143 Wash. 2d 658 | Wash. | 2001
Lead Opinion
In consolidated cases Petitioners Zachary B. Schmidt and Marlin L. Ayers seek review of separate decisions of the Court of Appeals, Division Two.
In State v. Schmidt,
In State v. Ayers,
This court consolidated the cases and granted review. We affirm the Court of Appeals in both cases.
QUESTION PRESENTED
The question presented in this case is whether amendments to RCW 9.41.040 violate constitutional prohibitions against ex post facto laws by making a convicted felon’s possession of all firearms unlawful because of a felony conviction which occurred prior to the statutory amendments.
STATEMENT OF FACTS
State of Washington v. Zachary B. Schmidt
In 1988, Petitioner Zachary B. Schmidt was convicted of a felony, assault in the second degree.
On December 1, 1997 at 2:27 a.m., while on routine patrol, Kitsap County Deputy Sheriff Ronald S. Zude observed a 1978 Ford pickup truck with no license plate lights heading west on Holly Road in Kitsap County, Washington.
The trial court in conclusions of law at the CrR 3.5 hearing determined that Deputy Zude made a “valid traffic stop” and his initial questions to Petitioner about the existence of any weapons in the truck were “appropriate to a Terry[
On December 3, 1997, the Kitsap County Prosecuting Attorney filed an information in the Kitsap County Superior Court charging Petitioner Schmidt with one count of first degree unlawful possession of a firearm as follows:
He, the said ZACHARY B. SCHMIDT, in the County of Kitsap, State of Washington, on or about the 1st day of December, 1997, owned, possessed, or had in his or her control a firearm, after having been previously convicted of Second Degree Assault in State v. Schmidt, Kitsap County Cause No. 88-1-00055-5; contrary to the Revised Code of Washington 9.41.040(1)(a).[15 ]
On April 30, 1998, a jury found Petitioner “guilty” of unlawful possession of a firearm in the first degree.
In a concurring opinion, Chief Judge David Armstrong agreed with the result, but stated “the majority answers the wrong question.”
State of Washington v. Marlin L. Ayers
In 1987 or 1988, Petitioner Marlin L. Ayers was convicted of a felony, theft in the first degree.
In 1984, 1989 and 1993,
In 1996 former RCW 9.41.040 was amended to make it a crime for a person convicted of “any felony” to possess any firearm.
Between November 1, 1997 and November 25, 1997, Petitioner Ayers and his wife and son pawned several firearms at two pawnshops in Kitsap County: Topkick Jewelry and Loan, and Randy’s Loan and Coin.
On February 17, 1998, the Pierce County Superior Court issued a certificate and order of discharge on Petitioner Ayers’ conviction of theft in the first degree.
On October 13, 1998, the Pierce County Prosecuting Attorney filed an information in the Pierce County Superior Court charging Petitioner Ayers with seven counts of second degree unlawful possession of a firearm under RCW 9.41.040(1)(b). Count one of the information read:
I, JOHN W. LADENBURG, Prosecuting Attorney for Pierce County,... do accuse MARLIN L. AYERS of the crime of UNLAWFUL POSSESSION OF A FIREARM IN THE SECOND DEGREE, committed as follows:
That MARLIN L. AYERS, in Pierce County, Washington, on or about the 8th day of November, 1997, did unlawfully and feloniously own, have in his possession, or under his control a firearm, to wit: a Winchester 30-30 caliber rifle, he having been previously convicted in the State of Washington or elsewhere of a felony, to wit: Theft in the First Degree, contrary to RCW 9.41.040(1)(b), and against the peace and dignity of the State of Washington.[36 ]
Counts II through VII were identical, with the exception of the date and the make and model of the rifles.
On December 11, 1998, Petitioner moved to dismiss the information
The Superior Court, the Honorable Grant L. Anderson, heard oral arguments on the motion on December 23, 1998 and issued findings of fact and conclusions of law on February 10, 1999.
The State appealed to the Court of Appeals, Division Two. On May 5, 2000, in an unpublished opinion, the Court of Appeals reversed and remanded the case for further proceedings.
Both Petitioner Schmidt and Petitioner Ayers sought review by this court, which was granted on November 11, 2000. The cases were consolidated because of the common issue of whether the 1994 and 1996 amendments making it unlawful to possess firearms because of felonies they committed prior to the amendments violate the constitutional prohibition against ex post facto laws.
