312 P.3d 960
Wash.2013Background
- Roy Jorgenson was charged with first-degree assault; a superior court judge found probable cause and he was released on bond.
- While on bond, police found Jorgenson with a handgun and an AR-15 in his car after a reported gunshot; he was arrested and later convicted under RCW 9.41.040(2)(a)(iv) for unlawful possession of a firearm.
- RCW 9.41.040(2)(a)(iv) prohibits ownership, possession, or control of firearms by persons free on bond or personal recognizance pending trial for a listed "serious offense."
- Jorgenson challenged the statute under the Washington Constitution (art. I, §24) and the Second Amendment; the Court treated his claim as an as-applied challenge.
- The Washington Supreme Court reviewed de novo, presumed the statute constitutional if possible, and evaluated both state and federal constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RCW 9.41.040(2)(a)(iv) violates the Washington Constitution (art. I, §24) as applied to Jorgenson | Jorgenson: the statute unconstitutionally impairs the individual right to bear arms by broadly prohibiting firearms possession while on bond | State: the statute is a reasonable regulation to protect public safety where a judge has found probable cause of a serious offense | Held: statute is reasonably related to public safety and constitutional as applied to Jorgenson (deference to legislature; limitation tied to probable cause and serious offenses) |
| Whether RCW 9.41.040(2)(a)(iv) violates the Second Amendment as applied | Jorgenson: Second Amendment bars this pretrial categorical prohibition on firearm possession | State: restriction is limited in scope and duration and serves important interest in preventing armed danger | Held: intermediate scrutiny applies; statute substantially relates to important government interest and is constitutional as applied to Jorgenson |
| Proper standard of review under Second Amendment | Jorgenson: (implicit) stricter protection for right to bear arms | State: intermediate scrutiny appropriate given limited class and temporal scope | Held: Court adopts intermediate scrutiny for this pretrial, categorical restriction |
| Whether statute is procedurally defective for denying individualized dangerousness determination (due process) | Dissent: statute violates procedural due process because it strips fundamental rights on probable cause alone without an individualized hearing | Majority: parties did not brief due process; majority declines to decide; resolves on state and federal constitutional grounds | Held: Majority does not reach due process; dissent would find statute facially invalid for due process reasons |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognized individual right to keep and bear arms but acknowledged longstanding regulatory exceptions)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (held Second Amendment applies to the states)
- United States v. Salerno, 481 U.S. 739 (1987) (upheld pretrial detention statute where individualized dangerousness hearing by clear and convincing evidence required)
- State v. Sieyes, 168 Wn.2d 276 (2010) (Washington Supreme Court on Second Amendment issues and analytical approaches)
- State v. Montana, 129 Wn.2d 583 (1996) (Washington precedent recognizing firearms regulation subject to reasonable regulation test)
- State v. Spiers, 119 Wn. App. 85 (2003) (Court of Appeals held RCW 9.41.040 unconstitutional to extent it criminalized mere ownership while pending trial)