Part Two of the Spencer decision continues here:
[4, 5] We do not find these arguments persuasive. First, the statute does not prevent a person from carrying weapons in self-defense. Weapons may be carried in response to "presently threatened unlawful force by another". RCW 9.41.270(3)(c). If there is no present threat, weapons must be carried in a manner that does not warrant alarm in others. The statute does not prohibit the ownership of weapons, and it limits the possession of certain weapons only when they are carried or displayed in a manner and under circumstances that warrant alarm. Thus, for example, the statute does not prohibit an individual from legally carrying a concealed weapon such as the .45-caliber pistol Spencer carried under his jacket. We conclude that the statute's restriction on an individual's right to bear arms in self-defense is minimal. The statute is narrowly drawn and demonstrates the Legislature's awareness of and concern with preserving the rights of the individual.
In addition, the statute does not have an undue chilling effect on the right to bear arms. As the Superior Court found, the statute only prohibits the carrying or displaying of weapons when objective circumstances would warrant alarm in a reasonable person. «4»
«4» These circumstances may include, as in the present case, the fact that the weapon is being carried in a residential neighborhood, the time of day, the urban environment, the manner in which the weapon is carried, the size and type of weapon, and the fact that the weapon has a clip visibly attached.
Thus, the restriction applies only in a limited number of situations. Furthermore, the prohibition is not so vague that it would prevent persons of common intelligence from ever carrying a weapon on the street. In the vast majority of situations, a person of common intelligence would be able to ascertain when the carrying of a particular weapon would reasonably warrant alarm in others. Although some areas of uncertainty may exist, these potential "gray areas" of the statute are small and do not render it unconstitutional. Cf. Maciolek, at 265 (possible areas of disagreement do not render statute unconstitutionally vague). «5»
«5» In this regard, we note that the present case, in which the Defendant was carrying a visibly loaded AK-47 rifle in an assaultive manner at night in a residential area, does not fall anywhere near a potential "gray area" in the statute.
Finally, contrary to Spencer's argument, the statute does promote public welfare and safety. People have a strong interest in being able to use public areas without fearing for their lives. The statute protects this interest by requiring people who carry weapons to do so in a manner that will not warrant alarm. Therefore, we conclude that the statute is reasonably necessary and substantially promotes the public welfare.
To summarize, we have determined that the statute minimally restricts the rights of the individual, it is narrowly drawn, and it promotes a substantial public interest. This public interest in security, and in having a sense of security, outweighs the individual's interest in carrying weapons under circumstances that warrant alarm in others. For these reasons, we hold that the restriction in RCW 9.41.270 on the right to bear arms is not unconstitutional.
We next determine whether RCW 9.41.270 is unconstitutionally vague as applied to Spencer's conduct.
[6] The text of former RCW 9.41. 270 is set forth, in part, supra. A statute is unconstitutionally vague and violates due process if it (1) fails to provide adequate notice to citizens of which conduct is prohibited or (2) fails to contain ascertainable standards to prevent arbitrary enforcement. State v. Maciolek, 101 Wn.2d 259, 264, 676 P.2d 996 (1984) (quoting State v. Foster, 91 Wn.2d 466, 474, 589 P.2d 789 (1979)). A statute that is not vague on its face may nonetheless be vague as applied to conduct that falls outside the statute's "constitutional core". Maciolek, at 266 (citing Bellevue v. Miller, 85 Wn.2d 539, 541, 536 P.2d 603 (1975)).
In Maciolek, three petitioners challenged RCW 9.41.270, arguing that it was unconstitutionally vague. In one case, when the petitioner's doctor refused to give him a prescription for Percodan, the petitioner became angry and pulled back his jacket, revealing a handgun. The doctor was frightened and immediately wrote the prescription. In another case, the petitioner, a juvenile, fired his BB gun at two children and took one of their bicycles. In the third case, the petitioner, a juvenile, got into an argument with a woman and chased her with a knife. Maciolek, at 261-62. The petitioners argued that the statute was unconstitutionally vague because it contained an unclear definition of weapons and an unclear description of the conduct prohibited. Maciolek, at 264.
The Supreme Court rejected these arguments and held that the statute was not unconstitutionally vague. Maciolek, at 269. The court reasoned that the average person would know that the statute prohibited using a weapon to threaten another. Maciolek, at 265. In addition, the court concluded that the statute was directed at identifiable criminal conduct, had a reasonably definite focus, and did not encourage arbitrary enforcement. Maciolek, at 268-69. Furthermore, the court held, the statute was not vague as applied because the petitioners' conduct fell within the statute's constitutional core. Maciolek, at 266.