DISCUSSION
The current version of RCW 9.41.040 provides in relevant part:
Unlawful possession of firearms—Ownership, possession by certain persons. (1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter.[47 ]
(b) 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 (a) of this subsection for the crime of unlawful possession of a firearm in the first degree and*670 the person owns, has in his or her possession, or has in his or her control any firearm:
(i) After having previously been convicted in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under (a) of this subsection, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence . . .;
(ii) After having previously been involuntarily committed for mental health treatment under RCW 71.05.320, 71.34.090, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047;
(2) (a) Unlawful possession of a firearm in the first degree is a class B felony, punishable under chapter 9A.20 RCW.
(b) Unlawful possession of a firearm in the second degree is a class C felony, punishable under chapter 9A.20 RCW.
(3) Notwithstanding RCW 9.41.047 or any other provisions of law, as used in this chapter, a person has been “convicted”, whether in adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed,.... Conviction includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state. A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. . . .
(4) Notwithstanding subsection (1) of this section, a person convicted of an offense prohibiting the possession of a firearm under this section other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion,*671 burglary, or violations with respect to controlled substances under RCW 69.50.401(a) and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) of this section and has not previously been convicted of a sex offense prohibiting firearm ownership under subsection (1) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:
(a) Under RCW 9.41.047; and/or
(b) (i) If the conviction was for a felony offense, after five or more consecutive years in the community without being convicted or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.360; or
(ii) If the conviction was for a nonfelony offense, after three or more consecutive years in the community without being convicted or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.360 and the individual has completed all conditions of the sentence.
Petitioners Schmidt and Ayers contend the 1994 and 1996 amendments to the firearms statute, RCW 9.41.040, violate constitutional prohibitions to the extent the amendments prohibit them from owning, possessing or having control of any firearm because of a prior felony conviction. They argue the Court of Appeals erred in concluding the ex post facto clause was not violated, based upon its determination that the amendments punished them for future conduct and not past conduct involving a prior conviction.
Petitioner Schmidt argues that the Court of Appeals did not address the proper issue—whether his punishment increased when the 1994 amendment was enacted because it took away his right to own, possess or have control of a
The State contends in both cases that the decisions of the Court of Appeals were correct. The State argues in the Schmidt case that Petitioner’s conviction for unlawful possession of a firearm in the first degree did not violate the ex post facto clause because he was being punished for his conduct after enactment of the 1994 amendment and not for his prior conduct.
The ex post facto clauses of the United States Constitution
“The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts.”
As an initial consideration, it is the law in effect at the time a criminal offense is actually committed that
The majority opinion of the Court of Appeals in State v. Schmidt began with the correct premise that ex post facto prohibitions apply only to statutes which are “criminal” or “punitive.”
Both the 1994 and 1996 amendments are substantive (they affirmatively prohibit possession of firearms by convicted felons under penalty of criminal punishment) and retrospective (they are applicable to petitioners based upon crimes they committed before the amendments were enacted). The dispositive question is whether the amendments altered the “standard of punishment” for petitioners’ predicate offenses.
This court has held that no ex post facto violation occurred when offenses committed before enactment of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, were used to calculate the offender score for subsequent crimes.
The 1994 and 1996 amendments to RCW 9.41.040 do not alter the standard of punishment for prior felony
The court observed that the text of the Oregon statute made clear the legislative intent to provide for the safety of citizens by restricting possession of firearms by those most likely to engage in dangerous conduct.
Under the Washington Constitution, article I, section 1, the Legislature may prescribe laws to promote the health, peace, safety, and general welfare of the people of Washington.
Although the prohibitions of the firearms statute impose a disability and present a threat of criminal punishment if violated, the prohibitions do not amount to punishment for a prior conviction, nor do they “alter the standard of punishment” applicable to those crimes.
Petitioner Schmidt also claims the right to bear arms is comparable to other fundamental rights, such as voting, traveling, and freedom from unreasonable search and seizure.
The decisions of the Court of Appeals in both the Schmidt case and the Ayers case were correct.
SUMMARY AND CONCLUSIONS
In separate trials involving violations of the firearms statute, RCW 9.41.040, Petitioner Zachary B. Schmidt was convicted of one count of first degree unlawful possession of a firearm and seven counts of second degree unlawful possession of a firearm were dismissed against Petitioner Marlin L. Ayers. In this consolidated appeal, they assert that the Court of Appeals erred in finding that the 1994 and 1996 amendments to the firearms statute, making it unlawful for convicted felons to possess any firearm, did not violate the constitutional prohibition against ex post facto laws because, although criminal and punitive, they were not retrospective—the amendments punished only future conduct and not past conduct.
