Pima County Supervisors took action Tuesday to put gun control measures into the hands of local jurisdictions.
The Board of Supervisors voted 3-2 to call on the Arizona Legislature to repeal a law that bars local governments from adopting rules restricting gun use and direct the Pima County Attorney’s office to assess a potential legal challenge.
ARS 13-3108 has been the main hurdle in the way of the county requiring private gun sellers to run background checks at gun shows on the Pima County Fairgrounds, where unlicensed dealers can anonymously sell guns without conducting background checks on purchasers.
“It is wrong, due to the existence of this statute, for state government to stand in the way of local governments who seek to take action to address mounting public concerns about gun safety, gun violence and the need for common sense gun regulations,” Supervisor Rex Scott, who proposed the motion, said at the meeting. “If the people who represent us in Phoenix do not act to repeal this statute, we will see them in court.”
A potential legal challenge
The board adopted a resolution in December 2019 to call on the U.S. Senate to approve a bill requiring background checks on all private firearms sales, including those at gun shows. Tuesday’s resolution, however, gives specific direction to the county attorney to analyze potential legal challenges to the state’s law prohibiting the county from taking on its own gun reform measures.
The resolution asks the county attorney’s office to look into how the county’s authority as a public health agency could create a legal argument in its ability to enforce “regulations necessary for the public health and safety of the inhabitants,” per another state statute, the resolution says.
Pima County Attorney Laura Conover’s office has a little over three months to come back to the board with legal options by Nov. 15.
With the state law standing in the way of county gun reform measures, Scott decided it was best to take on the hurdle itself instead of finding ways to work around it.
“Because of those situations, it then became apparent to me that the only logical course of action was to try and take on the statute and to try and take it on politically,” he said. “What I’ve heard from Ms. Conover and her team is that they’re going to look at every possible strategy that we can use if we decide to challenge the statute legally.”
However, the board also voted Tuesday to release previously attorney-client privileged memos about the county’s authority to cut contractual ties with gun show operators.
In one of the memos, Samuel Brown, the county attorney’s office’s chief civil deputy, told supervisors that the prospects for success if the county were to challenge Arizona statutes preempting local governments “are not high.”
“Even though the County has broad public health authority, this specific statute (section 13-3108) likely preempts County action,” Brown wrote, later adding, “The County would need to show that the statute is unconstitutional, and we have yet to identify a viable argument to challenge its constitutionality.”
Two supervisors opposed
Board Chair Sharon Bronson said she wouldn’t support Scott’s motion and that action against gun violence “needs to start with the federal government.”
“I think (the motion) has unintended consequences, I think it will directly impact our state shared revenue and I think it’s too broad in its scope,” she said.
Any rules local governments adopt in violation of the state law could result in a civil penalty of up to $50,000 and actual damages up to $100,000. Plus, the state’s attorney general could rescind the millions of dollars in state aid the county receives from shared revenues if a violation of state law is found.
Supervisor Steve Christy, the other dissenting vote, called the portion of Scott’s motion citing public health concerns a “ham-fisted deception” and said it puts all gun ownership rights at risk.
“Why couldn’t Supervisor Scott just be honest and state the truth? Through his resolution presented before us today, Supervisor Scott wants to take away everyone’s guns,” Christy said.
Scott said Christy’s comments are unfounded and that he has no intentions to completely strip Second Amendment rights.
“That kind of rhetoric and tactics are familiar to anybody in this country who has called for common sense gun regulations, because anytime something like what I’m discussing today is brought up, immediately folks like my colleague from District Four will say that we are coming after the Second Amendment in total … That is nonsense,” Scott said.
The supervisor said although Arizona’s legislature has historically rejected gun reform measures, he thinks his bid to give the county control could be successful.
“This country leads the world in every gun violence statistic that you can find, and our public, the people who put us in office, expect us to deal with this issue,” Scott said. “So if the legislature is not going to lead on this issue, they need to get out of the way of local governments that would like to take some purposeful action to protect our people.”
