Category Archives: Firearm

Washington State’s High-Capacity Magazine Ban Will Remain In Effect For Now

Ban on high-capacity gun magazines very popular with Washingtonians, NPI poll finds - NPI's Cascadia Advocate

Visualization of NPI’s poll finding on Senate Bill 5078

Last week, a state Supreme Court commissioner ordered that Washington state’s high-capacity magazine ban will remain in effect. This decision comes while a legal challenge against the new law remains pending in the courts.

Washington’s law banning high-capacity magazines has been the subject of several legal actions in recent weeks.

PROCEDURAL HISTORY

The high-capacity magazine ban was first overturned by a Cowlitz County Judge Gary Bashor. Earlier this month, he ruled the state’s ban on high-capacity magazines unconstitutional in a lawsuit between Washington State and Gators Customs Guns, a firearms dealer in Kelso.

Judge Bashor’s ruling imposed an injunction on the law for a short time. This meant the ban was effectively overturned in the state of Washington. Immediately after Judge Bashor’s ruling, firearms retailers around the state resumed the sale of high-capacity magazines.

Within 90 minutes, Supreme Court Commissioner Michael E. Johnston granted the Washington State Attorney General’s Office a temporary stay on that injunction. This ruling effectively put the high-capacity magazine ban back into effect. So far, the decision kept the stay in place. It will remain so while the legal challenges against the high-capacity magazine ban are being decided.

Commissioner Johnston ruled that those in opposition of the law “failed to persuasively show” that the ban should be overturned while the ultimate legality of the law is decided. The commissioner also considered the potential harms that could come from lifting the stay and allowing the magazines to be sold in the meantime.

WASHINGTON’S BAN ON HIGH-CAPACITY MAGAZINES

Washington’s ban on high-capacity magazines first went into effect on July 1, 2022. The ban prohibits the sale of gun magazines with a capacity of more than 10 rounds, along with the manufacturing, distribution or import of high-capacity magazines in Washington state.

The bill does not criminalize the possession of high-capacity magazines but instead focuses on the suppliers. Violating the law could result in a gross misdemeanor.

In September of 2023, the Washington AG’s office filed a lawsuit against Gator’s Custom Guns for continuing to sell high-capacity magazines. In response, the gun store owner challenged the law in court.

Other lawsuits have been filed regarding this legislation. In December 2022, Ferguson also filed a lawsuit against a gun store in Federal Way for selling high-capacity magazines after the ban went into effect months before. As a result, the store was ordered to pay $3 million for the illegal sale.

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

9th Circuit Federal Court: Gun Prohibitions on Defendants Are “Historical Tradition of Firearms Regulation.”

13 Tips Whenever Cops Want to See Your Guns! - YouTube

In United States v. Garcia, the 9th Circuit Court of Appeals held that pretrial release conditions forbidding a defendant from possessing firearms are consistent with the nation’s historical tradition of firearms regulation.

BACKGROUND FACTS

Mr. Fencl was arrested after police officers found more than 110 guns in his house, including 10 unregistered and untraceable “ghost guns,” 4 silencers, and 3 short-barreled rifles. Officers also uncovered thousands of rounds of ammunition, including armor-piercing and incendiary rounds and a tear-gas grenade.

In a different case, Mr. Perez-Garcia was arrested following a customs inspection at the United States-Mexico border. He was the passenger in a car in which officers found approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl.

Both men were charged with multiple felony offenses. Consistent with the Bail Reform Act of 1984, two federal magistrate judges released Fencl and Perez-Garcia pending their trials. However, both were subjected them to a condition of pretrial release that temporarily barred them from possessing firearms pending trial. The magistrate judges concluded that the firearm condition was the least restrictive way to assure the safety of the community and the defendants’ appearances in court.

On appeal, Fencl and Perez-Garcia contend that the pretrial firearm condition violated their Second Amendment rights. They believe they were unlawfully  prohibited from possessing guns while they are released pending trial.

