BP BHEAD INT H [atlas:bill]

AN ACT Relating to establishing qualifications to reckless endangerment involving certain weapons; amending RCW 9A.36.050; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) Parents of minors, and other persons who supervise or care for minors, have a duty to protect such minors. That duty is at its greatest when minors are very young, and the extent and nature of the duty changes as minors mature. As minors mature, they have an increasing duty to take responsibility for their own actions.

(2) The law has long recognized that minors below a certain age cannot be held criminally liable for their actions, but the law has also provided that as minors mature they become increasingly subject to such liability. Specifically, under RCW 9A.04.050:

(a) Minors under the age of eight are incapable of committing crimes;

(b) Minors ages eight through eleven are presumed to be incapable of committing crimes, but this presumption may be overcome by proof that a minor has sufficient capacity to understand his or her actions and to know if those actions are wrong; and

(3) In the pursuit of justice it is essential that the duty of parents, and the maturity and capacity of minors, be appropriately evaluated and weighed in making decisions regarding criminal culpability.

(4) It is the intent of the legislature that in criminal matters arising under RCW 9A.36.050, careful consideration should be given to the following:

(a) The responsibilities of persons with a duty to supervise or care for any minor involved, such as the minor's parent, and the age and maturity of any minor involved. To the extent a minor lacks the maturity to take responsibility for his or her own actions, a person with a duty to supervise or care for the minor ought to bear a greater degree of responsibility for the actions of the minor. Conversely, to the extent a minor is mature enough to take responsibility and to be tried for a crime, a person with a duty to supervise or care for the minor ought to bear a lesser degree of responsibility for the actions of the minor;

(b) Maintaining a reasonable balance between an individual's constitutional right to self-protection and the individual's corresponding obligation to exercise that right in a responsible manner;

(c) Promoting public safety, maintaining public confidence in the criminal justice system, and upholding the right of victims and their families to see justice done. Where criminal conduct results in death or serious injury, prosecutors should clearly and concisely justify a decision not to prosecute in a particular case.

Sec. 2. RCW 9A.36.050 and 1997 c 338 s 45 are each amended to read as follows:

(1) A person is guilty of reckless endangerment when he or she recklessly:

(a) Engages in conduct ((~~not amounting to drive-by shooting but~~)) that creates a substantial risk of death or serious physical injury to another person; or

(b) Fails to engage in conduct and the failure creates a substantial risk of death or serious physical injury to another person.

(2) For purposes of this section, a person recklessly engages in conduct or recklessly fails to engage in conduct when he or she knows of and disregards a substantial risk that death or serious physical injury to another person may occur and his or her disregard of such substantial risk through commission or omission is a gross deviation from what a reasonable person would do or would not do in the same situation.

(3) Reckless endangerment is a gross misdemeanor.

(4) If a charge of reckless endangerment is considered or brought under this section because a person stored or left a loaded firearm in a location where the person knew, or reasonably should have known, that a minor or mentally incompetent person was likely to gain access to the loaded firearm, whether or not a minor or mentally incompetent person actually obtained possession of the loaded firearm, subsections (5) through (12) of this section apply.

(5) It is not reckless endangerment under the circumstances described in subsection (4) of this section if:

(a) The minor or mentally incompetent person had access to the loaded firearm under the supervision of an adult; or

(b) The minor or mentally incompetent person had access to the loaded firearm as a result of an unlawful entry by any person; or

(c) The minor or mentally incompetent person had access to the loaded firearm as a result of an unlawful taking of the loaded firearm by any person; or

(d) The person alleged to have committed the offense had taken reasonable measures to prevent a minor or mentally incompetent person from gaining access to the loaded firearm, including but not limited to, securing the loaded firearm in a locked box, safe, or other locked storage space, or securing the loaded firearm with a lock or device that prevents the loaded firearm from discharging; or

(e) The minor had access to the loaded firearm in accordance with RCW 9.41.042.

