State v. Ross: Washington’s Unlawful Possession of a Firearms Statute Is Constitutional

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Philadelphia Law Firm, Kenny, Burns & McGill | New District Court Opinion on Felons and Gun Ownership

In State v. Ross, the WA Court of Appeals held that the Second Amendment does not bar the state from criminalizing the possession of firearms by felons. Consequently, Washington’s Unlawful Possession of a Firearms in the First Degree statute is constitutional.

BACKGROUND FACTS

Mr. Ross was convicted of Unlawful Possession of a Firearms in the First Degree. His conviction was based on a prior 2010 conviction for second degree burglary. Unfortunately for Ross, his burglary conviction is a defined “serious offense” under WA’s Sentencing Reform Act.

Ross appealed. He argued that under the Second Amendment and New York State Rifle & Pistol Ass’n v. Bruen, Washington’s Firearms Statute RCW 9.41.040(1) was unconstitutional as applied.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with a critique of the Second Amendment right to bear arms. The Court recognized, however, that the right secured by the Second Amendment is not unlimited. In District of Columbia v. Heller, the U.S. Supreme Court identified several longstanding prohibitions, including possession by felons:

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” ~WA Court of Appeals quoting District of Columbia v. Heller.

Next, the Court of Appeals analayzed the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen. In Bruen, the Supreme Court considered and struck down New York’s regulatory licensing program requiring applicants to prove that they had “proper cause” to carry a handgun in public.

The WA Court of Appeals emphasized that Bruen was intentionally drafted to be limited in its scope. As a result, Bruen did not overrule Washington’s own time-stested caselaw on the subject matter:

“Indeed, at least 11 times the majority referenced the Second Amendment right of “law-abiding” citizens . . . Of the six justices in the majority, three wrote or joined in concurring opinions clarifying the scope of their decision. We hold that consistent with Heller, McDonald, and Bruen, the Second Amendment does not bar the state from prohibiting the possession of firearms by felons as it has done in RCW 9.41.040(1). RCW 9.41.040(1) is facially constitutional.” ~WA Court of Appeals.

Next the WA Court of Appeals adressed Ross’s argument that because his underlying crime of second degree burglary was nonviolent,  RCW 9.41.040(1) was unconstitutional as applied.

“We disagree for two reasons,” said the Court. First, Ross’s attempt to distinguish violent and nonviolent felons is of his own construct. There are no prior court opinions distinguishing violent felons from nonviolent felons. Second, the legislature has defined second degree burglary as a violent crime:

“The prohibition on possession of firearms under RCW 9.41.040(1)(a) applies to any person previously convicted of “any serious offense.” A “serious offense” is defined by the same statute to include “[a]ny crime of violence.” RCW 9.41.010(42)(a). And a “crime of violence” is defined to include burglary in the second degree . . . Ross offers no support for the proposition that the legislature did not intend to define burglary in the second degree as a serious offense and a crime of violence.” ~WA Court of Appeals

With that, the WA Court of Appeals upheld Mr. Ross’s conviction.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Lustful Disposition” Evidence Held Inadmissible Under ER 404(b)

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Inadmissible Evidence (Broadway, Sam S. Shubert Theatre, 1965) | Playbill

In State v. Bartch, the WA Court of Appeals reversed a defendant’s conviction for Indecent Liberties. The trial court mistakenly admitted evidence or prior advances made by the defendant towards the victim a year before the charged sexual assault under ER 404.

BACKGROUND FACTS

In 2018, the alleged victim S.P. and Mr. Bartch were among a group that socialized together several times during the summer. S.P. and Bartch privately communicated every now and then through Snapchat. On one occasion, S.P. sent Bartch a Snapchat of herself sunbathing in a swimsuit with a message asking if he was still with a mutual friend, with the intent of making plans for the evening.

On June 26, 2018, S.P. attended a gathering at Bartch’s house with common friends. Alcohol was involved. Sexual contact allegedly took place. With the assistance of friends, S.P. departed Bartch’s house and reported the alleged sexual assault to police.

Months later, on May 8, 2019, the State charged Bartch with one count of Indecent Liberties. This required the State to prove that S.P. was “incapable of consent by reason of being mentally incapacitated and physically helpless.” Bartch, on the other hand, argued S.P. consented to sexual contact both through flirtatious behavior leading up to the sexual contact in the bedroom, and by expressly consenting.

