PHOENIX — Local governments can't transfer unclaimed firearms to the embattled Ukrainian government, regardless of how well-meaning the goal, Arizona Attorney General Kris Mayes concluded Wednesday.
The Phoenix city council acted illegally when it approved an ordinance that would use an exporter to funnel more than 500 weapons to the National Police of Ukraine, Mayes said in a formal legal finding. That is clearly prohibited by state law which requires seized and unclaimed weapons to be sold off, with the proceeds going to the city, she said.
Mayor Kate Gallego said she is disappointed by the ruling and said the city will repeal the ordinance.
But Gallego also took a slap at the Republican-controlled Legislature for enacting the 2000 law which prohibits what Phoenix did by spelling out that any weapons obtained by cities can be disposed of solely by selling them to a licensed firearms dealer who then has to sell them to the public, with the proceeds paid into the city's general fund.
"State leaders must do better to prioritize public safety and give cities the tools to keep guns used in violent crimes from re-entering our communities," Gallego said.
That drew a slap from Rep. Quang Nguyen, R-Prescott Valley, one of two state lawmakers who first asked Mayes to look into the city's actions.
"We're not handing these guns out like candy on Halloween to just about anybody," Nguyen said. Nor, he said, can they wind up in the hands of those who have committed crimes.
Instead, Nguyen said, the law requires them to be "sold back to law-abiding citizens" who, like anyone who purchases a weapon from a licensed firearms dealer, has to go through a background check.
Mayes' ruling should come as no surprise.
Tucson enacted a 2005 ordinance saying that weapons obtained by the police department through seizure or surrender must be destroyed.
In that case, then-Attorney General Mark Brnovich issued a similar finding of illegality. But the city, rather than rescinding the ordinance, chose to fight in 2017 all the way to the Arizona Supreme Court.
Tucson lost.
And given that ruling and the wording of Mayes' new decision, it appears there is little wiggle room in the law for local governments to do anything with weapons that come into their possession other than sell them off or trade them for other police equipment, regardless of the merits of their claims.
The complaint last month by Nguyen and Rep. Selina Bliss of Prescott that the Phoenix action violates the law is what brought Mayes into the dispute.
That's because rather than seek a court order to overturn the move by Phoenix, the pair instead used a 2016 law which allows any state lawmaker to ask the attorney general whether the actions by a local government are legal. That triggered a requirement for Mayes to investigate and seek a response from the community.
The teeth in that law is that if the attorney general believes the action is illegal, she is required to give the city 30 days to "resolve the violation." If that does not happen to her satisfaction, she then would tell the treasurer to withhold state revenue sharing dollars — in the case of Phoenix, possibly more than $600 million.
Phoenix officials responded by saying there was no difference between what the city was doing and decisions by others to transfer law enforcement items to other equivalent agencies.
Gallego specifically cited the move last year by the state Department of Emergency and Military Affairs, under the direction of then-Gov. Doug Ducey, to collect 9,000 pounds of surplus equipment from local, county, state and tribal enforcement agencies to aid Ukraine. The items shipped overseas included bullet proof vests, 77 helmets, miscellaneous tactical clothing, footwear, pads and shields.
"This situation is no different," the mayor said.
Yes it is, said Mayes.
"Arizona law requires cities to dispose of unclaimed firearms by selling them in the manner provided by statute," Mayes wrote.
"A donation is not a sale," she continued.
Mayes also rejected any claim that what Phoenix does with its unclaimed firearms is a matter of "purely local concern," beyond the reach of state lawmakers and state law. She said that argument was specifically rejected by the Arizona Supreme Court when Tucson raised it.
And Mayes said the the city's purpose in adopting the ordinance to transfer the firearms to Ukraine is not relevant.
"While the laudable intent may be similar (to Ducey's actions), it is not a defense that the political subdivision was acting in good faith," she said.
Still, Mayes made it clear she was ruling strictly on what the law requires, not the merits of the city's actions.
"This report should not be construed as a rebuke of the public spirit underlying the city's desire to aid Ukraine or as an endorsement of the policy underlying Arizona's firearms disposition statutes," Mayes said. "Nor should it discourage future support and donations to Ukraine or elsewhere that can be carried out in compliance with Arizona law."
One thing that Mayes' order cannot do is undo the transaction: The city already has sent the weapons to the exporter.
But a spokesman for Mayes said that, as far as she is concerned, once the city repeals the ordinance — and essentially promises not to do this again — that satisfies her.
The fact that the weapons were illegally donated and cannot be recouped to sell off, as the law requires, said Richie Taylor, is beyond the scope of what his boss can consider under the law that allows Mayes to decide whether to impose financial penalties.
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