State v. JorgensonState v. Jorgenson
- Reporters:
- ,
- Before:
- González
Lead Opinion
¶1 Washington law prohibits firearms possession by someone released on bond after a judge has found probable cause to believe that person has committed a serious offense.
¶2 Jorgenson claims that
I. FACTS AND PROCEDURAL HISTORY
¶3 The State charged Jorgenson with assault in the first degree for shooting another man. On June 6, 2008, a Cowlitz County Superior Court judge found probable cause to believe Jorgenson had committed the crime. See CrR 2.2(a), 3.2.1. Jorgenson posted bond and was released from jail with no specified release conditions.
¶4 At a pretrial hearing on August 5, 2008, the prosecutor requested a specific release condition barring possession of firearms but the judge declined to impose the condition. At another pretrial hearing on October 14, 2008, while Jorgenson was present, the prosecutor advised the court that
¶5 On November 25, 2008, police officers responded to a 911 call reporting a gunshot and found Jorgenson standing outside his car. Jorgenson admitted he had a rifle and a handgun in the car, and the officers could see the rifle in plain view. The officers knew of Jorgenson’s pending trial for first degree assault and arrested him for second degree unlawful possession of a firearm. On a later search pursuant to a warrant, officers found a 9 mm Tokarev handgun and an Olympic Arms AR-15 rifle inside Jorgenson’s car.
¶6 Jorgenson was charged with two counts of second degree unlawful possession of a firearm under
¶7 Jorgenson appealed his convictions, arguing that
II. STANDARD OF REVIEW
¶8 Constitutional issues are reviewed de novo. State v. Sieyes, 168 Wn.2d 276, 281, 225 P.3d 995 (2010) (citing State v. Chavez, 163 Wn.2d 262, 267, 180 P.3d 1250 (2008)). This court will presume a legislative enactment constitutional and, if possible, construe an enactment so as to render it constitutional. City of Seattle v. Montana, 129 Wn.2d 583, 589-90, 919 P.2d 1218 (1996).
¶9 It is unclear to us from the briefing whether Jorgenson contends
III. ANALYSIS
¶10 Jorgenson argues that
1. Washington Constitution
¶11 Where feasible, we resolve constitutional questions first under our own state constitution before turning to federal law. O’Day v. King County, 109 Wn.2d 796, 801-02, 749 P.2d 142 (1988) (citing State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984)). “Besides our responsibility to interpret Washington’s Constitution, we must furnish a rational basis ‘for counsel to predict the future course of state decisional law.’ ” Id. at 802 (quoting State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986)).
Textual language and differences between parallel provisions
¶13 We examine the first two Gunwall factors together because they are closely related. These factors indicate that the firearm rights guaranteed by the Washington Constitution are distinct from those guaranteed by the United States Constitution.
¶14 Like the United States Constitution, the Washington Constitution vests firearm rights in the “individual citizen.”
Constitutional and common law history
¶15 Another factor supporting a different reading of the Washington Constitution is our common law history. Our constitution is patterned primarily on other state constitutions, which themselves draw from prerevolutionary common law. See State v. Earls, 116 Wn.2d 364, 391, 805 P.2d 211 (1991) (Utter, J., dissenting) (“Washington’s Declaration of Rights in article 1 of the constitution had its sources primarily in other states’ constitutions, rather than the federal charter.” (citing Robert J. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491,497 (1984); The Journal of the Washington State Constitutional Convention 1889, at 512 n.40 (Beverly Paulik Rosenow ed., 1962) (article I, section 24 borrows from the Second Amendment to the United States Constitution; article I, section 27 of the Oregon Constitution; and W. Lair Hill’s proposed article I, section 28))).