At trial, the State offered evidence of two prior instances in which Bartch made sexual advances towards S.P. First, the State put on evidence that Bartch made unwanted sexual advances during a party in 2017. Second, later the same night, when the party was “toning down,” Bartch asked S.P. if she wanted to “sleep with him.” S.P. again declined.

At trial, the judge admitted evidence of these other acts under Washington’s “lustful disposition” case law. The jury returned a guilty verdict. Bartch appealed his conviction on grounds that the trial court unlawfully allowed the lustful disposition evidence at trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said that generally, ER 404(b) prohibits evidence of “other crimes, wrongs, or acts” to prove the character of a person to show the person acted in conformity with that character, that is, propensity.

“But the rule permits evidence of other acts for purposes other than propensity,” said the Court. “Historically, one such purpose was to show “lustful disposition” towards a specific person in sexual assault cases.”

The Court elaborated by saying that Washington decisions have permitted evidence of other acts by the defendant toward the same victim “to demonstrate ‘the lustful inclination of the defendant toward the victim. Apparently, this evidence makes it more probable that the defendant committed the offense charged because it evidences a sexual desire for the particular victim.

Ultimately, the Court of Appeals reasoned that Bartch’s prior advances were dissimilar to the charged conduct and too remote in time. “They are at most only minimally probative that the later conduct that was charged was for the purpose of gratifying sexual desire, and in the best case only cumulatively so,” said the Court.

“The history and nature of the relationship between S.P. and Bartch therefore had a reasonable probability of being of particular significance to the jury. Because the other acts evidence was inadmissible for the purpose for which it was admitted, the State does not show an other, permissible purpose, and there is a reasonable probability the outcome may have been affected, we reverse Bartch’s conviction.” ~WA Court of Appeals

With that, Mr. Bartch’s criminal conviction was reversed.

My opinion? As I’ve said in past reviews of similar cases, it’s difficult to predict what path judges will take on admitting or denying evidence of “lustful disposition.” This term of art has all but been abandoned in recent years. In  State v. Crossguns, the WA Supreme Court disapproved of the prosecution’s use of the term “lustful disposition” at trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Seattle Implements “Police Ruse” Policy

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Lies We Tell Ourselves: How Deception Leads to Self-Deception - Scientific American

In a press release, the City of Seattle announced the implementation of the nation’s first policy governing the use of police patrol ruses.

Mayor Bruce Harrell directed the SPD to develop the new policy. It comes a few years after a Seattle officer’s ruse contributed to the suicide of a hit-and-run driver in 2018. Another controversial ruse was when officers created fake radio traffic to try and get protesters away from the CHAZ/CHOP zone in 2020. Those cases undermined the public’s trust and confidence in police, according to the SPD.

“Effective public safety requires community buy-in, and this new policy is an important step to build understanding with the public, demonstrating that for SPD operations to be successful, they must be paired with a commitment to unbiased, constitutional policing . . .This innovative new policy will lead to better police work thanks to the voices of many, including the media who brought attention to this tactic, community members who called for guidelines to match our values, and Seattle accountability and police leaders who developed a plan to make that vision real.” ~Seattle Mayor Bruce Harrell

WHAT IS THE “RUSE POLICY?”

The Ruse Policy recognizes that while this tactic may be necessary in specific situations to support public safety, the need and conditions for its use should be strongly and clearly defined. The new ruse policy sets substantial guardrails around the use of ruses, limiting the use by patrol officers to these five scenarios:

  • De-escalation,
  • To calm or provide comfort to a person,
  • To promote the safety of any person,
  • Scene management, or
  • To bring potentially violent situations to a peaceful resolution.

Additionally, patrol ruses may not be broadcast over radio, social media or any other mass media format, the new policy states. No patrol ruse may involve officers making or implying promises regarding prosecution or filing decisions, and patrol ruses that shock the conscience will not be used.

The policy defines appropriate uses of ruses for de-escalation and investigation, while also creating clear accountability through requirements for documentation, supervisor approval, and protections for juveniles. The policy prohibits ruses broadcast via mass media or false promises regarding prosecution, as well those that plainly “shock the conscience.”

