By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State lawmakers are proposing a tactic to keep local officials from enacting new gun regulations: personal fines against those who approve these ordinances.

Legislation given final approval this week would allow a judge to award a $5,000 civil penalty against any elected or appointed official who “knowingly and willfully” violates an existing statute that preempts cities and counties from enacting any law, rule or tax relating to firearms. That covers everything from possessing and carrying a weapon to rules about how they can be stored, discharged or even given as gifts.

Sen. David Gowan, R-Sierra Vista, made it clear who he currently has in his cross hairs: the Pima County Board of Supervisors.

The proposal, Senate Bill 1705, comes on the heels of a Pima County Superior Court judge striking down an ordinance that required gun owners to report the theft or loss of a firearm within 48 hours or face a fine of up to $1,000.
Judge Greg Sakall cited existing provisions in the state criminal code that preempt local government from enacting any of its own rules that are stronger than state laws. And there is no parallel state law.

But Michael Infanzon, lobbyist for the Arizona Citizens Defense League, which filed the lawsuit, said the experience his organization has had with both Pima County and the city of Tucson convinces him that, despite the court ruling, something more is needed to get the attention of officials who approve these laws in the first place. And that “something more,” he told Capitol Media Services, is hitting those who flout the law in the wallet.

The bill already has been approved by the Senate.

There was no immediate response from the Democratic governor to this specific plan, though she announced Thursday she’s not going to sign anything until she gets an acceptable plan to fund services for developmentally disabled people. 

Hobbs has a history of vetoing gun-related bills, ranging from allowing guns on school campuses to expanding the state’s version of a “stand your ground” law that would have expanded situations in which people can use deadly physical force.

Infanzon said the heart of the issue are the hurdles that someone protesting a local gun ordinance has to leap.

One option is to file a complaint with the Attorney General’s Office to ask whether the adopted measure runs afoul of the preemption law. If the AG says the local government is acting illegally, that can lead to a lawsuit or even a threat to withhold state revenues.

That’s what happened in 2016, for example, when Tucson ended up in court with then-Attorney General Mark Brnovich. It ended with the Arizona Supreme Court ruling the city was wrong.

The other option is for someone to file suit, as was the case with the challenge to the county ordinance on reporting lost guns.

Infanzon acknowledged, in both cases, the questioned laws went away. But he said that came at the expense of taxpayers who had to foot the legal bills.
Even the underlying law prohibiting local regulations doesn’t have a lot of teeth. Infanzon said the maximum penalty now for a city or county that knowingly and willfully violates the preemption law is $50,000 — again, money paid by taxpayers.

A better solution, he said, would be to deter local officials from adopting the ordinances in the first place using the threat of a personal penalty. That’s exactly what SB 1705 is designed to do.

It starts with that $5,000 penalty.

But SB 1705 is worded so the local government can’t use any public funds to defend any local official personally accused of breaking the law. It also spells out that any official found by a judge to be culpable cannot be reimbursed by the government for the fine.

Infanzon said it shouldn’t have to come to that.

The lobbyist said he has made it part of his practice to regularly peruse city and county ordinance and regulations to look for what he says are violations. Infanzon said when he comes across problems, a call to a city attorney is usually sufficient to get the offending provision removed.

He said that’s the way it’s worked in the past with places like Goodyear and Eloy.

That, Infanzon said, has not been the case, particularly with Pima County.
In those situations, it starts with writing a letter, filing a complaint with the Attorney General’s Office, getting an opinion from that office “and them taking them to court to be able to get the illegal law that they put on the books removed.”

That includes the latest lawsuit filed on behalf of Infanzon’s group by the Goldwater Institute over the requirement to report stolen guns or face that $1,000 fine.

“It’s going to cost the taxpayers hundreds of thousands of dollars in fines and attorneys’ fees because the elected board of supervisors — minus one — voted to implement an illegal law,” he said. That exception was Steve Christy, the lone Republican on the board.

Infanzon said he believes the threat of a $5,000 fine for which local officials are personally liable will be enough to nip such proposals as that one.

Still, anyone seeking such a penalty would have to show not only that they voted for or implemented a law beyond local authority but also that the action was knowing and willful. Infanzon said that could be proven through other evidence.

“If they had been advised by legal counsel and they’re still willing to violate our state statutes, they will be held accountable on an individual basis,” he said.

Infanzon said that in the latest lawsuit, Goldwater Institute had evidence the county attorney told the board the move was illegal.

But that’s not the argument made by Sam Brown, the chief civil deputy, when he defended the ordinance in court. He argued nothing in it ran afoul of the state’s preemption because requiring someone to report a stolen weapon did not interfere with anyone’s right to own a gun.

No one from any city or town showed up to testify against the measure. There was no immediate response from either Tucson or Pima County.