PHOENIX βΒ Two Republican lawmakers want Attorney General Kris Mayes to financially punish the city of Phoenix if it refuses to overturn a city council decision to donate unclaimed weapons to Ukraine.
And the outcome of this spat could affect what other cities around the state are allowed to do with the firearms that come into their hands.
In a new complaint, Reps. Quang Nguyen of Prescott Valley and Selina Bliss of Prescott contends the move violates state laws that generally require firearms that are seized or turned into a city to be sold off or traded for other police equipment. The only exception is when the weapon itself is illegal, like a sawed-off shotgun.
But rather than seek some sort of court order to overturn the move β assuming they have standing β the pair instead is using a 2016 law which allows any state lawmaker to ask the attorney general whether the actions by a local government are legal. That triggers a requirement for the attorney general to investigate and seek a response from the community.
If the attorney general believes the action is illegal, the law requires that person to give the city 30 days to "resolve the violation." If that does not happen to the satisfaction of the attorney general, the treasurer an be told to withhold state revenue sharing dollars and redistribute them to everyone else. For a city the size of Phoenix, that could be more than $600 million.
For the moment, though, it does not appear the city is going to back down.
The immediate spat is over a Phoenix policy which says any property that is unclaimed for 30 days can be disposed of by the city. Items range from bicycles and motor vehicles to jewelry.
And there also are firearms.
Under the city code, those weapons can be kept for use by the police department. They also can be sent to a museum. And rare or collectible items can be sold at public auction.
But it also permits the city to sell, lend or transfer any firearm "to any local, state or federal law enforcement agency," as long as there is no cost to the city.
Last month the council voted unanimously to authorize the city manager to enter into a contract with DTGruelle, a private company which provides import and export services. The city would transfer between 500 and 600 unclaimed firearms which Gruelle would send to the National Police of Ukraine.
A city spokesman said that is authorized under the transfer provision, saying there is no real difference between a domestic law enforcement agency and one in another country.
Nguyen and Bliss complained at the time. But with the city refusing to back off, they raised the ante with the new complaint to Mayes, arguing that the city's ordinances are irrelevant because they conflict with state statutes.
One of those prohibits local governments from enacting any local dealing with "the possession, sale, transfer, purchase, acquisition or use of firearms in Arizona."
And a separate statute says firearms shall be sold to someone who is authorized under state and federal law to receive them β presumably a licensed gun dealer β who then is required to sell the firearm to the public.
"And that money goes to the general fund," said Nguyen.
Nguyen insisted the complaint has nothing to do with the politics of supporting Ukraine in its war with Russia. And he said there may be ways for Phoenix to help β legally.
"Why not give food?" Nguyen asked. "Why not sell these weapons or trade them for food or whatever it is."
And he also said it has nothing to do with his views on firearms and the Second Amendment, even though he is the president of the Arizona Rifle and Pistol Association.
Mayor Kate Gallego pointed out in a statement that the city and even the state previously have transferred law enforcement items to other equivalent agencies.
She 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," Gallego said.
"The state Legislature welcomed support for Ukraine through similar actions under former Gov. Ducey," the mayor said. "And this transfer was done under the same logic and intent."
Nguyen, however, said the big difference is that Ducey's actions did not involve firearms, citing that section of law that says the rules for disposing of any other kind of property just don't apply to firearms.
This isn't the first time there has been a legal dispute over what cities can do with weapons.
In 2017 the Arizona Supreme Court voided a 2005 Tucson ordinance that said when the police department obtained a gun through seizure or surrender, the agency "shall dispose of such firearm by destroying the firearm." The justices said it is clear in their minds that it trumped by multiple existing state laws to the contrary.
That lawsuit actually started with the same kind of complaint filed against a city that Nguyen and Bliss are using here.
In that case, Mark Brnovich who was attorney general, concluded the city was exceeding its authority. But the city, rather than rescinding the ordinance, chose to fight, result in the Supreme Court ruling.
Tucson lost.
"In no uncertain terms, the Arizona Legislature has declared that 'firearms regulation is of statewide concern' and has expressed its intent to preempt 'firearms regulations in this state' and thereby 'limit the ability of any political subdivision of this state to regulate firearms,' " wrote Justice John Pelander for the high court.
Nguyen said there's another reason he believes state law restricts what cities can do with firearms: the lack of ability to track the weapons.
He specifically cited what had been a practice by the Bureau of Alcohol, Tobacco, Firearms and Explosives going back to 2009 where agents told weapons dealers to allow purchases to go through to "straw buyers," those who were legally entitled to have weapons but where there was a reason to believe they were purchasing them for someone else. The goal of letting the guns "walk" was to allow ATF to follow the flow of firearms to Mexican drug cartels.
But the program, known as Operation Fast and Furious, came under scrutiny and eventually was scrapped after one of the "walked" guns ATF was supposed to be tracking ended up at the scene where Border Patrol Agent Brian Terry was killed in 2010.
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