“The Seattle Police department engaged in an in-depth review on the use of ruses, facilitated by the Office of the Inspector General. This first-in-nation policy balances the legitimate use of deception, especially for de-escalation and the safety of all persons, with supervision, documentation, and clear prohibition of ruses that compromise public trust.” ~Seattle Police Chief Adrian Diaz.

The policy will continue to be evaluated and refined based on the now required documentation and new data. The policy also provides an objective standard by which officers’ conduct can be evaluated, creating a framework to hold them accountable when violations occur.

My opinion? Seattle’s Ruse Policy is indeed a novel step in the right direction. Even better, it should only be applied under limited circumstances.

However, intriguing legal issues arise. Can a criminal charge be dismissed if the defendant reasonably relied on a ruse from a police officer? In other words, but for the ruse, would a crime have been allegedly committed? If so, then a defendant’s reliance on a ruse can be Entrapment.

Under Washington law, Entrapment is a defense to criminal charges if the criminal design originated in the mind of police and the defendant was lured or induced to commit a crime that the defendant had not otherwise intended to commit.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Backlog of WA Rape Kits Eliminated

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Oklahoma awarded grant to address rape kit backlog | KOKH

In a press release, State Attorney General Bob Ferguson announced that the last of more than 10,000 sexual assault kits have been cleared from shelves and sent to labs for testing. This marks a major milestone for the Attorney General’s Sexual Assault Kit Initiative. Washington’s backlog of rape kits has effectively been eliminated.

According to the press release, clearing the backlog and testing the kits has helped solve at least 21 sexual assault cases. The testing has resulted in more than 2,100 “hits” in the national DNA database, known as CODIS. A hit occurs when a DNA sample matches an individual or another case in the database, which generally consists of offenders.

“Effectively ending our sexual assault kit backlog is a historic step toward justice — but our work on behalf of survivors is not done. Through this collective effort, we ensured that survivors’ voices are heard, reformed a broken system, improved testing times, and solved crimes. This success proves that government can solve big problems when we work together. We are committed to working with our partners in law enforcement to prevent any more backlogs so we have the best chance of solving these serious crimes.” ~WA Attorney General Bob Ferguson.

In short, all 10,134 backlogged sexual assault kits found in the office’s inventory have been tested or submitted to a private lab for testing. The Washington State Patrol is still reviewing approximately 1,000 tested kits, many of which will be added to CODIS. That process should be completed by the end of the year.

Ferguson has worked with local law enforcement to collect DNA samples from registered sex offenders, violent offenders and individuals convicted of serious felonies who failed to comply with a legal obligation to provide their DNA. As a result, more than 2,000 new profiles have been added to the national DNA database.

Forensic genetic genealogy grants from Ferguson’s office have helped solve multiple cold cases across the state. The Attorney General’s Office has also provided more than $177,000 in grants to 53 local law enforcement agencies across the state with funding for refrigeration units to store evidence from sexual assault investigations.

Statute of Limitations

Given Washington’s backlog, a potential defense to sex offense charges is that the filing violates the Statute of limitations (SOL).

The statute of limitations is a statute that sets the maximum amount of time after an incident that the plaintiff has to initiate legal proceedings. Simply put, the statute of limitations sets the time limit that the State has to criminally charge the defendant. In 2019, Washington changed its statute of limitation (SOL) laws for sex offenses. Here’s a quick summary of SOL’s for specific offenses.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Deploying Tear Gas In Jails & Prisons

Bellingham Defense Attorney, Jail, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Dozens Killed in Prison Uprisings in Ecuador | Human Rights Watch

In Snaza v. State, the WA Supreme Court narrowly held in a 5-4 decision that a state statute wrongfully granted a public official outside a county sheriff’s office authority over when police can use tear gas to quell a riot.

FACTUAL BACKGROUND

Justice Charles Johnson wrote the majority opinion. He started by saying that following waves of protests across the state and country, calling for racial justice and reform of police practices, the Washington Legislature enacted several statutes in 2021 establishing requirements for tactics and equipment used by peace officers.

