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Cherry v. Municipality of Metropolitan Seattle

April 18, 1991

JOHN CHERRY, RESPONDENT,
v.
THE MUNICIPALITY OF METROPOLITAN SEATTLE, PETITIONER



En Banc. Guy, J. Dore, C.j., Utter, Brachtenbach, Andersen, Durham, and Smith, JJ., and Callow, J. Pro Tem., concur. Dolliver and Johnson, JJ., did not participate in the disposition of this case.

Author: Guy

The Municipality of Metropolitan Seattle (Metro) seeks review of a Court of Appeals decision that Metro's policy prohibiting employees from possessing concealed weapons while on duty or on Metro property was in conflict with state law regulating the licensing and possession of firearms. The respondent, John Cherry, had challenged an arbitrator's determination that he was properly discharged by Metro for violation of Metro's no-weapons

policy. The Court of Appeals held that RCW 9.41.290 preempted and invalidated Metro's regulation of firearms possession by municipal employees. We reverse.

Facts

John Cherry was employed for 14 years as a Metro bus driver. On August 20, 1987, as he boarded a Metro vehicle on Metro property to begin his shift, Cherry was confronted by his supervisor regarding reports that he carried weapons and drugs while on duty. Cherry invoked his right to union representation. Subsequently, Cherry and his supervisor were joined by a union steward and another Metro supervisor. Cherry was ordered to empty his pockets and carrying bag. He was also asked to retrieve his jacket, which he had placed in his car while awaiting the union representative. In the carrying bag were found an electric cattle prod that measured approximately 12 to 18 inches in length, and a 6-inch brass rod pointed at both ends that Cherry had purchased at a martial arts shop. Cherry also had a loaded .38 caliber pistol concealed in his Metro jacket, for which he had a valid concealed firearm permit. Cherry stated that he carried these weapons for protection in case he was attacked. He added that there were many jobs, but only one life. The bag further contained prescription medications, including several drugs which could cause drowsiness, and codeine pills. Under Metro's substance abuse policy, use of prescription and nonprescription medication that can impair performance must be reported to a supervisor. Cherry had not complied with this requirement.

Metro concluded that Cherry had violated two Metro policies: first, the carrying of concealed weapons was a flagrant violation of the no-weapons policy; and second, Cherry's possession of codeine without medical authorization and his failure to report his use of prescription drugs that could impair his job performance was a violation of the substance abuse policy. On August 27, 1987, Metro advised Cherry that each of the two policy violations was considered "gross misconduct", and by the terms of the collective

bargaining agreement with his union, "gross misconduct" was punishable by discharge. Metro decided there were no mitigating factors warranting a lesser penalty. Cherry was initially suspended without pay for 30 days, followed by termination of his employment on September 25, 1987.

Cherry had the option of seeking review of his discharge either through the grievance procedures in the collective bargaining agreement between Metro and his union or through arbitration authorized by Metro resolution. He chose review of his discharge through arbitration. On February 23, 1988, based upon a 2-day hearing and review of briefs, the arbitrator rendered an opinion upholding Cherry's termination. The opinion maintained that Cherry "was properly discharged for possession of weapons while on duty and violation of Metro's Alcohol and Substance Abuse Policy." The opinion further stated that Cherry's violation of the no-weapons policy rendered unnecessary a decision as to whether Cherry's substance abuse policy violation by itself rose to the level of gross misconduct warranting Cherry's dismissal.

Cherry appealed the arbitrator's decision by filing an action in King County Superior Court. He claimed a violation of his constitutional right to bear arms and that RCW 9.41.290, the preemption amendment to the Uniform Firearms Act, invalidated and preempted Metro's firearms rules. The arbitrator, Cherry contended, had no power to decide these claims. Cherry argued the arbitration decision to uphold his termination was based solely upon his possession of a handgun, and was inconclusive as to the effect of his possession of the other weapons and violation of the substance abuse policy. Metro moved to dismiss pursuant to CR 12(b)(6). This motion was denied.

Metro filed a motion for summary judgment, pursuant to CR 56, to dismiss Cherry's claims. Cherry filed a cross motion for summary judgment. On July 26, 1988, the trial court confirmed the factual findings of the arbitrator, as neither party had challenged them, and reached ...


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