AN ACT Relating to firearm forfeiture; and amending RCW 9.41.010 and 9.41.098.

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

Sec. 1. Section 1, chapter 172, Laws of 1935 as last amended by section 1, chapter 232, Laws of 1983 and RCW 9.41.010 are each amended to read as follows:

(1) "Short firearm" or "pistol" as used in this chapter means any firearm with a barrel less than twelve inches in length.

(2) "Crime of violence" as used in this chapter means:

(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, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, rape in the second degree, kidnapping in the second degree, arson in the second degree, assault in the second degree, extortion in the first degree, burglary in the second degree, and robbery in the second degree;

(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, which is comparable to a felony classified as a crime of violence in subsection (2) (a) of this section; and

(c) Any federal or out-of-state conviction for an offense comparable to a felony classified as a crime of violence under subsection (2) (a) or (b) of this section.

(3) "Firearm" as used in this chapter means a weapon or device from which a projectile may be fired by an explosive such as gunpowder.

(4) "Commercial seller" as used in this chapter means a person who has a federal firearms license.

(5) "Antique firearms" as used in this chapter means any firearm manufactured on or before 1918.

Sec. 2. Section 2, chapter 223, Laws of 1988 as amended by section 8, chapter 222, Laws of 1989 and RCW 9.41.098 are each amended to read as follows:

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:

(a) Found concealed on a person not authorized by RCW 9.41.060 or 9.41.070 to carry a concealed pistol: PROVIDED, That it is an absolute defense to forfeiture if the person possessed a valid Washington concealed pistol license within the preceding two years and has not become ineligible for a concealed pistol license in the interim. Before the firearm may be returned, the person must pay the past due renewal fee and the current renewal fee;

(b) Commercially sold to any person without an application as required by RCW 9.41.090;

(c) Found in the possession or under the control of a person at the time the person committed or was arrested for committing a crime of violence or a crime in which a firearm was used or displayed or a felony violation of the uniform controlled substances act, chapter 69.50 RCW;

(d) Found concealed on a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, having 0.10 grams or more of alcohol per two hundred ten liters of breath or 0.10 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's breath, blood, or other bodily substance;

(e) Found in the possession of a person prohibited from possessing the firearm under RCW 9.41.040;

(f) Found in the possession of a person free on bail or personal recognizance pending trial, appeal, or sentencing for a crime of violence or a crime in which a firearm was used or displayed, except that violations of Title 77 RCW shall not result in forfeiture under this section;

(g) Found in the possession of a person found to have been mentally incompetent while in possession of a firearm when apprehended or who is thereafter committed pursuant to chapter 10.77 or 71.05 RCW;

(h) Known to have been used or displayed by a person in the violation of a proper written order of a court of general jurisdiction; or

(i) Known to have been used in the commission of a crime of violence or a crime in which a firearm was used or displayed or a felony violation of the uniformed controlled substances act, chapter 69.50 RCW.

(2) Upon any violation under subsection (1) of this section, a proceeding for forfeiture of a firearm shall be deemed commenced by the seizure of the firearm by a law enforcement agency. The law enforcement agency under whose authority the seizure was made shall, within fifteen days following the seizure, file with the court and serve on the owner of the firearm and on any person having any known right or interest therein, notice of the seizure and intended forfeiture of the firearm. The notice shall state: (a) The date of seizure, (b) that the person receiving notice may, within forty-five days after the seizure, claim that the firearm should be returned to him or her as provided in subsection (3) of this section by petitioning the court for a hearing, and (c) that an order of forfeiture may be entered by the court authorizing disposition of the firearm in accordance with this section if a petition is not filed in a timely manner. The notice may be served by any method authorized by law or court rule, including service by any form of mail requiring a return receipt. A hearing before the court shall be scheduled if any person petitions the court claiming that the firearm should be returned to him or her pursuant to subsection (3) of this section. If no person petitions the court in a timely manner, the firearm shall be deemed forfeited.

(3) Upon order of forfeiture, the court in its discretion shall order destruction of any firearm that is illegal for any person to possess. All firearms legal for citizen possession that are judicially forfeited or forfeited due to failure to make a claim under RCW 63.32.010, 63.40.010, or 63.35.020 ((~~shall~~)) may be destroyed or submitted for auction to commercial sellers once a year if the submitting agency has accumulated at least ten firearms authorized for sale. If a city, county or other political subdivision of the state chooses to destroy such firearms the city, county or other political subdivision of the state shall enact an ordinance or resolution providing for the destruction of the firearms. Antique firearms are exempted from destruction. Law enforcement agencies may conduct joint auctions for the purpose of maximizing efficiency. A maximum of ten percent of such firearms may be retained for use by local law enforcement agencies and the Washington state patrol. Before submission for auction or destruction, a court may temporarily retain forfeited firearms if needed for evidence.

(a) The proceeds from any sale shall be divided as follows: ((The local jurisdiction and the Washington state patrol shall retain its costs, including actual costs of storage and sale, and shall forward the remainder to the state department of wildlife for use in its firearms training program pursuant to RCW 77.32.155.))

(i) The agency submitting the surplus firearms for sale may retain sixty percent of the total proceeds from the sale of the firearms, to be used for law enforcement purposes only. Forty percent of the total proceeds shall go to the firearms range account. All costs incurred in selling the surplus firearms shall be paid from the portion retained by the law enforcement agency;

(ii) In lieu of selling surplus firearms at auction a law enforcement agency may trade the surplus firearms to a licensed dealer in exchange for departmental service weapons or other firearms or police equipment, to be used for law enforcement purposes by the agency. When surplus firearms are exchanged for the described equipment, the agency shall retain all of the proceeds.

(b) If a firearm is delivered to a law enforcement agency and the agency no longer requires use of the firearm, the agency shall dispose of the firearm ((~~by auction~~)) as provided by this subsection. The public auctioning agency shall, as a minimum, maintain a record of all forfeited firearms by manufacturer, model, caliber, serial number, date and circumstances of forfeiture, and final disposition. The records shall be open to public inspection and copying.

((~~(3)~~)) (4) The court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed or the firearm was stolen from the owner or the owner neither had knowledge of nor consented to the act or omission involving the firearm which resulted in its forfeiture.

((~~(4)~~)) (5) A law enforcement officer of the state or of any county or municipality may confiscate a firearm found to be in the possession of a person under circumstances specified in subsection (1) of this section. After confiscation, the firearm shall not be surrendered except: (a) To the prosecuting attorney for use in subsequent legal proceedings; (b) for disposition according to an order of a court having jurisdiction as provided in subsection (1) of this section; or (c) to the owner if the proceedings are dismissed or as directed in subsection ((~~(3)~~)) (4) of this section.