Dan Dunne Takes ont he NRA

The litigator has defended the city of Seattle twice, pro bono, against challenges by gun-rights organizations

Published in 2019 Washington Super Lawyers Magazine

Since the 1990s, Dan Dunne has been fighting for responsible gun ownership. But the cause became a personal one for him in 2001, when his friend, Assistant U.S. Attorney Tom Wales, was shot to death at home. The murder was never solved.

“[It’s] one of those things that continues to spur you on,” said Dunne, a partner at Orrick, Herrington & Sutcliffe, who focuses his practice on securities and corporate governance litigation.

Wales was the president of Washington CeaseFire, and in 1997 he led a campaign for a statewide ballot referendum requiring gun owners to use trigger locks. Dunne helped draft the initiative language, but voters rejected the measure 71 percent to 29 percent.

About a decade later, Seattle drafted a policy to prohibit guns in areas of parks where children play, following the shootings of two people at the 2008 Northwest Folklife Festival. Dunne served as a policy consultant. When four plaintiffs backed by the Bellevue-based Second Amendment Foundation filed a lawsuit challenging the policy, Dunne also provided pro bono defense to the city.

“One of the chief impediments to local gun legislation in the state of Washington is that the Legislature has passed a broad pre-emption statute [originally passed in 1983] that prohibits cities and counties from enacting any criminal regulations of guns,” notes Dunne.

The city’s position was that the policy, issued by Seattle’s Department of Parks and Recreation, was not governed by the statute because it was not an ordinance and imposed no criminal penalties. “The theory was that the city is like any other property owner, and you have a right to set conditions for visitors on that property,” says Dunne.

The trial court ultimately determined that the policy did run afoul of the statute, since there was a possibility that police could be called for a trespass charge if someone carrying a gun refused to leave the premises. The decision was affirmed in the court of appeals, and the state Supreme Court declined to accept review “on the grounds that it was not of sufficient public interest,” recalls Dunne. “That was a different time. Things have happened, there have been mass shootings, and public opinion has evolved.”

In fall 2018, Dunne once again defended the city of Seattle pro bono on a challenge to a gun law, working alongside the New York-based nonprofit Everytown for Gun Safety. This legislation, approved by the city council in July 2018, required gun owners to secure all firearms in a container that could not be easily opened, removed or “otherwise defeated by the use of common tools.” Acceptable gun storage options include safes, gun cases or cabinets, and lock boxes.

This time, the law survived the challenge at the trial court, where the judge accepted the city’s argument that even ardent gun-rights organizations such as the National Rifle Association encourage members to safely store their guns. Accordingly, the judge ruled, the NRA and Second Amendment Foundation—along with two individuals who also sued—lacked standing to challenge the law because their interests were not adverse to the ordinance. The judge did not address the issue of whether Seattle’s storage requirements contravene the state’s pre-emption statute. The new law took effect in February 2019, and its penalties range from $500 to $10,000.

The decision is being appealed, and Dunne expects a decision later this year.

In the meantime, Washington voters approved an initiative in fall 2018 that included raising the minimum age to purchase a semi-automatic rifle to 21, adding background checks, increasing waiting periods and enacting storage requirements. Under Initiative 1639, gun owners can be criminally responsible if their weapons get into the wrong hands and crimes are committed.

In November 2018, the NRA and Second Amendment Foundation filed a lawsuit in U.S. District Court in Seattle challenging the statewide initiative-driven law, with the challenge focused on the increased age requirement and out-of-state sales.

Dunne prefers the uniformity of statewide gun legislation, but any safe-storage law—municipal or otherwise—“will save lives from angry spouses shooting each other, teenage boys shooting themselves, or 8-year-old Johnny shooting Billy by accident,” he says.

Dunne believes gun-storage laws are broadly favored. “I think most gun owners are in support of the concept, [though] they would prefer to make their own choice and not have the government regulate it. Responsible gun owners want responsible gun practices.”

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