After a legal disagreement, Spokane City Council may take another step against militias

Spokane County’s prosecutor has cautioned that an antiquated state law regulating militias is difficult to enforce – and now, the city of Spokane may circumvent him.

The city could incorporate the state ban on unlawful assembly of militias into Spokane city law. Doing so would allow the city to prosecute the misdemeanor crime in its own municipal court, not the county court.

It would cut Spokane County Prosecutor Larry Haskell out of the process, leaving the matter to the city prosecutor’s office.

Spokane City Council President Breean Beggs has pushed the city to enforce the state militia law in recent months. Incorporating it into city law could happen as soon as January if approved by the City Council.

In November, as the City Council passed a resolution imploring the Spokane Police Department to enforce the state law, Haskell warned in a post on Facebook that militias “are not subject to prosecution for mere presence” and that the bar to prosecute the state law is high.

Incorporating the state militia law into city code would be the second of Beggs’ two-part response to the gathering of militia members in downtown Spokane during protests over the May 25 police killing of George Floyd in Minneapolis and racial injustice earlier this year.

In a nonbinding resolution, Beggs and the council called for city police to enforce the Washington state law, which says militias unrecognized by the state cannot “associate themselves together as a military company or organize or parade in public with firearms.”

But law enforcement officials, including Haskell and Spokane Police Chief Craig Meidl, have questioned the viability of prosecuting someone under the century-old law and have expressed concern about infringing on Second Amendment rights.

Haskell essentially argued that militias – both organized and unorganized – are constitutionally protected both federally and in Washington, and cannot be prosecuted simply for gathering downtown.

He contended that a prosecutor would have to prove that a person is a member of a militia not recognized by the state in order to successfully bring charges against them.

Beggs disagrees with Haskell’s interpretation and said “you don’t have to prove a negative in order to prosecute.”

“The defendant would have to prove that they were in a recognized militia,” Beggs said.

State law, he said, “makes it clear that when somebody is acting as a private military that’s a crime, essentially, and there’s a few exceptions that are listed pretty clearly.”

The city’s purpose in incorporating the state law into city code would not be to circumvent Haskell, Beggs said, noting the same thing is done for other state laws. Still, he acknowledged that “given my reading of (Haskell’s analysis), I think it’s important to have someone that understands the law” enforcing it.

Haskell could not be reached for comment.

The city council’s resolution in November noted that the Washington State Constitution states “nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”