BILL REQ. #: H-0866.2
| State of Washington | 61st Legislature | 2009 Regular Session |
Read first time 01/22/09. Referred to Committee on Judiciary.
AN ACT Relating to provisions governing firearms possession by persons who have been involuntarily committed; and amending RCW 9.41.040, 9.41.047, 71.05.230, 71.05.240, 71.05.300, 71.34.730, and 71.34.740.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.41.040 and 2005 c 453 s 1 are each amended to read
as follows:
(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 or found not guilty
by reason of insanity in this state or elsewhere of any serious offense
as defined in this chapter.
(b) Unlawful possession of a firearm in the first degree is a class
B felony punishable according to chapter 9A.20 RCW.
(2)(a) 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:
(i) After having previously been convicted or found not guilty by
reason of insanity in this state or elsewhere of any felony not
specifically listed as prohibiting firearm possession under subsection
(1) of this section, 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 (RCW
26.50.060, 26.50.070, 26.50.130, or 10.99.040);
(ii) After having previously been involuntarily committed for
mental health treatment under RCW 71.05.240, 71.05.320, ((71.34.090))
71.34.740, 71.34.750, 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;
(iii) If the person is under eighteen years of age, except as
provided in RCW 9.41.042; and/or
(iv) If the person is free on bond or personal recognizance pending
trial, appeal, or sentencing for a serious offense as defined in RCW
9.41.010.
(b) Unlawful possession of a firearm in the second degree is a
class C felony punishable according to 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 an
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,
notwithstanding the pendency of any future proceedings including but
not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. 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. Where no record of the court's disposition of
the charges can be found, there shall be a rebuttable presumption that
the person was not convicted of the charge.
(4) Notwithstanding subsection (1) or (2) of this section, a person
convicted or found not guilty by reason of insanity of an offense
prohibiting the possession of a firearm under this section other than
murder, manslaughter, robbery, rape, indecent liberties, arson,
assault, kidnapping, extortion, burglary, or violations with respect to
controlled substances under RCW 69.50.401 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 or finding of not
guilty by reason of insanity. Notwithstanding any other provisions of
this section, if a person is prohibited from possession of a firearm
under subsection (1) or (2) of this section and has not previously been
convicted or found not guilty by reason of insanity of a sex offense
prohibiting firearm ownership under subsection (1) or (2) 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 or finding of not guilty by reason of
insanity was for a felony offense, after five or more consecutive years
in the community without being convicted or found not guilty by reason
of insanity 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.525; or
(ii) If the conviction or finding of not guilty by reason of
insanity was for a nonfelony offense, after three or more consecutive
years in the community without being convicted or found not guilty by
reason of insanity 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.525 and the individual has
completed all conditions of the sentence.
(5) In addition to any other penalty provided for by law, if a
person under the age of eighteen years is found by a court to have
possessed a firearm in a vehicle in violation of subsection (1) or (2)
of this section or to have committed an offense while armed with a
firearm during which offense a motor vehicle served an integral
function, the court shall notify the department of licensing within
twenty-four hours and the person's privilege to drive shall be revoked
under RCW 46.20.265.
(6) Nothing in chapter 129, Laws of 1995 shall ever be construed or
interpreted as preventing an offender from being charged and
subsequently convicted for the separate felony crimes of theft of a
firearm or possession of a stolen firearm, or both, in addition to
being charged and subsequently convicted under this section for
unlawful possession of a firearm in the first or second degree.
Notwithstanding any other law, if the offender is convicted under this
section for unlawful possession of a firearm in the first or second
degree and for the felony crimes of theft of a firearm or possession of
a stolen firearm, or both, then the offender shall serve consecutive
sentences for each of the felony crimes of conviction listed in this
subsection.
(7) Each firearm unlawfully possessed under this section shall be
a separate offense.
Sec. 2 RCW 9.41.047 and 2005 c 453 s 2 are each amended to read
as follows:
(1) At the time a person is convicted or found not guilty by reason
of insanity of an offense making the person ineligible to possess a
firearm, or at the time a person is committed by court order under RCW
71.05.240, 71.05.320, ((71.34.090)) 71.34.740, 71.34.750, or chapter
10.77 RCW for mental health treatment, the convicting or committing
court shall notify the person, orally and in writing, that the person
must immediately surrender any concealed pistol license and that the
person may not possess a firearm unless his or her right to do so is
restored by a court of record. For purposes of this section a
convicting court includes a court in which a person has been found not
guilty by reason of insanity.