9TH CIRCUIT’S REASONING AND CONCLUSIONS

In short, the 9th Circuit upheld the appellants’ temporary disarmament as consistent with our nation’s historical tradition of firearm regulation.

The 9th Circuit reasoned that Congress passed the Bail Reform Act of 1984 to respond to the alarming problem of crimes committed by persons on release. The Act authorizes federal courts to release defendants awaiting trial subject to specific conditions that protect the community from the risk of crimes they might commit while on bail. Courts have discretion to choose which conditions will best keep the community safe. Furthermore, some conditions that are necessary to keep the community safe nevertheless burden constitutional rights.

“Bail Reform Act’s firearm condition on Appelants is justified by our nation’s history of disarming criminal defendants facing serious charges pending trial. Based on our historical review, we agree that our society has traditionally subjected criminal defendants to temporary restrictions on their liberty—including restrictions that affect their ability to keep and bear arms—to protect public safety and to ensure defendants’ attendance at trial. As we explain below, the combination of separate but related founding era practices supports this conclusion: (1) most serious crimes were eligible for capital charges; (2) the government had the power to detain, and usually did detain, defendants indicted on capital charges; and (3) once detained, criminal defendants were completely disarmed. The Bail Reform Act’s firearm condition as applied to Fencl and Perez-Garcia fits within this historical tradition of firearm regulation.” ~9th Circuit Court of Appeals

Next, the 9th Circuit explained that during the Founding Era, most serious criminal acts and felonies constituted capital offenses. As a result, defendants indicted on capital offenses were typically detained without bail, effectively disarming them.

With that, the 9th Circuit concluded that the Bail Reform Act’s pretrial release firearm condition as applied to Appellants was relevantly similar to the founding era tradition of disarming criminal defendants facing serious crimes.

My opinion? Often in my criminal practice I see lots in incidents involving guns. Clients ask  whether police can seize their firearms if a crime is pending. And what about situations where there was an incident, but no gun was involved? The short answer is yes, police can seize firearms and other weapons under these circumstances. This often happens in allegations involving Domestic Violence and felonies. However, there needs to be an order issued from a judge.

Please contact my office if you, a friend or family member face crimes prohibiting the possession of firearms. Hiring an effective and competent defense attorney is the first and best step toward justice.

Citing “Aloha Spirit,” Hawaii Bans Open Carry of Firearms Without a Permit

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According to The Guardian, the Hawaii’i Supreme Court, citing the state’s “Spirit of Aloha”, has ruled that a person can be prosecuted for carrying a gun in public without a permit. This decision comes in an apparent rebuke to the US Supreme Court’s efforts to expand gun rights.

In State of Hawaii v Christopher Wilson, state supreme court of Hawaii reviewed a 2017 case against Christopher Wilson, who had an unregistered, loaded pistol in his front waistband when police were called after a Maui landowner reported seeing a group of men on his property at night. The court denied the man’s request to dismiss weapons possession charges on grounds that they violated a right to bear arms enshrined in the US constitution in 1791.

“The spirit of aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities . . . The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.” ~Justice Todd Eddins, Hawaii Supreme Court

WHAT IS THE “SPIRIT OF ALOHA?”

Under 1986’s Hawaiian Spirit Law, the state mandates that state officials and judges treat the public with “aloha spirit.” In short, this ethos is described as the coordination of the heart and mind to foster connectivity and peace that calls for contemplation and presence of five life-force traits: “akahai” (kindness, expressed with tenderness); “lōkahi” (unity, expressed with harmony); “oluʻolu” (agreeableness, expressed with pleasantness); “haʻahaʻa” (humility, expressed with modesty); and “ahonui’” (patience, expressed with perseverance).