RCW 10.116.030(1) provides tear gas may not be used “unless necessary to alleviate a present risk of serious harm posed by a: (a) Riot; (b) barricaded subject; or (c) hostage situation.” Subsection (2) imposes specific prerequisites to using tear gas as authorized under subsection (1). For instance, prior to deploying this tactic, law enforcement must exhaust alternatives to the use of tear gas, obtain authorization from a supervising officer, announce to the subjects the intent to use tear gas, and allow sufficient time and space for the subjects to comply with law enforcement’s directives.

In addition to these limits on the use of tear gas, law enforcement must comply with RCW 10.116.030(3), which restricts the use of tear gas as a tactic to suppress riots. This section of the statute says the following:

“In the case of a riot outside of a correctional, jail, or detention facility, the officer or employee may use tear gas only after: (a) Receiving authorization from the highest elected official of the jurisdiction in which the tear gas is to be used, and (b) meeting the requirements of subsection (2) of this section.” ~RCW 10.116.030(3)

Several sheriffs challenged RCW 10.116.030(3)(a), which limits when a sheriff can use tear gas to quell a riot.

MAJORITY COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that thelegislature may not interfere with the core functions of a county office. Quelling a riot is a core function of the sheriff’s office. By granting an official outside a sheriff’s office authority over a core function of the sheriff, RCW 10.116.030(3)(a) violated article XI, section 5 of the Washington Constitution.

“Consistent with the rule our cases establish, we conclude quelling riots is a core function of the sheriff’s office. We emphasize discretionary use of lawful force in riot suppression is a core function of the sheriff’s office. This conclusion necessarily follows and is consistent with how our cases determine the nature of an office’s authority.”

“As we have stated, the county sheriff has been responsible for quelling riots since before the ratification of our state constitution . . . This power and function has “belonged to the sheriff at the time our constitution was adopted, and from time immemorial.” ~WA Supreme Court

DISSENTING OPINION

Justice Gordon McCloud delivered the dissenting opinion. He said the sheriff’s office has never had unfettered discretion to use any means it chose to suppress riots:

“The historical record shows that the legislature limited sheriffs’ discretionary decisions about how to quell riots from the time of statehood. And, of course, the historical record shows that tear gas was not even available at the time of statehood. It necessarily follows that discretionary use of tear gas to suppress riots is not ‘fundamental’ to or ‘inherent’ in the office of sheriff.” ~Justice Gordon McCloud

Jails and prisons are terrible places. Please review Making Bail and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

No Books for Inmates

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

What Books Are Banned in Prisons? A State-by-State Breakdown | The Marshall Project

Interesting article from the Marshall Project says prisons are preventing inmates from receiving books.

The Marshall Project has documented more than 50,000 records of publications dating back to the 1990s being banned by state prisons that censor materials. These books contain sexual content, references to racial justice or other topics corrections staff deem inappropriate, or threats to security. However, free speech advocates and groups that promote reading in prison say the increased crackdowns that limit who can mail books inside amount to harmful, de facto book bans while doing little to help prevent overdose deaths behind bars.

THE ARGUMENT: BOOKS SMUGGLE CONTRABAND INTO PRISONS.

Karen Pojmann, a spokesperson for Missouri Department of Corrections, said the department implemented the rule after mailroom staff found paper soaked with drugs such as methamphetamine. “We are trying to save lives,” she said.

Pojmann was unable to provide data on the total number of overdose deaths in Missouri prisons in recent years. But deaths from drug overdoses have been plaguing prisons and jails. According to data from the U.S. Department of Justice, 253 people died in prisons nationwide from drug or alcohol intoxication in 2019, a significant increase from 2001 when that number was 35 people.

NUMEROUS STATE PRISONS ARE NOW BANNING BOOKS.

Iowa, Missouri and Texas have cracked down on who can send books, citing concerns over narcotics-laced paper.

In September, Missouri banned individuals and organizations from sending books to people in prison, or even purchasing them on someone’s behalf. Instead, incarcerated people must purchase books themselves.

Other states have made similar changes. In Iowa prisons, books can only come from two approved vendors, a policy adopted in 2021 according to local news reports. But those vendors have limited selections. For example, Ralph Ellison’s classic book “Invisible Man,” which explores issues of racism and Black identity, is not available from either vendor, despite being a key piece of the U.S. literary canon.