Spencer argues that this case is distinguishable from Maciolek because, unlike the petitioners in that case, he did not intend to threaten anyone and was convicted under a different portion of the statute. Spencer is correct that the Maciolek holding does not apply to this case. However, the court in Maciolek did address the "warrants alarm" portion of the statute in a footnote and essentially rejected Spencer's claim. See Maciolek, at 268 n.3.
In the footnote, the Maciolek court stated that because the term "warrants alarm" was qualified by specific weapons, it was sufficiently definite to prevent ad hoc determinations of criminality. The court contrasted the present statute with the ordinance in Bellevue v. Miller, supra, which prohibited wandering or prowling that warrants alarm for the safety of persons or property. The court reasoned that the "warrants alarm" portion of the Miller statute was qualified only by the words "wandering or prowling", both of which are inherently vague. Thus, the court concluded, because the specification of weapons in the present statute gives it a narrow scope, it is distinguishable from the statute in Miller and is not unconstitutionally vague. «6»
«6» Furthermore, the court reasoned, even if the phrase "warrants alarm" in the present statute could be considered vague, it can be interpreted narrowly for purposes of upholding the statute. The court then stated:
If a weapon is displayed in a manner, under circumstances and at a time and place so that it poses a threat to another person, such a display would warrant alarm for the safety of another. Thus, narrowly construing the phrase to apply to only conduct that poses a threat to others gives the phrase a narrow and definite focus and saves it from vagueness.
Maciolek, at 268 n.3.
[7] Spencer urges this court not to follow the reasoning in Maciolek because it is only dicta. He also urges this court to reject the Superior Court's view that RCW 9.41.270 sets a "reasonable person" standard for determining whether the statute has been violated. However, the general rule is that if a term or phrase in a statute can be made definite by a reasonable construction, the court must narrowly construe it and uphold the statute. Maciolek, at 268 n.3 (citing State v. Martinez, 85 Wn.2d 671, 538 P.2d 521 (1975), overruled on other grounds by State v. Smith, 93 Wn.2d 329, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980)).
[8] We agree with the Supreme Court that the weapons limitation gives the statute a sufficiently narrow scope. In addition, we adopt the Superior Court's conclusion that a reasonable person standard is incorporated into the phrase "warrants alarm". When viewed with these two limitations in mind, it is clear that the statute is sufficiently definite to (1) provide defendants with adequate notice of prohibited conduct and (2) provide adequate enforcement standards. This construction is reasonable and in accord with the plain language of the statute. «7»
«7» As the State points out, the Legislature's use of the word "warrants" in the statute implies that there must be a sufficient objective basis for the alarm, i.e., circumstances must be such that a reasonable person would be alarmed.
[9] Having determined that the "warrants alarm" portion of the statute is not vague, the only remaining question is whether Spencer's conduct falls within the statute's constitutional core. Clearly, it does. Any reasonable person would feel alarmed upon seeing, on a residential street at night, a man carrying a visibly loaded AK-47 assault rifle in an assaultive manner. This alarm would be intensified if the man were walking briskly with his head down and avoiding eye contact with passers-by, as Spencer was doing. Furthermore, our conclusion that Spencer's conduct warranted alarm is supported by the kinds of people who were alarmed in this case, including several firefighters, a police officer, and a passing motorist.
We also conclude that a person of common intelligence would realize that carrying an assault rifle under such circumstances and in such a manner would warrant alarm in others. Whether different circumstances would warrant alarm is a question that must be left open; here, however, Spencer's conduct falls squarely within the core of the statute. Therefore, we reject Spencer's argument that the statute is unconstitutionally vague.
[10] Finally, we decide whether RCW 9.41.270 is overbroad. In the free speech context, a statute is overbroad if its prohibitions reach constitutionally protected free speech activities. Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989). If a statute regulates behavior, as opposed to pure speech, it will not be overturned unless the overbreadth is "'both real and substantial in relation to the ordinance's plainly legitimate sweep.'" Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333, 7 A.L.R.5th 1100 (1990) (quoting Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366, 78 A.L.R.4th 1115 (1988)), cert. denied, 500 U.S. 908 (1991).
[11] Spencer argues that RCW 9.41.270 improperly narrows an individual's right to bear arms in self-defense. However, as discussed, supra, we have concluded that the statute's restriction on self-defense is minimal because (1) weapons may be carried in response to "presently threatened unlawful force by another" and (2) if there is no present threat, weapons may be carried in a manner that does not warrant alarm in others. We have further determined that the statute is narrowly drawn to promote a substantial public interest and that the statute's language demonstrates the Legislature's concern with preserving the individual's right to bear arms in self-defense. For these reasons, we reject Spencer's claim that the statute is unconstitutionally overbroad.
The judgment and sentence are affirmed.
PEKELIS, A.C.J., and SCHOLFIELD, J., concur.
