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Senate panel asserts state law trumps federal rule
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Senate panel asserts state law trumps federal rule

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Judy Burges

PHOENIX — Declaring state law to be above all others, a Senate panel voted Tuesday block federal gun laws they believe violate the Second Amendment, and to punish the city of Tucson for enacting its own restrictions.

The votes were part of a series of actions by the same Senate committee asserting state supremacy, including:

  • Prohibiting state and local governments from helping any federal agency that collects metadata, like phone and email records, without a warrant, and barring any official who cooperates from ever holding public office.
  • Declaring county sheriffs are supreme authority, meaning they can arrest federal officers who try to arrest someone or seize property without first getting their consent, and authorizing the prosecution of county attorneys who refuse to bring charges of kidnapping for arrests done without the sheriff’s permission.
  • Allowing anyone or any group “adversely affected” by a local law seen as conflicting with state law to sue, with the ability to collect legal fees and damages up to $100,000, and providing for removal from office and $5,000 fines for any local elected or appointed official who knowingly and willfully violates state law.

All of the votes, along party lines in the Republican-controlled Committee on Federalism, Mandates and Fiscal Responsibility, were based on arguments that the state has to protect individual rights from being trampled.

Potentially the most far reaching is SB 1384, requiring federal officials to get permission from a county sheriff before taking certain actions. Sen. Judy Burges, R-Sun City West, said it simply recognizes the supremacy of the state over the federal government, and that sheriffs are each county’s chief constitutional and law enforcement officer.

SB 1384 would make it illegal for any federal employee, including a law enforcement official who has not been first given permission by the sheriff, to make an arrest, conduct a search or seize property.

Burges said the law is needed because it is “a duty of the sheriff to protect and defend the citizens’ business of his county from any and all abuses of constitutional rights and freedoms, even in the name of law enforcement.”

Exceptions are provided for incidents on federal lands or where the officer has witnessed a crime that requires immediate arrest. And it would not apply to customs or Border Patrol officers.

Burges said there are things already happening in Arizona that are “potential flash points,” including federal agencies closing roads, and in one instance, in Greenlee County, the confiscation of cattle and sale of them at auction in a dispute between the U.S. Forest Service and the rancher.

Burges sees her legislation as a way for the state to fight back against things like the federal government requiring that wolves be accommodated in Arizona — something two other committees have voted to spend $250,000 fighting in court.

She said there already are problems with wolves stalking children, and her legislation affirms the right of the sheriff to defend Arizonans, including shooting a wolf without fear of a $50,000 federal fine.

The broader bill on gun rights approved Tuesday, SB 1330, was offered by Sen. Kelli Ward, R-Lake Havasu City.

The measure makes it illegal for any public official or employee to “enforce any federal act, law, order, rule or regulation that relates to a personal firearm, firearm accessory or ammunition within the limits of this state.” It also criminalizes providing assistance to any federal agency trying to enforce a federal law or rule.

But it’s also would cut off state aid to communities that adopt ordinances or rules to comply with federal law that are found by a court to violate the Second Amendment. Dale Wiebusch, lobbyist for the League of Arizona Cities and Towns, said that puts them in an “untenable situation.”

He said a city may adopt an ordinance in compliance with a federal law, only to learn years later, after a court hearing, that federal law is unenforceable. Cutting off state aid for something city officials had no way of knowing was illegal would be unfair, he said.

Sen. David Farnsworth, R-Mesa, was unsympathetic, saying he believes the federal government is a creation of — and subservient to — the states.

The panel separately targeted Tucson in SB 1291, voting to punish any community enacting its own gun laws found to conflict with state statutes.

State law already bars cities from enacting regulations stricter than state statutes. But Sen. Steve Smith, R-Maricopa, said Tucson has ignored that preemption.

One Tucson ordinance allows police to request a breath sample from someone who has negligently discharged a firearm and appears intoxicated. A second requires people to report the loss or theft of a gun.

Former Attorney General Tom Horne said in an opinion two years ago that both measures are pre-empted by state law, but city officials said Horne’s opinion is his opinion and not binding, and both measures remain on the books.

Wiebusch said local councils should be able to enact local laws that their constituents want.

But Smith said, “If it is direct violation of state law and state constitution law, I don’t care what they want.”

Philosophical issues aside, Wiebusch questioned whether lawmakers could mandate that an elected official be ousted, one of the penalties in the bill.

“I don’t think you can fire the mayor,” he told lawmakers. “I think you have to go through a recall.”

A similar measure was vetoed last year by then-Gov. Jan Brewer who called the measure unnecessary, saying there already are ways for people to challenge local laws they believe to be illegal.

Follow Howard Fischer on Twitter at @azcapmedia.

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