The convicting or committing court ((also)) shall forward within
three judicial days after conviction or entry of the commitment order
a copy of the person's driver's license or identicard, or comparable
information, ((to the department of licensing,)) along with the date of
conviction or commitment, to the department of licensing. When a
person is committed by court order under RCW 71.05.240, 71.05.320,
71.34.740, 71.34.750, or chapter 10.77 RCW, for mental health
treatment, the committing court also shall forward, within three
judicial days after entry of the commitment order, a copy of the
person's driver's license, or comparable information, along with the
date of commitment, to the national instant criminal background check
system index, denied persons file, created by the federal Brady handgun
violence prevention act (P.L. 103-159).
(2) Upon receipt of the information provided for by subsection (1)
of this section, the department of licensing shall determine if the
convicted or committed person has a concealed pistol license. If the
person does have a concealed pistol license, the department of
licensing shall immediately notify the license-issuing authority which,
upon receipt of such notification, shall immediately revoke the
license.
(3)(a) A person who is prohibited from possessing a firearm, by
reason of having been involuntarily committed for mental health
treatment under RCW 71.05.240, 71.05.320, ((71.34.090)) 71.34.740,
71.34.750, chapter 10.77 RCW, or equivalent statutes of another
jurisdiction may, upon discharge, petition ((a)) the superior court
((of record)) to have his or her right to possess a firearm restored.
((At the time of commitment, the court shall specifically state to the
person that he or she is barred from possession of firearms.))
(b) The ((secretary of social and health services shall develop
appropriate rules to create an approval process under this subsection.
The rules must provide for the restoration of the)) petition may be
brought in the superior court that ordered the involuntary commitment
or the superior court of the county in which the petitioner resides.
(c) Except as provided in (d) of this subsection, the court shall
restore the petitioner's right to possess a firearm ((upon a showing in
a court of competent jurisdiction that the person)) if the petitioner
proves by a preponderance of the evidence that:
(i) The petitioner is no longer required to participate in ((an))
court-ordered inpatient or outpatient treatment ((program, is no longer
required to take medication to treat any));
(ii) The petitioner has successfully managed the condition related
to the commitment((, and does not));
(iii) The petitioner no longer presents a substantial danger to
himself or herself, ((others,)) or the public((. Unlawful possession
of a firearm under this subsection shall be punished as a class C
felony under chapter 9A.20 RCW.)); and
(c) A person petitioning the court under this subsection (3) shall
bear the burden of proving by a preponderance of the evidence that the
circumstances resulting in
(iv) The symptoms related to the commitment ((no longer exist and))
are not reasonably likely to recur.
(d) If a preponderance of the evidence in the record supports a
finding that the person petitioning the court has engaged in violence
and that it is more likely than not that the person will engage in
violence after his or her right to possess a firearm is restored, the
person shall bear the burden of proving by clear, cogent, and
convincing evidence that he or she does not present a substantial
danger to the safety of others.
(e) When a person's right to possess a firearm has been restored
under this subsection, the court shall forward, within three judicial
days after entry of the restoration order, notification that the
person's right to possess a firearm has been restored to the department
of licensing, the department of social and health services, and the
national instant criminal background check system index, denied persons
file.
(4) No person who has been found not guilty by reason of insanity
may petition a court for restoration of the right to possess a firearm
unless the person meets the requirements for the restoration of the
right to possess a firearm under RCW 9.41.040(4).
Sec. 3 RCW 71.05.230 and 2006 c 333 s 302 are each amended to
read as follows:
A person detained for seventy-two hour evaluation and treatment may
be detained for not more than fourteen additional days of involuntary
intensive treatment or ninety additional days of a less restrictive
alternative to involuntary intensive treatment. There shall be no fee
for filing petitions for fourteen days of involuntary intensive
treatment. A petition may only be filed if the following conditions
are met:
(1) The professional staff of the agency or facility providing
evaluation services has analyzed the person's condition and finds that
the condition is caused by mental disorder and either results in a
likelihood of serious harm, or results in the detained person being
gravely disabled and are prepared to testify those conditions are met;
and
(2) The person has been advised of the need for voluntary treatment
and the professional staff of the facility has evidence that he or she
has not in good faith volunteered; and
(3) The facility providing intensive treatment is certified to
provide such treatment by the department; and
(4) The professional staff of the agency or facility or the
designated mental health professional has filed a petition for fourteen
day involuntary detention or a ninety day less restrictive alternative
with the court. The petition must be signed either by two physicians
or by one physician and a mental health professional who have examined
the person. If involuntary detention is sought the petition shall
state facts that support the finding that such person, as a result of
mental disorder, presents a likelihood of serious harm, or is gravely
disabled and that there are no less restrictive alternatives to
detention in the best interest of such person or others. The petition
shall state specifically that less restrictive alternative treatment
was considered and specify why treatment less restrictive than
detention is not appropriate. If an involuntary less restrictive
alternative is sought, the petition shall state facts that support the
finding that such person, as a result of mental disorder, presents a
likelihood of serious harm, or is gravely disabled and shall set forth
the less restrictive alternative proposed by the facility; and
(5) A copy of the petition has been served on the detained person,
his or her attorney and his or her guardian or conservator, if any,
prior to the probable cause hearing; and
(6) The court at the time the petition was filed and before the
probable cause hearing has appointed counsel to represent such person
if no other counsel has appeared; and
(7) ((The court has ordered a fourteen day involuntary intensive
treatment or a ninety day less restrictive alternative treatment after
a probable cause hearing has been held pursuant to RCW 71.05.240)) The
petition reflects that the person was informed of the loss of firearm
rights if involuntarily committed; and
(8) At the conclusion of the initial commitment period, the
professional staff of the agency or facility or the designated mental
health professional may petition for an additional period of either
ninety days of less restrictive alternative treatment or ninety days of
involuntary intensive treatment as provided in RCW 71.05.290; and
(9) If the hospital or facility designated to provide outpatient
treatment is other than the facility providing involuntary treatment,
the outpatient facility so designated has agreed to assume such
responsibility.
