BILL REQ. #: H-0682.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/21/11. Referred to Committee on Judiciary.
AN ACT Relating to where an individual may petition to restore firearm possession rights; and amending RCW 9.41.040 and 9.41.047.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 9.41.040 and 2009 c 293 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, 71.34.740,
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)(a) 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))) (i) Under RCW 9.41.047; and/or
(((b)(i))) (ii)(A) 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))) (B) 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.
(b) An individual may petition a court of record to have his or her
right to possess a firearm restored under (a) of this subsection (4)
only at:
(i) The court of record that ordered the petitioner's prohibition
on possession of a firearm; or
(ii) The superior court in the county in which the petitioner
resides.
(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 2009 c 293 s 2 are each amended to read
as follows:
(1)(a) 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, 71.34.740, 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.
(b) The convicting or committing court 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, 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, 71.34.740, 71.34.750, chapter
10.77 RCW, or equivalent statutes of another jurisdiction may, upon
discharge, petition the superior court to have his or her right to
possess a firearm restored.
(b) The petition ((may)) must 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 if the petitioner
proves by a preponderance of the evidence that:
(i) The petitioner is no longer required to participate in court-ordered inpatient or outpatient treatment;
(ii) The petitioner has successfully managed the condition related
to the commitment;
(iii) The petitioner no longer presents a substantial danger to
himself or herself, or the public; and
(iv) The symptoms related to the commitment 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).