The federal and state ex post facto clauses prohibit enactment of any law which imposes punishment for an act which was not punishable when committed, or which increases the quantum of punishment after the crime was committed. The test to determine whether a law violates the ex post facto clause is whether the law is substantive or merely procedural; is retrospective (applies to events which occurred before its enactment); and disadvantages the person affected by it.
The Court of Appeals correctly determined the 1994 and 1996 amendments to RCW 9.41.040 did not violate prohibitions against ex post facto laws. The law in effect at the time a criminal offense is committed controls disposition of the case.
The 1994 and 1996 amendments to RCW 9.41.040 do not
The 1994 and 1996 amendments to RCW 9.41.040 did not punish petitioners for past offenses nor increase their punishment for prior convictions. Instead, incident to the State’s regulation of firearms to protect the safety of the public, the prohibition of firearm possession was designed to regulate more closely the ownership, possession and control of firearms by those who, because of prior felony convictions, were unfit to be entrusted with any firearm.
We affirm the decision of the Court of Appeals, Division Two, which affirmed Petitioner Zachary B. Schmidt’s conviction by the Kitsap County Superior Court for first degree unlawful possession of a firearm, and affirm reversal and remand by the Court of Appeals of dismissal by the Pierce County Superior Court of seven counts of second degree unlawful possession of a firearm against Petitioner Marlin L. Ayers.
Ireland, Bridge, and Owens, JJ., concur.
State v. Schmidt, 100 Wn. App. 297, 996 P.2d 1119 (2000).
State v. Ayers, No. 24379-2-II, 2000 Wash. App. LEXIS 725, 2000 WL 554275 (Wash. Ct. App. May 5, 2000).
See Report of Proceedings, Kitsap County Superior Court (Apr. 29, 1998) at 5-6. During a CrR 3.5 hearing, instead of submitting a certified copy of Petitioner’s conviction for second degree assault in 1988 (Cause Number 88-1-00055-5), the State presented a stipulation that Petitioner was convicted of a “serious offense” as required by RCW 9.41.040; see also Clerk’s Papers at 1.
Former RCW 9.41.040 (1983).
Former RCW 9.41.040 (1994) (Laws of 1994, 1st Spec Sess., ch. 7, § 402) provided:
(1) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm if the person owns, has in his or her possession, or has in his or her control any firearm:
(a) After having previously been convicted in this state or elsewhere of a serious offense, a domestic violence offense enumerated in RCW 10.99.020(2), a harassment offense enumerated in RCW 9A.46.060, or of a felony in which a firearm was used or displayed, except as otherwise provided in subsection (3) or (4) of this section[.]
“Serious offense” was defined elsewhere in the statute to include any “crime of violence.” RCW 9.41.010(11) and (12)(a); (Laws of 1994, 1st Spec. Sess., ch. 7, § 401(11) and (12)(a)).
See Report of Proceedings, Kitsap County Superior Court (Apr. 29, 1998) at 26-30 and 53; see Clerk’s Papers at 33, “Findings of Fact and Conclusions of Law on CrR 3.5 Hearing,” Kitsap County Superior Court (Apr. 30, 1998).
Id. at 30; see Clerk’s Papers at 34.
Id.; see Clerk’s Papers at 33.
See Report of Proceedings, Kitsap County Superior Court (Apr. 29, 1998) at 41 and 53.
Id. at 32-36 and 50. At trial, Deputy Zude testified that when he asked Petitioner about the guns found in the truck, he responded “[m]y mind went blank about the rifle, and I forgot it was there.” When Petitioner took the stand, he testified he received the keys to Mr. Mesinger’s truck on the evening of November 30, and although he had seen the gun earlier that night, he did not place it under the seat of the truck. Id. at 53-60.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
See Clerk’s Papers at 34.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Clerk’s Papers at 33-34.
Id. at 2.
Id. at 71.
Id. at 87. Petitioner’s sentence represented the low end of the standard range sentence of 36 to 48 months with an offender score of 4.
Id. at 96.
Schmidt, 100 Wn. App. 297.
Id. at 305 (Armstrong, C.J., concurring).
7 F.3d 1444 (9th Cir. 1993), overruled in part on other grounds by United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998).