(6)(a) In a prosecution for reckless endangerment under the circumstances described in subsection (4) of this section, it is an absolute defense if the defendant shows that the minor who had access to the loaded firearm knew that the possession of the loaded firearm could create a substantial risk of death or serious physical injury and that it would be wrong to create such a risk.

(b) This defense does not apply if:

(i) The defendant knew, or reasonably should have known:

(A) The minor was a person under the age of twelve; or

(B) The minor had previously been arrested or convicted for criminal behavior or had a criminal record; or

(C) The minor had a history of mental or psychological problems or had previously been committed or treated for mental or psychological problems; or

(D) The minor had been suspended or expelled from school based on violent acts or threats of violent acts by the minor; and

(ii) The defendant knew the minor had access to the loaded firearm.

(7)(a) The following mitigating factors must be considered in any decision regarding the sentencing of a person for reckless endangerment under the circumstances described in subsection (4) of this section:

(i) The minor who had access to the loaded firearm previously had been educated regarding the use, handling, and dangers of the loaded firearm;

(ii) The minor who had access to the loaded firearm had completed a hunter's or firearms safety course;

(iii) The minor or mentally incompetent person who had access to the loaded firearm did not actually take possession of the loaded firearm;

(iv) The minor or mentally incompetent person who took possession of the loaded firearm did so without the permission and against the direction of the person who had care and custody of the loaded firearm;

(v) If the minor or mentally incompetent person took possession of the loaded firearm, the minor or mentally incompetent person did not intend to discharge the loaded firearm and the loaded firearm was not discharged;

(vi) If the minor or mentally incompetent person took possession of the loaded firearm and the loaded firearm was discharged, the minor or mentally incompetent person did not intend for any person to be injured or property to be damaged and no person was injured or property was damaged;

(vii) The crime rate within the community and the impact of crime on the area was sufficient to cause a reasonable person to take precautions for his or her personal safety or the safety of his or her family;

(viii) The defendant, or another person who resides with the defendant, previously had been a victim of a crime of assault, kidnapping, criminal mistreatment, rape, harassment, arson, burglary, robbery, incest, or any other crime pertaining to domestic violence, or any anticipatory offense pertaining to such crimes under the laws of this state or another state;

(ix) The defendant, or another person who resides with the defendant, previously had obtained a valid protection order issued by a court of this state or another state, including an injunction or other order related to domestic or family violence, harassment, sexual abuse, or stalking, for the purpose of preventing violent or threatening acts or harassment against or contact or communication with or physical proximity to another person;

(x) The minor or mentally incompetent person had access to the loaded firearm during a time of greater exposure to risk of personal safety, such as between the hours of dusk and dawn; and

(xi) The loaded firearm was the only loaded firearm in the vicinity, or was one of only a few loaded firearms in the vicinity, reasonably necessary to provide self-defense.

(b) Mitigating factors other than those listed in this subsection may be considered before making any decision regarding sentencing of a person for reckless endangerment under the circumstances described in subsection (4) of this section.

(8) If a death or serious injury occurs as a result of a violation of this section under the circumstances described in subsection (4) of this section, and the prosecuting attorney decides not to file charges, the prosecuting attorney shall issue written findings supporting the decision, and those findings are a public record.

(9) A violation of this section under the circumstances described in subsection (4) of this section is not a disqualifying domestic violence misdemeanor conviction under RCW 9.41.040(1)(b)(i).

(10)(a) The definitions in RCW 9.41.010 apply to this section unless the context clearly requires otherwise.

(b) "Minor" means a person under eighteen years of age unless the context clearly requires otherwise.

(c) "Mentally incompetent person" means a person who does not possess sufficient mind or reason to enable the person to comprehend the nature, terms, and effect of the particular act in which the person is engaged.

(11) Nothing in this section mandates how or where a firearm must be stored.

(12) Nothing in this section is intended or may be construed to limit a person's constitutional right to self-protection under the Second Amendment to the United States Constitution or Article I, section 24 of the Washington state Constitution.