Washington State House of Representatives Office of Program Research	BILL ANALYSIS
Judiciary

HB 1148

Title:  An act relating to unwitting possession of a firearm.

Brief Description:  Establishing unwitting possession of a firearm as an affirmative defense.

Sponsors:  Representatives Lantz (co-prime sponsor), Carrell (co-prime sponsor), O'Brien, Lovick, Ballasiotes, McDermott and Esser.

Brief Summary of Bill

$Explicitly removes knowledge as an element that the prosecution must prove in a case of unlawful possession of a firearm.

$Explicitly allows a defense of "unwitting possession" of a firearm, which the defendant must prove by a preponderance of the evidence.

Hearing Date:  1/26/01

Staff:  Bill Perry (786‑7123).

Background: 

The statutes defining many crimes contain explicit "state of mind" elements.  States of mind in the criminal code include "intent," "knowledge," "recklessness," and "criminal negligence."  A state of mind requirement in a crime, like any other element of the crime, must be proved by the prosecutor beyond a reasonable doubt.  For instance, the definition of first-degree assault includes as an element that the defendant acted "with intent."  Therefore, to obtain a conviction in a case of first-degree assault, the prosecution must prove, among other things, that the defendant intended to inflict great bodily harm on the victim.

Some crimes do not include an explicit state of mind element.  For instance, the crime of unlawful possession of a firearm does not.  The statute simply says that a person who is disqualified from possessing a firearm is guilty of the crime if he or she "has in his or her possession" a firearm.  The statute does not say that the defendant must "knowingly" possess the firearm to commit the crime.  The statute is silent on the issue of the defendant's state of mind.

In a recent decision, State v. Anderson, the state supreme court considered a charge of unlawful possession of a firearm in a case in which the defendant claimed that he didn't know the firearm was under the seat of the car he was driving.  The court held that the unlawful possession of a firearm statute must be construed to include an implicit knowledge requirement.  That is, in order to convict a person of the crime, the prosecution must prove beyond a reasonable doubt that the defendant knew that he or she possessed the firearm.

In reaching its decision, the majority in Anderson applied an eight-part test to determine whether a state of mind element should be included in the crime.  The factors considered include:

$the background of common law history on state of mind requirements;

$whether the crime was considered a "public welfare offense" by the Legislature;

$whether a lack of state of mind requirement would lead to prosecution of "entirely innocent conduct;"

$the level of harshness of the penalty for conviction;

$the seriousness of the harm done to the public by the offense;

$the relative difficulty for a defendant to ascertain the "true facts;"

$whether the Legislature intended to relieve the prosecution of the burden of a difficult proof, even at the cost of convicting "innocent minded and blameless people;"

$how many prosecutions are to be expected.

The dissent in Anderson argued that the clear intent of the Legislature was not to have a knowledge requirement and to allow, instead, for an affirmative defense in which the defendant bears the burden of showing by a preponderance of the evidence that he or she did not know of the firearm.

Summary of Bill: 

Knowledge is explicitly not an element of the crime of unlawful possession of a firearm in the first or second degree.  An affirmative defense of unwitting possession of a firearm is explicitly provided.  A defendant must show by a preponderance of the evidence that his or her possession was unwitting in order to prevail on that defense.

Effective Date:  Ninety days after adjournment of session in which bill is passed.

Appropriation:  None.

Fiscal Note:  Not Requested.