Schmidt, 100 Wn. App. at 307 (Armstrong, C.J., concurring).
The trial court’s findings of fact and conclusions of law (Clerk’s Papers at 59) indicate Petitioner was convicted of first degree theft in 1987. This is also indicated in Petitioner’s Motion for Discretionary Review at 1 and the State’s brief at 2. However, the unpublished decision of the Court of Appeals identifies the date of conviction as 1988. This is consistent with Petitioner’s declaration and the Declaration for Determination of Probable Cause. (Clerk’s Papers at 6 and 70.) The inconsistency is of no consequence.
Former RCW 9.41.040(1) (1983).
Laws of 1983, ch. 232, § 2.
The expiration date for a valid concealed weapons permit obtained in 1993 was 1997. See Clerk’s Papers at 74.
Id. at 74-76.
Id. Each applicant is required to initial or sign the completed application form which attests to the fact they ‘have read the entire text of [the] form and [their] statements and the other information set forth are true and correct.” Petitioner Ayers initialed or signed all three applications.
Former RCW 9.41.040(1)(a) and (b)(i) (1996) (Laws of 1996, ch. 295, § 2) provided:
(1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter.
(b) 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 (a) of this subsection 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:
(i) After having previously been convicted in this state or elsewhere of any felony not specifically fisted as prohibiting firearm possession under (a) of this subsection, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment in the second degree, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence .. .;
By 1996, the statute was divided into first and second degree unlawful possession of a firearm, with the lesser degree applying to those convicted of certain crimes other than “serious offenses.” Before the 1996 amendment, the list
See Clerk’s Papers at 1-7.
Id. at 69.
Id. at 70-71.
Id. at 14. The order of discharge stated that “the defendant’s civil rights lost by operation of law upon conviction [are] HEREBY RESTORED. This restoration of civil rights specifically may not include the right to ship, transport, possess or receive firearms. Legal advice should be obtained.” (Emphasis added.)
Id. at 15. The order restoring firearms rights under RCW 9.41.040 stated that “[Petitioner] being represented by Geoffrey Cross, it appearing that petitioner has not been convicted of a Class A felony or gross misdemeanor in five years, and has no pending charges, and is in no way a danger to the public, now therefore, it is ... ORDERED, ADJUDGED AND DECREED that the firearm rights of [Petitioner], Marlin L. Ayers, [are] restored.”
Id., at 60; Br. of Appellant at 3; Report of Proceedings, Pierce County Superior Ct. (Dec. 23, 1998) at 17. The prosecutor stated in pretrial conference that Petitioner’s counsel presented him with an order restoring Petitioner’s firearms rights, suggesting he could not be prosecuted for this crime because his rights were restored. Petitioner’s counsel responded that Petitioner was advised by “the pawn shop detail while this was under investigation that there was a problem. That’s why [Petitioner] proceeded expeditiously... to clean up this mess. The problem was that the co-defendant [in the first degree theft case] hadn’t paid his share of the restitution.”
Clerk’s Papers at 1.
Id. at 1-5.
Id. at 84-90.
107 Wn.2d 346, 729 P.2d 48 (1986).
Report of Proceedings, Pierce County Superior Ct. (Dec. 23, 1998 and Feb. 10, 1999).
Clerk’s Papers at 59-62.
76 Wn. App. 726, 887 P.2d 492 (1995). The Court of Appeals, Division One, concluded RCW 9.41.040, making it a crime for a convicted felon to possess a short firearm or pistol, did not violate ex post facto prohibitions, as applied to a juvenile who committed a felony VUSCA (violation of Uniform Controlled Substances Act) offense before enactment of an amendment to the statute setting forth the substantive offense, “because it did not alter or increase the punishment for an existing crime,” but rather “created a new substantive offense.” Id. at 731-32.
80 Wn.2d 343, 494 P.2d 469 (1972).
State v. Ayers, No. 24379-2-II, 2000 Wash. App. LEXIS 725, 2000 WL 554275 (Wash. Ct. App. May 5, 2000).
In addressing the ex post facto issue, the Court of Appeals relied upon its decision in Forster v. Pierce County, 99 Wn. App. 168, 991 P.2d 687, review denied, 141 Wn.2d 1010 (2000), in which it adopted the reasoning in State v. Watkins.
Only the ex post facto issue is now before this court.
