Amendment," he said. "The same argument would apply whether its a gun, a car or a carrot."

He goes on "this is a local issue and should remain a local issue."

Arizona attorney general Mark Brnovich sued the city last year.

Tucson City Council voted to temporarily stop destroying seized guns late last year, until this lawsuit played out in court.

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