Sec. 4 RCW 71.05.240 and 1997 c 112 s 19 are each amended to read
as follows:
(1) If a petition is filed for fourteen day involuntary treatment
or ninety days of less restrictive alternative treatment, the court
shall hold a probable cause hearing within seventy-two hours of the
initial detention of such person as determined in RCW 71.05.180. If
requested by the detained person or his or her attorney, the hearing
may be postponed for a period not to exceed forty-eight hours. The
hearing may also be continued subject to the conditions set forth in
RCW 71.05.210 or subject to the petitioner's showing of good cause for
a period not to exceed twenty-four hours.
(2) The court at the time of the probable cause hearing and before
an order of commitment is entered shall inform the person both orally
and in writing that the failure to make a good faith effort to seek
voluntary treatment as provided in RCW 71.05.230 will result in the
loss of his or her firearm rights if the person is subsequently
detained for involuntary treatment under this section.
(3) At the conclusion of the probable cause hearing, if the court
finds by a preponderance of the evidence that such person, as the
result of mental disorder, presents a likelihood of serious harm, or is
gravely disabled, and, after considering less restrictive alternatives
to involuntary detention and treatment, finds that no such alternatives
are in the best interests of such person or others, the court shall
order that such person be detained for involuntary treatment not to
exceed fourteen days in a facility certified to provide treatment by
the department. If the court finds that such person, as the result of
a mental disorder, presents a likelihood of serious harm, or is gravely
disabled, but that treatment in a less restrictive setting than
detention is in the best interest of such person or others, the court
shall order an appropriate less restrictive course of treatment for not
to exceed ninety days.
(4) The court shall specifically state to such person and give such
person notice in writing that if involuntary treatment beyond the
fourteen day period or beyond the ninety days of less restrictive
treatment is to be sought, such person will have the right to a full
hearing or jury trial as required by RCW 71.05.310. The court shall
also state to the person and provide written notice that the person is
barred from the possession of firearms and that the prohibition remains
in effect until a court restores his or her right to possess a firearm
under RCW 9.41.047.
Sec. 5 RCW 71.05.300 and 2008 c 213 s 8 are each amended to read
as follows:
(1) The petition for ninety day treatment shall be filed with the
clerk of the superior court at least three days before expiration of
the fourteen-day period of intensive treatment. At the time of filing
such petition, the clerk shall set a time for the person to come before
the court on the next judicial day after the day of filing unless such
appearance is waived by the person's attorney, and the clerk shall
notify the designated mental health professional. The designated
mental health professional shall immediately notify the person
detained, his or her attorney, if any, and his or her guardian or
conservator, if any, the prosecuting attorney, and the regional support
network administrator, and provide a copy of the petition to such
persons as soon as possible. The regional support network
administrator or designee may review the petition and may appear and
testify at the full hearing on the petition.
(2) At the time set for appearance the detained person shall be
brought before the court, unless such appearance has been waived and
the court shall advise him or her of his or her right to be represented
by an attorney ((and of)), his or her right to a jury trial, and his or
her loss of firearm rights if involuntarily committed. If the detained
person is not represented by an attorney, or is indigent or is
unwilling to retain an attorney, the court shall immediately appoint an
attorney to represent him or her. The court shall, if requested,
appoint a reasonably available licensed physician, psychologist, or
psychiatrist, designated by the detained person to examine and testify
on behalf of the detained person.
(3) The court may, if requested, also appoint a professional person
as defined in RCW 71.05.020 to seek less restrictive alternative
courses of treatment and to testify on behalf of the detained person.
In the case of a person with a developmental disability who has been
determined to be incompetent pursuant to RCW 10.77.086(4), then the
appointed professional person under this section shall be a
developmental disabilities professional.