The Wilson case has been winding its way through the court system, with the plaintiff claiming that he had legally purchased the weapon in Florida in 2013. But Wilson had not registered the gun in Hawaii, which has some of the nation’s strictest gun laws, and had not obtained or applied for a permit. The case made its way to the state’s supreme court after the US supreme court further relaxed restrictions on gun ownership via the New York State Rifle & Pistol Association v Bruen case in 2022.

The ruling does not throw out the concept of the right to bear firearms.  Rather it establishes that states may retain the authority to require people to obtain a permit for their firearm before they may carry it in public.

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.

Firearms Bill Requiring 10-day Waiting Period & Safety Training In Effect January 1st, 2024

Firearms Safety Course | West Boylston, MA

Effective January 1, 2024, HB 1143 shall go into effect. The legislation imposes additional requirements for the sale and transfer of firearms, including the following provisions:

  • Fingerprinting and background checks are required for all firearm sales and transfers, with some limited exceptions (RCW 9.41.113). Background checks are to be performed through the Washington State Patrol Firearms Background Check Program, a centralized stated system, rather than through local law enforcement agencies.
  • A 10-day waiting period is required between the purchase and delivery of the firearm to the purchaser.
  • The purchaser must provide proof of having completed a recognized firearm safety training program within the last five years.

Proponents of HB 1143 argue the law rightfully requires people to wait the prescribed “cooling off” period even if they’ve passed a more immediate background check. The intent of the legislation is aimed in part at deterring people from rushing to harm themselves or others with newly purchased weapons during periods of sudden distress or anger.

Its requirements are similar to those for a concealed weapons permit. Also, fourteen states have similar requirements and have found that they have reduced fatalities by 14%. The requirements could also interrupt suicide attempts, which are often impulsive decisions. Suicides constitute 75% of gun deaths in Washington.

Opponents say the legislation denies law-abiding citizens their Second Amendment right to acquire firearms unless they present proof of completion of official, sanctioned firearms training within the past five years, which they must complete at their own expense. Also, the 10-day waiting period is arbitrary on prospective gun owners taking possession of their firearms. They say the delay is longer or indefinite if the State fails to complete background check during that time. Finally, the Department of Licensing will also maintain a database (registry) of gun owners and their personal data, despite the agency having previously suffered a data breach affecting 650,000 citizens just last year.

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.

Gunshot Location Technology: Effective or Not?

How ShotSpotter CEO says technology can 'change the risk calculation' for  shooters - mlive.com

In an interesting story, the Seattle City Council has greenlit funding for a controversial gunshot locator system as part of a larger crime prevention pilot project.

WHAT IS GUNSHOT DETECTION TECHNOLOGY?

Gunshot Detection Technology (GDT) uses sophisticated acoustic sensors to detect, locate and alert law enforcement agencies and security personnel about local illegal gunfire incidents in real-time. The digital alerts include a precise location on a map. It corresponds data such as the address, number of rounds fired, type of gunfire, etc. delivered to any browser-enabled smartphone or mobile laptop device as well as police vehicle MDC or desktop.

GDT is touted to protect officers by providing them with increased tactical awareness. It also enables law enforcement agencies to better connect with their communities and bolsters their mission to protect and serve.

With GDT, officers can more quickly arrive at the scene of a crime with an increased level of safety. They know exactly where the gunfire took place. In many cases, an officer can arrive with the shooter still at the crime scene. If the criminal has fled, shell casings and/or other evidence can be recovered and used for investigative and potential prosecution purposes and key witnesses can be interviewed at the crime scene.

Below are just some of the reports showing how ShotSpotter technology is being rejected by cities and police departments. It can can hurt police response times, result in more racial bias, and violate people’s civil liberties.