In addition to the tighter rules about who can send books inside, books-to-prisoner programs said many states are being stricter in their screening process. The programs have had packages rejected because the wrapping had too much tape. Facilities in some states also refused packages because they were wrapped in brown butcher paper instead of white.

FREE-SPEECH ADVOCATES PROTEST THE BANNING OF BOOKS.

Moira Marquis, a senior manager at PEN America, an organization that advocates literary and journalistic freedom, has been researching access to books in prison. She said these policies that bar books based on their origin or how they are mailed rather than their content are growing and threaten incarcerated people’s right to access books and information. Based on calls to prison mailrooms in 16 states, PEN America found more than 80% of those state and federal correctional institutions now dictate that literature come from approved vendors, according to a report to be released this October.

“Absolutely, these policies are censorship . . . This is depriving people from being able to acquire information.” ~Moira Marquis, Senior Manager at PEN America.

ARE BOOKS THE CULPRIT FOR DRUG OVERDOSES IN PRISONS?

There is evidence from other states that guards are a source of drugs and other illegal contraband. Since 2018, there have been at least 360 cases of staff smuggling contraband, including drugs, into Georgia state prisons, according to an investigation from The Atlanta Journal-Constitution. And a study from The Urban Institute that looked at a handful of correctional facilities across the country found staff were a common source of contraband cellphones and cigarettes in Florida.

Prison is a terrible place.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The Right to Privately Speak With Defense Counsel

Assault, Bellingham, Coronavirus, Drive-By Shooting, Eluding, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Court hearings via video conference have pros and cons, area lawyers say - masslive.com

In State v. Bragg, the WA Court of Appeals held that the trial court violated Mr. Bragg’s
right to confer with his attorney by requiring Bragg to participate in all nontrial
hearings via Webex while his counsel appeared in the courtroom.

BACKGROUND FACTS

Mr. Bragg allegedly fired a gun at sheriff’s deputies during a high-speed car chase. He was apprehended. The State charged him with three counts of Assault in the First Degree, Drive-By Shooting, Attempting to Elude, and Fiream Offenses. The trial court set Bragg’s bail at $750,000, which he was unable to pay.

Before trial, the court granted multiple continuances requested by Bragg and the State. For all pretrial proceedings, Bragg appeared on video via Webex from jail, while his counsel and the State appeared in person before the trial judge. Multiple times, Bragg expressed frustration with the pretrial proceedings and distrust of his counsel. At a hearing on December 29, 2021, defense counsel tried to withdraw due to allegedly irreconcilable conflicts. The court denied counsel’s motion to withdraw.

The four-day jury trial began January 3, 2021. Bragg appeared in person for trial. After the State rested, Bragg did not call any witnesses. The jury then found Bragg guilty of numerous counts. The court sentenced Bragg to 648 months of prison. Again, Bragg appeared at sentencing via Webex.

On appeal, Bragg argues that at least 8 court hearings were critical stage proceedings. Consequently, the court violated his Sixth Amendment rights because he was unable to privately consult with his attorney during those hearings.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that a criminal defendant is entitled to the assistance of counsel at “critical stages” in the litigation. A “critical stage” is one “‘in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected.

Furthermore, the constitutional right to the assistance of counsel carries with it a reasonable time for consultation and preparation. This includes the opportunity for a private and continual discussions between the defendant and his attorney during the trial. The ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful.

“Like the right to counsel in general, whether the court violated the defendant’s constitutional right to privately confer with his attorney is a very facts-specific inquiry.” ~WA Court of Appeals.

The Court of Appeals also pointed out that in February 2020, our governor declared a state of emergency due to the COVID-19 Pandemic. It discussed how the WA Supreme Court authorized criminal defendants to appear via video.