¶16 In turn, many early state constitutions couch firearm rights in terms of self-defense or defense of the state. See Heller, 554 U.S. at 585 & n.8 (quoting constitutional provisions from nine states guaranteeing the right to “ ‘bear arms in defense of themselves and the state’ ” or “ ‘bear arms in defense of himself and the state’ ” (quoting
Preexisting state law
¶17 Preexisting state law does not demonstrate how the state right compares to its
Structural differences
¶18 In Gunwall, we found the structural differences between the state and federal constitutions required us to read article I, section 7 of the Washington Constitution more broadly than its federal equivalent. We observed that where the United States Constitution is a grant of enumerated powers, the Washington Constitution is a limitation on the otherwise plenary power of the state. Gunwall, 106 Wn.2d at 66-67. The same reasoning applies here. Because the state has the plenary power to act unless expressly forbidden by the state constitution or federal law, we give a broad reading to the “explicit affirmation of fundamental rights in our state constitution.” Id. at 62.
Particular state interest and concern
¶19 The final Gunwall factor directs us to consider whether the subject matter is local in character or a matter of national policy. Id. Firearm ownership varies radically between localities, as does the incidence of firearm violence. McDonald v. City of Chicago, 561 U.S. 742, 927, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (Breyer, J., dissenting). Furthermore, federalism and comity place the state courts in the role of the “primary protectors of the rights of criminal defendants.” Cabana v. Bullock, 474 U.S. 376, 391, 106 S. Ct. 689,88 L. Ed. 2d 704 (1986). Therefore, this factor also instructs us to look to the state right separately from the federal right.
¶20 The Gunwall analysis, aside from the inconclusive fourth factor, suggests we should interpret the state right separately and independently of its federal counterpart. We analyze article I, section 24 below.
¶21 We have long held that the firearm rights guaranteed by the Washington Constitution are subject to reasonable regulation pursuant to the State’s police power. State v. Krantz, 24 Wn.2d 350, 353,164 P.2d 453 (1945); see also Montana, 129 Wn.2d at 593; Morris, 118 Wn.2d at 144; State v. Rupe, 101 Wn.2d 664, 707 n.9, 683 P.2d 571 (1984). Heller and McDonald left this police power largely intact. Heller explicitly recognized “presumptively lawful” firearm regulations, such as those banning felons and the mentally ill from possessing guns. 554 U.S. at 626-27 & n.26. And while Heller rejected the use of a “freestanding ‘interest-balancing’ approach” to determine the scope of Second Amendment rights, id. at 634, we read the Washington Constitution’s provisions independently of the Second Amendment pursuant to Gunwall.
¶22 Under this court’s precedent, a constitutionally reasonable regulation is one that is “reasonably necessary to protect public safety or welfare, and substantially related to legitimate ends sought.” Montana, 129 Wn.2d at 594 (citing State v. Spencer, 75 Wn. App. 118,121, 876 P.2d 939 (1994); Second Amendment Found., 35 Wn. App. at 586-87). We “balancfe] the public benefit from the regulation against the degree to which it frustrates the purpose of the constitutional provision.” Id. The Court of Appeals applied this test to the statute at bar in State v. Spiers, 119 Wn. App. 85, 79 P.3d 30 (2003).
¶24 Following Montana, we look first to public benefit, then to whether the regulation frustrates the purpose of article I, section 24. The State has an interest in preventing crime by persons awaiting trial. Although we do not find relevant legislative history specifically regarding the ban on defendants charged with serious offenses, we can safely presume that this provision pertains to the legislature’s goal of “ ‘reducing the unlawful use of and access to firearms’ ” as a means of addressing “ ‘increasing violence in our society.’ ” Matthew R. Kite, State v. Radan: Upsetting the Balance of Public Safety and the Right To Bear Arms, 37 Gonz. L. Rev. 201, 206 (2002) (quoting violence reduction programs act, Laws of 1994, 1st Spec. Sess., ch. 7, § 101).4 Thus, we turn to the question of whether proscribing possession or control of a firearm by a defendant unduly frustrates the purposes of article I, section 24.
¶25 We conclude that
¶26 We next consider whether
¶27 The Second Amendment vests the right to bear arms in the individual. Heller, 554 U.S. at 602. In Heller, the Court struck down under the Second Amendment a District of Columbia law that totally banned handgun possession in the home and required any lawful firearm in the home to be disassembled or secured with a trigger lock. Id. at 628, 635. But the rights guaranteed by the Second Amendment are neither absolute nor unconditional. The Court identified “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” as examples of “presumptively lawful regulatory measures” controlling ownership of firearms. Id. at 626-27 & n.26.
