For Washington State activists/lawyers

[p35]

Just got this from someone else:

"I received an order from the Court of Appeals today ordering supplemental briefing. It also invites amicus briefs. The order reads, in part, "In addition, within the same time limit [20 days], either party may notify amicus who may wish to file a brief on the issues that the court will entertain motions for such filings."

The issue in the case is the constitutionality of RCW 9.41.040(2)(a)(iii), which makes it illegal for minors to possess firearms. The facts of the case are that my 17 YOA client was a passenger in a vehicle stopped for speeding. A loaded handgun was eventually found under the passenger seat. The Court of Appeals wants to know whether DC v. Heller applies and, if so, how."

If anyone's interested let me know.

 

[Henry Bowman]

Can you get us any additional information ? Having the full case name, case number, county, etc. would make it possible to research and determine if an amicus brief would be in order.

 

[Dave Workman]

WAITAMINUTE!!!!

Somebody is playing a little loose with the statute.

Read the statute in its entirety. This statute has to do with the criminal possession of a firearm, not a general ban on gun ownership by juveniles. It's not illegal in Washington for minors to own firearms.
It is illegal under most circumstances for a juvenile to possess a handgun, particularly outside the home, if he's cruising around with some teenage buddy.

The statute's Subsection 1 makes illegal the possession of a firearm if the individual has previously been convicted or found not guilty by reason of insanity of any serious offense (felony level)...

Now, Subsection 2 makes it a crime of unlawfull possession of a firearm if that person does not qualify under Subsection 1...and paragraph iii deals with minors under age 18. This kid was 17, right?

The note doesn't say how old the driver was where the 17-year-old was a passenger, and it doesn't say whose gun this was.

I'm not going to lose a wink of sleep over this one until there is more information about the specifics of this incident.

 

[p35]

Not my case, but I think the point is that the gun was found under the seat the kid was in so they accused him of being in possession of it. Of course, there must have been more facts than what's stated here (which is all I know).

Dave raises some interesting factual questions that could have been a reason to find him not guilty, but if he'd been acquitted he wouldn't be at the Court of Appeals. I've seen similar cases go both ways at trial.

 

[Bobarino]

not enough info....

(IANAL)

questions:

age of the driver?

who's car is it?

who's gun is it?

did either admit ownership of the gun?

why did the cops search the car?

what was the probable cause or were they given permission by the driver?

does the driver have a CPL?

unless the 17 y/o admitted possession, i think in this state the driver is responsible for the contents of the car. being under the passenger seat doesn't automatically mean the passenger is in possession of it or even had knowledge that it was there.

need more facts.

 

[Powderman]

Well, it will be interesting to find out a bit more.

First, why was the vehicle stopped?
Was the client the driver?
If the client was the driver--and the client was arrested--then the search incident to arrest of the "lunge" area was within guidelines. The driver would be cooked for possession of the firearm. Moreover, if the firearm was loaded and the driver did not have a valid Washington CPL, he could be charged for carrying that firearm illegally.

p35, what are the other charges being levied? And, what are the circumstances of the stop and subsequent arrest? This should be interesting.

 

[p35]

Guys-

These are all interesting questions at the trial court level, but the case is past that level now and the kid's been convicted and is appealing.

The ONLY issue we're looking at right now is whether Heller invalidates the UPF statute where the only disqualification is being under 18.

 

[Henry Bowman]

I am corresponding with the attorney involved. Indeed,

The ONLY issue we're looking at right now is whether Heller invalidates the UPF statute where the only disqualification is being under 18.

The Washington Constitution states:

“The right of the individual to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”

In speaking about the right to bear arms, the Washington Supreme Court recently said,

Without doubt, this provision confers upon our fellow citizens the individual right to keep and bear arms. Although we have noted the right secured in our state constitution may be broader than that provided by the second amendment to the United States Constitution, we have yet to determine the outer limits of this provision. Yet there is no doubt each citizen enjoys equal privilege to the right guaranteed by this provision.

State v. Schelin, 147 Wn.2d 562, 588-89, 55 P.3d 632 (2002).

The statute in question states:

(2)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if . . . the person owns, has in his or her possession, or has in his or her control any firearm:

* * *
(iii) If the person is under eighteen years of age, except as provided in RCW 9.41.042;

Assume the RCW 9.41.042 exceptions do not apply and that he has no other disability other than having breathed for less than 18 full years.

I don't really see anything in Heller that answers the question. Aside from the question of incorporation of the 2A, given that at least the 1st, 4th, and 5th Amendments have been found to apply to minors, do the rights protected by the 2A apply to minors?

 

[Bobarino]

oh, in that case, i think the kid is hosed. just as there has been "reasonable restrictions" placed on many of rights in the Bill of Rights (ie yelling "fire!" in a crowded theatre) and considering that Heller outlined a few restrictions (felons, mentally ill) i'd say that the age requirement will fall under "reasonable restriction" just as his right to vote is limited to age 18+. i don't think the Heller case will exhonorate him. i wish it would frankly, but i wouldn't put a bet on it. just my opinion.

Bobby