Nevertheless, the Court of appeals reminded all parties that the Supreme Court’s pivot to video court hearings was meant to be limited in its scope:

“However, the Supreme Court further made clear that for all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.” ~WA Court of Appeals

In rendering its decision, the Court of Appeals reasoned the Supreme Court made it clear that for all hearings that involve a critical stage of the proceedings. Also, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

“Here, by way of summary, the trial court violated Bragg’s right to counsel by not providing guidance to Bragg and his counsel about how to confer privately during at least four nontrial critical stage proceedings and by placing an unreasonable expectation on Bragg to assert his rights. And the State fails to meet its burden to prove beyond a reasonable doubt that such errors were harmless. Thus, without making any comment on the weight of the evidence or the conduct of the trial, we are compelled to reverse and remand this matter for further proceedings.” ~WA Court of Appeals

With that, the Court of Appeals revesed Mr. Bragg’s convictions.

My opinion? The use of technology in the courtroom has resulted in numerous benefits to the litigants and the public. These technological benefits should only improve as our courts, judges and litigants become more familiar with the features of the existing technology.

Clearly, however, the over-use of technology may undermine a defendant’s right to legal representation.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecution Is Not Required To Prove Nudity When Seeking Indecent Exposure Charges

Bellingham Defense Attorney, Indecent Exposure, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

What Is Indecent Exposure? | Britton & Time Solicitors

In State v. Thompson, the WA Court of Appeals held that Washington’s Indecent Exposure Statute does not require the prosecution to prove the defendant was actual nude. Furthermore, the statute is not unconstitutionally vague.

BACKGROUND FACTS

Three 12-year-old girls playing in an apartment complex playground saw Mr. Thompson “touching his privates while looking at them” from his own apartment. One of the girls vividly described Thompson’s erect—but clothed—penis, and all three described him masturbating or touching himself over his clothing.

The State charged Thompson with felony indecent exposure under RCW 9A.88.010. Thompson twice moved to dismiss the charges. He argued that nudity is a required element of the crime. The trial court eventually granted the motion. It found that the law was unconstitutionally vague as applied to Thompson, who would not have known that his actions were prohibited.

The State appealled the dismissal of Thompson’s charges.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals addressed whether the Indecent Exposure Statute was constitutionally vague.

“A statute can be challenged as being facially vague or vague as applied,” said the Court. Here, the Indecent Exposure statute in question states the following:

“A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.” ~RCW 9A.88.010(1)

The court reasoned that Thompson’s deconstruction of the phrase “open and obscene exposure of his or her person” fails for two reasons. First, the terms “nudity” or “nude” or “clothed” or “unclothed” do not appear anywhere in the statute. “If the legislature wanted to criminalize nudity, as Thompson claims, it certainly knew how,” said the Court.

Second, our courts consistently have defined the phrase “obscene exposure,” not by breaking down the definition into its constituent parts as Thompson does, but by interpreting the phrase as a whole. “In short, our courts have defined the phrase “obscene exposure,” not as nudity, but as a kind of wrongful exhibition,” said the Court.

The Court further reasoned that as a matter of law, Indecent Exposure requires, not only exhibition of the genitals, but obscenity, i.e., lascivious behavior judged as improper by society.

“It is the exhibition and the behavior which are the gravamen of the crime. There would be no basis to prosecute the athletic, artistic, humorous, or celebratory display of the body, which in most contexts “common decency” requires a person not to display, unless it would also be deemed lascivious (i.e., filled with sexual desire) and improper by the common person.” ~WA Court of Appeals

The Court of Appeals concluded that under Thompson’s logic, a barely veiled erect penis used in the most sexualized and unwelcome manner imaginable would not be considered obscene because the genitalia is at least not naked. “Our interpretation of the statute does not allow such absurd results,” said the Court.

With that, the WA Court of Appeals concluded that the trial court erred in dismissing Thompson’s charge at issue as unconstitutionally vague. It reversed and vacated Thompson’s Dismissal Order and remanded the matter for further proceedings.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

America is Experiencing a Police Officer Shortage

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Why is There a Shortage of Police Officers? | National Police Support Fund

Informative article from the Associated Press reports that America is in a police officer shortage. Many in law enforcement blame the coronavirus pandemic and criticism of police that boiled over with the murder of George Floyd by a police officer.

From Minnesota to Maine, Ohio to Texas, small towns unable to fill jobs are eliminating their police departments. They’re turning over police work to their county sheriff, a neighboring town or state police.

At least 521 U.S. towns and cities with populations of 1,000 to 200,000 disbanded policing between 1972 and 2017, according to a peer-reviewed 2022 paper by Rice University Professor of Economics Richard T. Boylan. Interestingly, crime rates were unchanged in towns that dropped their departments, the Rice University study found.