RCW 9.41.010(12) defines “serious offense” as “any of the following felonies or a felony attempt to commit any of the following felonies, as now existing or hereafter amended: (a) Any crime of violence[.]”
RCW 9.41.010(11) defines any “crime of violence” as:
(a) Any of the following felonies, as now existing or hereafter amended: Any felony defined under any law as a class A felony or an attempt to commit a class A felony,. .. assault in the second degree . ..;
(b) Any conviction for a felony offense in effect at any time prior to June 6, 1996, which is comparable to a felony classified as a crime of violence in (a) of this subsection; and
(c) Any federal or out-of-state conviction for an offense comparable to a felony classified as a crime of violence under (a) or (b) of this subsection.
RCW 9.41.010(14) defines “felony” to mean: “any felony offense under the laws of this state or any federal or out-of-state offense comparable to a felony offense under the laws of this state.”
See Pet. for Review (Schmidt) at 6-7.
See Mot. for Discretionary Review (Ayers) at 4-5.
See Suppl. Br. of Resp’t (Schmidt) at 2; Br. of Resp’t (Schmidt) at 2-7.
See Suppl. Br. of Resp’t (Schmidt) at 3.
See Br. of Appellant (Ayers), Court of Appeals, Division Two, at 10.
“No State shall. .. pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.” U.S. Const. art. I, § 10, cl. 1.
“No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed.” Wash. Const. art. I, § 23.
In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 169-70, 949 P.2d 365 (1998) (citing State v. Hennings, 129 Wn.2d 512, 524-25, 919 P.2d 580 (1996)); State v. Ward, 123 Wn.2d 488, 496-98, 869 P.2d 1062 (1994) (Ex post facto clause not violated because applying the sex offender registration statute to prior convictions occurring before its enactment did not constitute punishment.).
Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
Ward, 123 Wn.2d at 498 (emphasis omitted) (quoting In re Pers. Restraint of Powell, 117 Wn.2d 175, 185, 814 P.2d 635 (1991) (citing Weaver v. Graham, 450 U.S. at 29; Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990))).
Id.
De Veau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960).
De Veau, 363 U.S. at 160.
Huss, 7 F.3d at 1446; State v. Edwards, 104 Wn.2d 63, 70, 701 P.2d 508 (1985) (quoting Johnson v. Morris, 87 Wn.2d 922, 927, 557 P.2d 1299 (1976)).
Schmidt, 100 Wn. App. at 299-302; see Ward, 123 Wn.2d at 499.
Schmidt, 100 Wn. App. at 302.
In re Pers. Restraint of Williams, 111 Wn.2d 353, 759 P.2d 436 (1988).
In re Williams, 111 Wn.2d at 363.
Huss, 7 F.3d at 1447 (quoting Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943) (“[C]onviction of a crime may be made the conclusive test of past behaviour.”); see also United States v. Karnes, 437 F.2d 284, 289-90 (9th Cir.), cert. denied, 402 U.S. 1008 (1971)).
Id. at 1448 (quoting Cases, 131 F.2d at 921).
Id.
Id.
Id.
Ward, 123 Wn.2d at 508-09 (citing State v. Brayman, 110 Wn.2d 183, 192-93, 751 P.2d 294 (1988)).
Id. (quoting Brayman, 110 Wn.2d at 193 (quoting Reesman v. State, 74 Wn.2d 646, 650, 445 P.2d 1004 (1968))).
See In re Personal Restraint of Ness, 70 Wn. App. 817, 823-24, 855 P.2d 1191 (1993) (loss of the right to possess firearms is only a collateral consequence of pleading guilty to a crime), review denied, 123 Wn.2d 1009 (1994).
Pet. for Review (Schmidt) at 7; see also Mot. for Discretionary Review (Ayers) at 2-3.
See Morris v. Blaker, 118 Wn.2d 133, 144, 821 P.2d 482 (1992) (Right to bear
Huss, 7 F.3d at 1447 (quoting Cases v. United States, 131 F.3d 916, 921 (1st Cir. 1942).
Concurrence Opinion
(concurring) — I concur with the majority but write separately to point out that the overwhelming majority of other jurisdictions have also concluded that statutes prohibiting felons from possessing firearms do not violate the ex post facto clause even when the predicate felony was committed before the statute was enacted. State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001) (listing cases from various federal and state jurisdictions).
