PHOENIX — Two new Tucson laws designed to help police deal with gun-related crimes are pre-empted by state law and unenforceable, Attorney General Tom Horne said Wednesday.
In a formal legal opinion, Horne said the Tucson City Council lacks the legal authority to allow police to request a breath sample from someone who has negligently discharged a firearm and appears intoxicated because of a state law barring cities from passing laws relating to the “discharge and use of firearms.’’
Similarly, Horne said Tucson cannot require people to report the loss or theft of a gun to police because it relates to the possession or transfer of firearms.
And Horne said the $100 civil penalty for failing to report a missing gun conflicts with another law that bars gun ordinances that have a penalty greater than what exists in state law.
“I think that’s tortured logic,’’ said Councilman Steve Kozachik. He pointed out that there is no state law on reporting lost weapons, meaning, by definition, there is no state penalty.
“If the law is silent on the issue, how can we be violating their pre-emptive statute? he asked.
Councilman Paul Cunningham called Horne’s action “asinine,’’ saying the measure on guns and alcohol use was designed not to conflict with any state law.
It already is a violation of state law to negligently fire a weapon. Cunningham said this law simply allows police to collect evidence of intoxication — getting a court-ordered search warrant if necessary — to help support such charges in court.
Horne, however, said none of that is relevant because Arizona law prohibits cities from enacting any law that even relates to the transportation, possession, carrying, sale, storage, discharge or use of firearms. And state statutes specify these prohibitions apply to “a political subdivision acting in any capacity.’’
“Such broad language indicates that the Legislature intended to make itself the only decision maker in the state law field of Arizona firearms regulation,’’ Horne wrote.
Cunningham, however, sees something else at play: the 2014 election. “A lot of the AG’s motivation to do this is to score some political points with his base,’’ Cunningham said.
Horne disputed that contention. “If they have a problem with the law, they should talk with their legislators,’’ he said. “They shouldn’t ‘shoot the messenger.’”
Cunningham was not optimistic about prospects for changing the law. “Right now I think with the climate in the Legislature, it’s probably unlikely,” he said.
While it does not carry the force of law, Horne’s formal written opinion does have some legal clout: Public officials and employees are not liable for anything they do as long as they are relying on such opinions. And courts, when reviewing statutes, do pay some attention to them.
However, the opinion doesn’t stop the city from trying to enforce its ordinances until they are challenged legally, and then having the legality of both formally decided by a judge.
City Attorney Mike Rankin said he couldn’t comment on what the city might react to the opinion because he had not yet seen it.