¶28 The level of scrutiny (if any) applicable to firearm restrictions challenged under the Second Amendment is not settled. In light of Heller, we declined to analyze a different subsection of
¶30 We find intermediate scrutiny is appropriate to evaluate
¶31 A law survives intermediate scrutiny if it is substantially related to an important government purpose. Sieyes, 168 Wn.2d at 295 n.18 (citing United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996)). The State has an important interest in restricting
¶32 We are mindful, however, of the significant burden this statute places on persons charged with a serious offense. Unlike the federal statutes prohibiting possession of firearms with obliterated serial numbers and banning loaded weapons in national park areas,
IV. CONCLUSION
¶33 We find that the limited, temporary ban on possession of firearms while released on bail pending proceedings for a serious offense did not violate Jorgenson’s right to bear arms under either the state or federal constitution. We affirm.
Madsen, C.J., and Owens, Fairhurst, and Stephens, JJ., concur.Notes
“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 does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm:... If the person is free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in
Jorgenson apparently framed his argument as an as-applied challenge during oral argument. Wash. Supreme Court oral argument, State v. Jorgenson, No. 87448-4 (Oct. 4, 2012), at approx. 14 min., 45 sec., audio recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org.
The dissent concludes
But we note that the legislature was not contemplating firearm crimes specifically by persons released on bond or personal recognizance.
Although not before us here, we note that Washington courts have recognized the defense of necessity for unlawful possession of a firearm. State v. Jeffrey, 77 Wn. App. 222, 225-26, 889 P.2d 956 (1995) (a defendant must show “(1) he was under unlawful and present threat of death or serious injury, (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, (3) he had no reasonable alternative, and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm”); State v. Stockton, 91 Wn. App. 35, 43-44, 955 P.2d 805 (1998). Thus, when self-defense is most urgent, courts have recognized that use of a firearm may be defensible.
We also note that at least two other states ban persons who have been charged with certain crimes and released on bail or personal recognizance from possessing weapons.
We respectfully disagree with the dissent’s characterization of Yancey as upholding a restriction on firearm possession after conviction of a crime. See dissent at 176. Yancey was charged with violating
Concurrence in Part
¶34 (concurring in the dissent) — I agree with the analysis of Justice Wiggins’ dissent. I write separately, however, to emphasize my continued opposition to the majoritys adoption of “intermediate scrutiny’ as the standard of review for laws that limit the fundamental right to bear arms expressly protected by both the United States and Washington Constitutions. This is most dramatically obvious when considering Washington’s unqualified right to bear arms in article I, section 24.9
¶35 Before the United States Supreme Court ruled in McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010); accord District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the Second Amendment applies to the states, this court in State v. Sieyes, 168 Wn.2d 276, 287, 225 P.3d 995 (2010), determined that the right to bear arms is fundamental. “State interference with a fundamental right is subject to strict scrutiny.” Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 220,143 P.3d 571 (2006). In order to pass strict scrutiny, a law infringing on a fundament right must be narrowly tailored to serve a compelling state interest. Id. (citing Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997)).
¶36 In today’s decision, the majority decides that the fundamental right to bear arms does not require strict scrutiny protection. Instead of ensuring that the law is narrowly tailored to serve a compelling interest, the majority gives “deference to the legislature’s finding that certain crimes justify limited restriction of firearms ....” Majority at 158.10
¶37 The majority ultimately finds
¶38 The majority does not persuade me. Recognizing strict scrutiny still allows an analysis in which (unlike most free speech cases) the right to bear arms will not inevitably overwhelm other compelling interests.
¶39 As I noted, of most courts in Sieyes, despite the clarity of our federal and state constitutions, the right to bear arms “has seldom been viewed as deserving the same protection as other fundamental rights found in either the Bill of Rights or our state constitution.” 168 Wn.2d at 306 (J.M. Johnson, J., concurring and dissenting in part). “No good reason exists to continue this legacy of disregard and disproportionate review. In fact, doing so furthers the risk that courts — or the legislature — will do injustice to other fundamental constitutional rights ... by failing to adequately scrutinize laws that limit those rights.” Id. Just because the fundamental right in question is a right that is not politically favored, there is no reason to afford it a lesser level of protection; indeed, such constitutional rights need more protection.