POLICE CHIEFS CRITICAL OF SHOTSPOTTER, CITIES PULLING OUT OF CONTRACTS

  • San Antonio’s chief of police led the charge to end the city’s ShotSpotter program. He said, “We made a better-than-good-faith effort trying to make it work.” Instead of renewing with ShotSpotter, he said “We’re going to use that money to provide more community engagement, which ShotSpotter can’t provide.”
  • When Fall River, Massachusetts ended its contract with ShotSpotter, their chief of police said, “It’s a costly system that isn’t working to the effectiveness that we need it to work in order to justify the cost.” 
  • Portland, Oregon decided not to move forward with ShotSpotter in July after their mayor approved a pilot program in 2022. The mayor said he was interested in pursuing better strategies.
  • Atlanta decided not to move forward with the technology after two separate pilot programs led to poor results.
  • Chicago’s mayor promised to get rid of ShotSpotter in the city during his campaign. Their contract with the company is up in February.
  • New Orleans; Dayton, OH; Charlotte, NC; and Trenton, NJ also ended their ShotSpotter contracts.

INEFFECTIVE AND HURTS POLICE RESPONSE TIMES

  • study found that CCTV paired with ShotSpotter-type technology, as proposed in this budget, “did not significantly affect the number of confirmed shootings, but it did increase the workload of police attending incidents for which no evidence of a shooting was found.”
  • study published last year of 68 large metropolitan counties in the United States found “ShotSpotter technology has no significant impact on firearm-related homicides or arrest outcomes.”
  • An article by a crime analyst working for the St. Louis Police Department found ShotSpotter-type technology “simply seem to replace traditional calls for service and do so less efficiently and at a greater monetary cost to departments.”
  • report by the Chicago inspector general found that around 90 percent of ShotSpotter alerts are false positives, resulting in police being dispatched 40,000 times when no gun-related violence had taken place.
  • The technology was found to be ineffective in a report by the City of Atlanta, costing $56,000 per gun recovered – money that would have been more effective in other programs.

CIVIL LIBERTY & EQUITY CONCERNS

  • The ACLU-WA has asked the Council to reject funding ShotSpotter, “given that investing in gunshot detection and CCTV technologies will not prevent crime and violence and will adversely impact communities through increased police violence and heightened privacy risks.”
  • Privacy advocates recently asked the Department of Justice to investigate gunshot detection companies because they lead to over policing of communities of color and may be violating the Civil Rights Act.
  • Faulty evidence from ShotSpotter has been used to wrongfully imprison people like Michael Williams. He was held in Chicago for more than a year before the charges were dismissed and prosecutors admitted they had insufficient evidence, according to an AP report.

My opinion? Only time will tell whether GDT is effective and/or equitable.

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.

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

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.

The Right to Privately Speak With Defense Counsel

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.

Are Rimfire Rifles Bannable Assault Weapons?

 

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.

WA Attorney General Advises Pawn Shops on Handling Assault Rifles

How does a person buy a gun from a shop? | WFXL

Much confusion has arisen in the wake of WA State’s recent ban on assault rifles. Some thorny legal issues surrounding the changing role of pawn shops and their handling of assault rifles are especially interesting. For instance, if a pawnbroker receives an assault weapon, does the law permit the pawnbroker to return the firearm to the owner on repayment of the loan? And if the owner of a pawned assault weapon defaults on the loan, does the law allow the pawnbroker to sell the firearm?

In AGO 2023 No. 5 (October 5, 2023), the WA Attorney General answered these questions.

FACTUAL BACKGROUND

 SHB 1240 was signed into law by the governor on April 25, 2023, and became effective immediately. Its stated purpose is to limit the prospective sale of assault weapons, while allowing existing legal owners to retain the assault weapons they currently own. To that end, section 3 of the bill enacts the following prohibition: “No person in this state may manufacture, import, distribute, sell, or offer for sale any assault weapon, except as authorized in this section.” A violation of section 3 is a gross misdemeanor.

Pawnbrokers engage in the business of loaning money on the security of pledges of personal property. The term of a pawnbroker loan is ninety days. The customer may redeem their pledged property at any time during the loan period upon repayment of the loan principal, interest, and associated fees. After the term of the loan, unredeemed property on unpaid loans becomes the property of the pawnbroker.