(4) The court shall also set a date for a full hearing on the
petition as provided in RCW 71.05.310.
Sec. 6 RCW 71.34.730 and 1995 c 312 s 54 are each amended to read
as follows:
(1) The professional person in charge of an evaluation and
treatment facility where a minor has been admitted involuntarily for
the initial seventy-two hour treatment period under this chapter may
petition to have a minor committed to an evaluation and treatment
facility for fourteen-day diagnosis, evaluation, and treatment.
If the professional person in charge of the treatment and
evaluation facility does not petition to have the minor committed, the
parent who has custody of the minor may seek review of that decision in
court. The parent shall file notice with the court and provide a copy
of the treatment and evaluation facility's report.
(2) A petition for commitment of a minor under this section shall
be filed with the superior court in the county where the minor is
residing or being detained.
(a) A petition for a fourteen-day commitment shall be signed either
by two physicians or by one physician and a mental health professional
who have examined the minor and shall contain the following:
(i) The name and address of the petitioner;
(ii) The name of the minor alleged to meet the criteria for
fourteen-day commitment;
(iii) The name, telephone number, and address if known of every
person believed by the petitioner to be legally responsible for the
minor;
(iv) A statement that the petitioner has examined the minor and
finds that the minor's condition meets required criteria for fourteen-day commitment and the supporting facts therefor;
(v) A statement that the minor has been advised of the need for
voluntary treatment but has been unwilling or unable to consent to
necessary treatment;
(vi) A statement that the minor has been advised of the loss of
firearm rights if involuntarily committed;
(vii) A statement recommending the appropriate facility or
facilities to provide the necessary treatment; and
(((vii))) (viii) A statement concerning whether a less restrictive
alternative to inpatient treatment is in the best interests of the
minor.
(b) A copy of the petition shall be personally delivered to the
minor by the petitioner or petitioner's designee. A copy of the
petition shall be sent to the minor's attorney and the minor's parent.
Sec. 7 RCW 71.34.740 and 1985 c 354 s 8 are each amended to read
as follows:
(1) A commitment hearing shall be held within seventy-two hours of
the minor's admission, excluding Saturday, Sunday, and holidays, unless
a continuance is requested by the minor or the minor's attorney.
(2) The commitment hearing shall be conducted at the superior court
or an appropriate place at the facility in which the minor is being
detained.
(3) At the commitment hearing, the evidence in support of the
petition shall be presented by the county prosecutor.
(4) The minor shall be present at the commitment hearing unless the
minor, with the assistance of the minor's attorney, waives the right to
be present at the hearing.
(5) If the parents are opposed to the petition, they may be
represented at the hearing and shall be entitled to court-appointed
counsel if they are indigent.
(6) At the commitment hearing, the minor shall have the following
rights:
(a) To be represented by an attorney;
(b) To present evidence on his or her own behalf;
(c) To question persons testifying in support of the petition.
(7) The court at the time of the commitment hearing and before an
order of commitment is entered shall inform the minor both orally and
in writing that the failure to make a good faith effort to seek
voluntary treatment as provided in RCW 71.34.730 will result in the
loss of his or her firearm rights if the minor is subsequently detained
for involuntary treatment under this section.
(8) If the minor has received medication within twenty-four hours
of the hearing, the court shall be informed of that fact and of the
probable effects of the medication.
(((8))) (9) Rules of evidence shall not apply in fourteen-day
commitment hearings.
(((9))) (10) For a fourteen-day commitment, the court must find by
a preponderance of the evidence that:
(a) The minor has a mental disorder and presents a "likelihood of
serious harm" or is "gravely disabled";
(b) The minor is in need of evaluation and treatment of the type
provided by the inpatient evaluation and treatment facility to which
continued inpatient care is sought or is in need of less restrictive
alternative treatment found to be in the best interests of the minor;
and
(c) The minor is unwilling or unable in good faith to consent to
voluntary treatment.
(((10))) (11) If the court finds that the minor meets the criteria
for a fourteen-day commitment, the court shall either authorize
commitment of the minor for inpatient treatment or for less restrictive
alternative treatment upon such conditions as are necessary. If the
court determines that the minor does not meet the criteria for a
fourteen-day commitment, the minor shall be released.
(((11))) (12) Nothing in this section prohibits the professional
person in charge of the evaluation and treatment facility from
releasing the minor at any time, when, in the opinion of the
professional person in charge of the facility, further inpatient
treatment is no longer necessary. The release may be subject to
reasonable conditions if appropriate.
Whenever a minor is released under this section, the professional
person in charge shall within three days, notify the court in writing
of the release.
(((12))) (13) A minor who has been committed for fourteen days
shall be released at the end of that period unless a petition for one
hundred eighty-day commitment is pending before the court.