The general consensus among courts applying both state
The dissent in this case argues, however, that the prohibition itself, whether or not the law is ever violated or the offender ever punished, expands the disability suffered as a result of the prior felony conviction and thus represents an ex post facto increase in the punishment. Such an argument was forcefully advanced by the dissent in People v. Mills, 6 Cal. App. 4th 1278, 1298, 8 Cal. Rptr. 2d 310 (1992) (Timlin, J., concurring and dissenting). Notably, however, this is not the law in any state.
Most courts have concluded that restriction of the right of convicted felons to possess firearms is a legitimate exercise of police power rationally related to governmental interest in securing public safety. United States v. Huss, 7 F.3d 1444, 1447-48 (9th Cir. 1993), overruled on other grounds by United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998); State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001); Olvera, 191 Ariz. at 77; State v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641 (1994); People v. Tice, 220 Mich. App. 47, 52, 558 N.W.2d 245 (1996); Dodson v. Commonwealth, 23 Va. App. 286, 295, 476 S.E.2d 512 (1996).
The intent of the law at issue in this case is plainly stated in its title: “Violence Reduction Programs—An act relating to violence prevention.” ESSJB H.B. 2319, Laws of 1994, 1st Spec. Sess., ch. 7. In addition to firearms control, the table of contents of the act lists public health, community networks, and public safety, as well as education, employment, and media as areas conducive to violence reduction programs. The intent section of the act lists reducing access to firearms, increasing educational efforts, and community-designed violence prevention programs in addition to increased criminal penalties as ways to reduce violence. Laws of 1994, 1st Spec. Sess., ch. 7, § 101; see RCW 43.70.540. The next paragraph of the intent section of the act specifically states that the problem is to be addressed as a public health issue using approaches similar to programs seeking to combat infectious disease, tobacco use, and traffic fatalities. Id. The legislative finding and intent section of this legislation which amends the responsibilities of a far-ranging array of public agencies including the state patrol, the office of the administrator for the courts, the department of social and health services, and the superintendent of public instruction as well as the department of corrections, is located in the statutory section pertaining to the department of health. RCW 43.70.540. This clearly implies the statute is regulatory in nature and the overall intent is to improve public health and safety.
The majority here coincides with the conclusion of the majority of state and federal courts that legislation prohibiting possession of firearms by felons is not applied retroactively and, even if such legislation increases a civil disability or has penal effects, it does not violate ex post facto prohibitions because the intent of the legislature is to regulate potentially dangerous activity by persons reasonably deemed unfit to engage in that activity. Accordingly, I agree with the majority that the result reached by the Court of Appeals should be affirmed.
Dissenting Opinion
(dissenting) — While I agree with much of what the majority says and its analytical framework for resolving the issue in these cases, I disagree with its result. I would hold the 1994 statutory amendments to RCW 9.41.040 altered the standard of punishment for Zachary Schmidt’s and Marlin Ayers’ predicate offenses and violate ex post facto principles. By minimizing the right being taken away, the majority erroneously concludes the amend
We must recognize the significance of what RCW 9.41.040 takes away. Article I, section 24 of the Washington State Constitution provides, in relevant part, “[t]he right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.” It is this constitutional right that is being affected by the statutory amendments. No one disputes the significance of this constitutional right. I agree with the majority the government can take this right away from persons convicted of certain crimes and the loss of this constitutional right is an allowable punishment imposed for those convictions. The defendants in these cases were punished for previous crimes they committed. The issue in these cases arises because, but for the statutory amendments, defendants’ current conduct of having guns would be perfectly legal. Therefore, no crime would have been committed.
The ex post facto clause of the Washington Constitution prohibits enactment of any law that increases the quantum of punishment after the offense was committed. Wash. Const. art. I, § 23; In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 169-70, 949 P.2d 365 (1998). This prohibition against ex post facto laws applies only to laws inflicting criminal punishment. Johnson v. Morris, 87 Wn.2d 922, 928, 557 P.2d 1299 (1976). Laws that are primarily regulatory with incidental punitive effects do not violate the ex post facto clause. De Veau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 4 L. Ed. 2d 1109 (1960). Here, the dispositive issue is whether it is punishment to restrict an individual’s constitutional right to possess firearms as a consequence of felony convictions occurring prior to a statute’s effective date. The majority believes the ex post facto clause was not violated in these cases because, in its opinion, RCW 9.41.040 is a regulatory statute and not punitive. Majority at 676-78. I cannot agree with this conclusion.