¶40 It is possible that
¶41 Washington’s constitutional founders adopted protection for “[t]he right of the individual citizen to bear arms.” Const, art. I, § 24. This fundamental right must be accorded the protections the authors and settler-ratifiers of our constitution intended. Because this court continues to disregard this constitutional “right” and treat it as deserving of lesser protection, I dissent. Where there is such “compelling interest,” the legislature must state such interest and balance with the least restrictive measure to protect both that interest and the constitutional right to bear arms.
“The right of the individual citizen 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.” Const, art. I, § 24.
Whether a firearm prohibition is constitutionally justified in other cases should be determined as applied therein, with the strict scrutiny review standard.
Dissenting Opinion
¶42 (dissenting) — Washington state law categorically prohibits persons accused — but not yet convicted — of
¶43 Because I find that
DISCUSSION
¶44 We must recognize what the statute at issue does.
from possessing firearms while pending trial for a series of statutorily enumerated serious crimes. The judge must find only probable cause that the accused committed the crime— there is no opportunity for an individualized hearing of dangerousness (indeed, the facts of this case demonstrate that judicial discretion will be overruled by the statute). The accused is deprived of the fundamental right to possess firearms and faces additional criminal prosecution upon exercising that right. See State v. Sieyes, 168 Wn.2d 276, 287, 225 P.3d 995 (2010) (recognizing that the right to bear arms is fundamental).
¶45 Though the right to bear arms is not absolute, regulation that infringes on an individual liberty must be implemented in a fair manner. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). This required fundamental fairness analysis, omitted by the majority, is the hallmark of our procedural due process review. United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).
The categorical prohibition on the possession of firearms for indictees violates procedural due process
¶46 The due process clause provides that no state shall deprive any person of “life, liberty, or property, without due process of law.”12 U.S. Const, amend. XTV;
¶47 The Supreme Court has applied a procedural due process analysis to deprivation of a defendant’s liberty pretrial. Salerno, 481 U.S. 739. In Salerno, the Court considered the constitutionality of the provisions of the “Adam Walsh Amendments to the Bail Reform
¶48 Salerno’s due process analysis of pretrial detention applies equally to the pretrial prohibition on the possession of firearms. Federal courts have applied the Salerno standard in assessing the federal Adam Walsh Amendments,13 various provisions of which have been held facially unconstitutional by numerous federal district courts. See United States v. Karper, 847 F. Supp. 2d 350 (N.D.N.Y. 2011); United States v. Smedley, 611 F. Supp. 2d 971 (E.D. Mo. 2009); United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008); United States v. Torres, 566 F. Supp. 2d 591 (W.D. Tex. 2008).14 Like the Washington statute, the Adam Walsh Amendments identify a subset of serious crimes15 and require that all persons indicted for those crimes are prohibited from exercising certain liberties, including possession of a firearm, without an individual determination of risk.
¶49 In assessing whether a right to due process exists, we examine whether the person has been deprived of a liberty interest, and we examine the process by which that liberty was denied. In re Pers. Restraint of McCarthy, 161 Wn.2d 234,240-41,164 P.3d 1283 (2007) (citing Wilkinson v. Austin, 545 U.S. 209, 221,125 S. Ct. 2384,162 L. Ed. 2d 174 (2005)). We initially consider whether the individual is being deprived of an interest that arises from “ ‘the Constitution,’ from ‘guarantees implicit in the word “liberty,” ’ or ‘from an expectation or interest created by state laws or policies.’ ” Id. (quoting Wilkinson, 545 U.S. at 221). Once we have determined that an individual has been deprived of a liberty interest, our test for the degree of due process required in a particular case follows the federal standard in balancing three factors: the private interest to be protected, the risk of erroneous deprivation of that interest by the government’s procedures, and the government’s
¶50 Applying this analysis, it is clear that
A.