1. If a pawnbroker receives an assault weapon, does the law permit the pawnbroker to return the firearm to the owner on repayment of the loan?

Yes. The Attorney General opined that the legislature’s express intent in enacting SHB 1240 was to allow existing legal owners to retain the assault weapons they currently own. Within the term of a pawnbroker loan, the pledgor retains ownership of the pledged article and retains the right to redeem the pledge at any time.

“The legislature’s stated intent in enacting SHB 1240 confirms this reading. The stated purpose of SHB 1240 is ‘to limit the prospective sale of assault weapons, while allowing existing legal owners to retain the assault weapons they currently own.’ Laws of 2023, ch. 162, § 1. This enacted statement is included within the plain reading of the statute. See G-P Gypsum Corp., 169 Wn.2d at 310. As RCW 19.60.061 makes clear, the pledgor remains the ‘existing legal owner’ of the assault weapon during the loan period, and thus, consistent with the legislature’s explicit intent, remains entitled to retain the assault weapons they currently own.” ~WA Attorney General.

In other words, a pawnbroker who receives an assault weapon as security for a loan may lawfully return the weapon upon repayment of the loan. Returning the assault rifle to the owner  is not an unlawful “delivery.” It is merely a return of property of which the pawnbroker was a bailee.

2. If the owner of a pawned assault weapon defaults on the loan, does the law allow the pawnbroker to sell the firearm?

No. Pawnbrokers are now prohibited from selling assault weapons they receive as security to a loan. Instead, pawnbrokers may sell assault weapons to the armed forces or to a state law enforcement agency for use by that agency or its employees for law enforcement purposes.

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.

Bellingham Considers “Open Carry” Ban

Judge strikes down Election Day open carry ban at Michigan polls - mlive.com

Bellingham is considering a ban on firearms, except for people who are licensed to carry a concealed pistol, at City Hall and at sports facilities such as the Civic Athletic Complex.

The measure would apply only to rifles, pistols and shotguns carried openly. However, it would not apply to individuals who have a concealed pistol license.

According to the Herald, Mayor Seth Fleetwood seeks the ordinance because of an incident at a Bellingham high school graduation ceremony in June. There, police disarmed a teenage boy as he was reaching for a pistol during a fight.

Fleetwood was asking the council to “adopt state law by reference” into municipal code, allowing prosecution of such offenses in Bellingham Municipal Court. Consideration of the ordinance could come as early as Sept. 11, the City Council’s next regularly scheduled meeting.

CONCEALED CARRY PERMITS

A total of 15,919 Whatcom County residents had a concealed pistol license from the state Department of Licensing in 2021, according to data released to The Bellingham Herald under a public records request.

Officials at the Whatcom County Sheriff’s Office were approving about 2,400 such permits annually, and Bellingham Police were issuing slightly fewer than 100 licenses a year, according to Herald reporting in 2021.

Anyone can apply for a concealed pistol license for $36, after passing a background check and submitting their fingerprints. according to state law.

CITY HALL CONFRONTATION

Tempers flared over a perceived threat to firearms possession in March 2020 as the Bellingham City Council updated a measure that grants special powers to the mayor in an emergency.

In that incident, anti-tax activist Tim Eyman appeared at City Hall with several dozen supporters. He falsely claimed that the measure would violate the Second Amendment. A confrontation inside the Council Chambers delayed the start of that meeting for several minutes.

WHAT IS “OPEN CARRY?”

Open Carry refers to the practice of visibly carrying a firearm in public places, as distinguished from concealed carry, where firearms cannot be seen by the casual observer. To “carry” in this context indicates that the firearm is kept readily accessible on the person, within a holster or attached to a sling. Carrying a firearm directly in the hands, particularly in a firing position or combat stance, is known as “brandishing” and may constitute a Firearm Offense. that is not the mode of “carrying” discussed in this article.

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.