There is nothing regulatory about creating a new crime where none existed before, based solely upon the conduct of
The problem arises in this case because, at the time of Schmidt’s and Ayers’ sentencing, the punishment available did not criminalize the conduct that gives rise to the current crimes. One thing we consider to determine whether a law is punitive is to look at the Legislature’s intent in adopting the law. State v. Ward, 123 Wn.2d 488, 499, 869 P.2d 1062 (1994). The statute at issue, RCW 9.41.040, was amended in 1994 by Engrossed Second Substitute House Bill 2319, “Violence Reduction Programs.” Laws of 1994, 1st Spec. Sess., ch 7. The “intent” section of the chapter included the following statements: “State efforts at reducing violence must include changes in criminal penalties, reducing the unlawful use of and access to firearms .... It is the immediate purpose of [this chapter] to . . . (3) increase the severity and certainty of punishment for youth and adults who commit violent acts.” Laws of 1994, 1st Spec. Sess., ch. 7, § 101. These statements indicate that one purpose of the bill was to enact punitive measures.
We have addressed the difference between regulations and punishments in Ward, 123 Wn.2d 488. Ward held it was not punishment to require convicted sex offenders, upon release, to register with their local sheriff’s office. Ward, 123 Wn.2d at 495. The present cases are distinguishable from Ward in two ways. First, in Ward, the registration requirement was a new type of alleged “punishment.” In the present cases, the prohibition against possession of firearms is not a new type of punishment. Defendants’ right to possess a firearm had already been restricted prior to the 1994 statutory amendments. Second, the State was not restricting a constitutional right in Ward. We held a convicted sex offender has no constitutional right to privacy in the information that RCW 9A.44.130 requires a sex offender to produce, because all the information can be obtained through alternative sources. Ward, 123 Wn.2d at 501-02. However, Ward does provide guidance as to how the
Although the legislative intent of the bill amending RCW 9.41.040 and the language of RCW 9.41.040 itself indicate punitive intent, Ward provides an additional set of factors to consider when determining whether a statute is regulatory or punitive. A court is to consider
“[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.”
Ward, 123 Wn.2d at 499 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)).
Application of the Ward factors indicates that prohibiting a convicted felon from possessing a firearm is punishment. The sanction is an affirmative restraint, prohibiting the exercise of a previously held constitutional right. Since 1935 the State has restricted a convicted felon’s constitutional right to bear arms. See State v. Krantz, 24 Wn.2d 350, 353-54, 164 P.2d 453 (1945). The restriction of a constitutional right is a retributive action in response to the failure of the individual to comply with the laws of the state, and the threat of losing a constitutional right is a means of deterrence. Although there are some potential regulatory purposes for restricting a convicted felon’s right to bear arms, these regulatory purposes could be achieved by other less restrictive regulatory means. The absolute prohibition against possession of any firearm is evidence of punitive intent.
Stripping an individual of the constitutional right to possess firearms as a derivative of a felony conviction is punishment. The State argued RCW 9.41.040 is not punitive because it prevents persons who are mentally ill,
Additionally, the ex post facto analysis should begin with the predicate offense. Since the clause prevents the government from increasing the quantum of punishment, it must first be determined what encompassed the initial punishment. The majority, however, begins its analysis with defendants’ subsequent criminal convictions under amended RCW 9.41.040. The majority’s analysis fails to address the question as to whether the State’s initial restriction of defendants’ constitutional right to possess firearms was punishment. The focus of our ex post facto analysis must consider the effect of the amendment in relation to the initial punishment and not the intent of the newly adopted law. As part of defendants’ punishment for their respective predicate crimes, the State restricted their constitutional right to bear arms. This initial restriction placed on defendants was part of the punishment for their crimes. However, these initial restrictions do not criminalize the conduct in these cases. The statutory amendments do.
When an individual endures consequences as a direct result of a felony conviction, those consequences are punishment. The right to bear arms is a fundamental right protected by the Washington Constitution. As part of defendants’ punishment for their respective predicate crimes, they were forbidden to possess “short firearms” and “pistols.” Application of the Ward factors indicates that restricting an individual’s right to bear arms is a punishment for a felony conviction, not a regulation. Thus, eliminating defendants’ right to possess any firearm, when their previous punishment was the prohibition only against possession of a “short firearm” or “pistol,” increases the quantum of their
Alexander, C.J., and Sanders and Chambers, JJ., concur with Johnson, J.
After modification, further reconsideration denied July 13, 2001.