¶51 The right to possess firearms falls within the scope of the right guaranteed by article I, section 24 and by the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008); United States v. Reese, 627 F.3d 792 (10th Cir. 2010); Sieyes, 168 Wn.2d at 291; State v. Rupe, 101 Wn.2d 664, 706-07, 683 P.2d 571 (1984). Recognizing this right, we also recognize that Jorgenson had a liberty interest in this right sufficient to trigger a due process analysis. McCarthy, 161 Wn.2d at 240 (“ A liberty interest may arise from the Constitution.’ ” (quoting Wilkinson, 545 U.S. at 221)). We do not recognize a hierarchy of constitutional rights; the fact that a right is enumerated renders it fundamental and elevates it above all nonfundamental interests. Heller, 554 U.S. at 634; see also Washington v. Glucksberg, 521 U.S. 702, 719-20,117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997).
¶52
B. The statute deprives the defendant of fundamental rights
¶53 Jorgenson’s fundamental right to bear arms is not unlimited. Heller, 554 U.S. at 626 (noting with approval long standing prohibitions on the possession of firearms by felons and the mentally ill). However, Salerno makes clear that the regulation of pretrial arrestees’ liberties requires an individualized determination of risk to ensure that individuals are not erroneously deprived of their fundamental rights. See United States v. Laurent, 861 F. Supp. 2d 71, 108 (E.D.N.Y. 2011) (citing Salerno, 481 U.S. at 751); United States v. Scott, 450 F.3d 863, 874 (9th Cir. 2006); see also United States v. Williams, 616 F.3d 685, 692-93 (7th Cir. 2010); Arzherger, 592 F. Supp. 2d at 602-03. “Absent any individualized determination, there is simply no way of knowing whether the deprivation of liberty is warranted or wholly erroneous.” Smedley, 611 F. Supp. 2d at 975.
¶54 The mandatory restrictions of
¶55
¶56 The federal statutory scheme explicitly details what must occur to sufficiently limit the risk of the erroneous deprivation of fundamental rights. Beyond merely making an arrest and the finding of probable cause, the government must “convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Salerno, 481 U.S. at 750; see also
C. The State’s general interest in public safety, without an individualized determination of risk, does not outweigh Jorgenson’s interest in his fundamental right to bear arms
¶57 The State’s regulatory interest in community safety outweighs an individual’s private liberty interest under special, limited circumstances. Salerno, 481 U.S. at 749. Individuals may be detained if they pose a risk of flight or if the State presents evidence that they pose a danger to witnesses. Id. In determining the validity of the government interest, courts balance the nature of the interest and the burdens that an additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335.
¶58
¶59 A judicial determination of probable cause that the defendant committed the charged crime is insufficient in itself to justify deprivation of a fundamental right. Id. at 750 (statute valid only with probable cause and with individualized determination of dangerousness); Scott, 450 F.3d 863 at 874 (“arrest alone [does] not establish defendant’s dangerousness; it merely trigger[s] the ability to hold a hearing during which such a determination might be made”). In order to subordinate an individual’s fundamental liberty interest to the needs of society, a judicial officer must find by clear and convincing proof that an arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Salerno, 481 U.S. at 750. Probable cause alone does not elevate the State’s general interest in preventing crime to the point that would warrant denying Jorgenson his fundamental rights. Compare majority at 164, with Salerno, 481 U.S. at 750.
¶60 The government’s interest in ensuring the safety of the community would not be substantially burdened by requiring an independent judicial determination of the danger caused by the defendant and the efficacy of the proposed condition. This requirement is consistent with both federal practices of detention and with restrictions on the right to bear arms in the federal system; due process requires that an arrestee’s liberty be restricted only after a determination that there is no other less drastic means that can reasonably assure his or her presence at trial or the safety of the community. Salerno, 481 U.S. at 750; see also
¶61 The majority identifies only two other states that prohibit pretrial releasees from possessing firearms. Majority at 162 n.7. Nearly every state is able to ensure the safety of the community by restricting the possession of firearms to those who have been convicted of a serious offense or felony or by requiring an individualized determination of dangerousness performed by the trial court following the initial indictment. See, e.g.,
¶62 In addition, no court has upheld a ban like ours after the decision of the Supreme Court in Heller, 554 U.S. 570. Not a single case cited by the majority supports a categorical ban on the possession of firearms by individuals pending trial in the absence of an individualized determination of dangerousness. Instead, the majority’s cases either uphold restrictions on possession after conviction of a
¶63 The majority relies most heavily on Laurent, a case that explicitly limits its holding to the receipt, shipping, or transportation of firearms. 861 F. Supp. 2d at 107-08 (noting that the statute at issue “does not categorically prohibit an individual under indictment from retaining weapons already in his possession”). The majority’s reliance on these decisions is misplaced in that the majority fails to recognize that these decisions do not approve of pretrial restriction of the possession of firearms without an opportunity to be heard and a judicial determination that the restriction is necessary.
