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branford

(4,462 posts)
12. It's not my area of law, I've not seen the actual lawsuit, I have not reviewed the state preemption
Wed Aug 26, 2015, 02:31 PM
Aug 2015

law, and overall the matter is somewhat complicated.

Disclaimers aside, the city would not have immunity to a federal civil rights action or against a declaration that it violated state law. In this instance, the city will need to bear a high burden of proof either to demonstrate the tax is constitutional or that it is not preempted. The exact level of scrutiny of any constitutional analysis is an evolving area of law, and I don't know the level of deference given to local ordinances in Washington state local/state conflict of law jurisprudence. Any limitations of damages for breach of state law would be determined by Washington state law.

If the plaintiffs prevail in a civil rights cause of action, they are generally entitled to recover provable direct damages and legal fees. It's doubtful that plaintiffs like the NRA and SAF actually suffered any damages, and given that the law just passed (I don't know if it is yet effective or if the plaintiffs have or will seek an injunction), the damages suffered by the retail plaintiffs would be similarly de minimus. I'm uncertain about the result if a Washington state court strikes the city ordinance as violating state preemption without reaching the constitutional issue at all or if state law explicitly provides for legal fees or statutory damages.

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