At the heart of the problem is the exodus from law enforcement. Officer resignations were up 47% last year compared to 2019 — the year before the pandemic and Floyd’s killing — and retirements are up 19%. That’s all according to a survey of nearly 200 police agencies by the Police Executive Research Forum, a Washington, DC.-based think tank.

Though the survey represents only agencies affiliated with PERF, a fraction of the more than 18,000 law enforcement agencies nationwide and is not representative of all departments, it’s one of the few efforts to examine police hiring and retention and compare it with the time before Floyd’s killing.

Compounding the exodus of veteran officers, young people are increasingly unwilling to go through the months of training necessary to become a police officer, said Chuck Wexler, executive director of the Police Executive Research Forum.

“Fewer people are applying to be police officers, and more officers are retiring or resigning at a tremendous rate . . . There’s a shortage of police officers across the country.” ~Chuck Wexler, executive director of the Police Executive Research Forum.

Agencies of all sizes are struggling to fill open positions. But the problem is especially dire in smaller communities that can’t match the pay and incentives offered by bigger places.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Are Rimfire Rifles Bannable Assault Weapons?

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

 

Rimfire Rifles | Rossi USA

In AGO 2023 No. 4 (October 2, 2023), the WA Attorney General (AGO) discussed whether Washington’s new statute resricting the manufacture, import, distribution, and sale of assault weapons applies to rim fire semiautomatic firearms.

In short, the answer is “It depends.” Rimfire rifles are not excluded from every definition of “assault weapon.”  A rimfire rifle that is semiautomatic is an “assault weapon” if it is either (1) a specific firearm listed in RCW 9.41.010(2)(a)(i), (2) has an overall length of less than 30 inches per RCW 9.41.010(2)(a)(ii), or (3) is a conversion kit, part, or combination of parts, from which an assault weapon can be assembled.

BACKGROUND

In 2023, the legislature enacted SHB 1240, which amends RCW 9.41 to restrict the manufacture, import, distribution, sale, and offer of sale of “any assault weapon.”  Firearms, including rifles, are commonly designed for rim fire or center fire ammunition. A bullet with a rim fire cartridge is one for which “its primer, the explosive, is around the rim of the cartridge.” State v. Hammock, 154 Wn. App. 630, 633, 226 P.3d 154 (2010).

WHAT IS A “RIM FIRE RIFLE?”

A rimfire rifle is designed to use rim fire cartridges. In contrast, the primer of a center fire cartridge is at the center of the base. Consequently, center fire rifles are designed specifically to use center fire cartridges.

centerfire and rimfire cartridges

ANALYSIS & CONCLUSIONS

The AGO looked to the statutory definition of “assault weapon” in RCW 9.41.010(2).  That definition is, in relevant part, as follows:

  1. Any of the following specific firearms [listed within this subsection] regardless of which company produced and manufactured the firearm [; or]
  2. A semiautomatic rifle that has an overall length of less than 30 inches;
  3. A conversion kit, part, or combination of parts, from which an assault weapon can be assembled or . . . converted . . . if those parts are in the possession or under the control of the same person; or
  4. A semiautomatic, center fire rifle that has the capacity to accept a detachable magazine and has one or more [specifically listed features]; [or]
  5.  A semiautomatic, center fire rifle that has a fixed magazine with the capacity to accept more than 10 rounds;

In it’s opinion, the AGO said a rimfire firearm is one designed to use a particular type of cartridge. It explained that some rim fire semiautomatic rifles fall under the definition of “assault weapons.” That section defines “assault weapon” to include any of the 62 specific firearms listed in subsection (2)(a)(i), “some of which we understand come in rim fire models.”

“Thus, if any of the specific firearms listed in subsection (2)(a)(i) is designed for rimfire ammunition, or if a rim fire rifle has an overall length of less than 30 inches, it is an assault weapon and subject to the restriction in SHB 1240, section 3 (codified as RCW 9.41.390). Other categories of assault weapons defined in the bill, namely in subsections (4) and (5), specifically cover only “center fire” models, so those categories would not include rim fire models.” ~WA Attorney General

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.