¶64 It is entirely appropriate to prohibit some individuals accused of a serious crime from possessing firearms. However, the categorical denial of due process when stripping individuals of their fundamental rights can never be valid. Salerno, 481 U.S. at 744;Arzberger, 592 F. Supp. 2d at 603.
CONCLUSION
¶65 The legislature may reasonably regulate the right to bear arms, consistent with the precedents of this court and of the United States Supreme Court. However, any such regulation must comport with due process.
¶66 I cannot limit this analysis to an as-applied challenge to
¶67 I respectfully dissent.
C. Johnson, J., and Chambers, J. Pro Tem., concur with Wiggins, J. The majority declines to engage with procedural due process because the parties did not brief the issue. Majority at 151 n.3. While Ray Jorgenson does not directly discuss procedural due process in his briefing before this court, he nevertheless relies on the fact that
Due process challenges under the Washington Constitution do not require separate analysis from those under the federal constitution. Hardee v. Dep’t of Soc. & Health Sens., 172 Wn.2d 1, 7 n.7, 256 P.3d 339 (2011).
Of these cases, the only one that analyzes the firearm provision — Arzberger— finds it unconstitutional. 592 F. Supp. 2d at 602-03.
Serious crimes under the Adam Walsh Amendments include kidnapping, sex trafficking, aggravated sexual abuse, sexual abuse, abusive sexual contact, murder, sexual exploitation of children, selling or buying of children, child pornography, coercion or entitlement, or failure to register as a sexual offender.
While the Ninth Circuit of the Court of Appeals has declined to find the Adam Walsh Amendments unconstitutional, United States v. Peeples, 630 F.3d 1136 (9th Cir. 2010), its reasoning is distinguishable from the facts here. Relying on the principle that statutes should be read to avoid serious constitutional issues, the Ninth Circuit focused on provisions of the statute that enabled judges to utilize discretion, such as in the imposition of a curfew and the location and times of mandatory electronic monitoring. Id. at 1138-39. Ignoring the automatic restrictions on the possession of firearms, the court read the statute as allowing for judicial discretion.
It should be noted that under our case law, even defendants who are convicted of a crime retain a procedural due process interest in release on parole. See In re Pers. Restraint of Lain, 177 Wn.2d 1,14-18,296 P.3d 872 (2013). A person who has not even been convicted is still presumed innocent and should receive at least the same level of due process protection where fundamental rights are concerned. In other words, if a convicted person has a due process interest in liberty, then a person who is merely accused has a still greater due process interest in liberty. And if a person has a due process interest in liberty, then he or she also has a due process interest in possessing firearms because all fundamental rights are considered on the same footing. See Heller, 554 U.S. at 634; Glucksberg, 521 U.S. at 719-20.
The majority notes that the nature of the particular crime of which Jorgenson is accused — assault in the first degree with a firearm — creates a nexus between the accusation and potential future dangerousness. It should go without saying that the assault charge does not divest Jorgenson of the presumption of innocence. Nor does the assault charge establish that the automatic removal of Jorgenson’s firearm rights is necessary to advance the State’s interest in safety. As we discuss below, if Jorgenson was clearly dangerous, then the trial judge could have imposed (and presumably would have imposed) a firearm condition when he was given the opportunity.
The majority also points to a case barring undocumented aliens from possessing firearms, United States v. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir. 2012), and a statute barring persons who have renounced their United States citizenship from possessing firearms,
Finally, the majority points to a statute that forbids persons dishonorably discharged from the military from possessing firearms.