BILL REQ. #:  S-1771.3 

READ FIRST TIME 02/27/07.   

     AN ACT Relating to clarifying the process for restoration of the right to possess firearms; amending RCW 9.41.040, 9.41.047, 9.41.070, and 46.20.265; and adding a new section to chapter 9.41 RCW.

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 71.05.320, ((71.34.090)) 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))) (5) 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))) (6) 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 71.05.320, ((71.34.090)) 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 pursuant to subsection (6) of this section. 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 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.
     (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 71.05.320, ((71.34.090)) 71.34.750, chapter 10.77 RCW, or equivalent statutes of another jurisdiction may, upon discharge, petition a court of record to have his or her right to possess a firearm restored pursuant to subsection (6) of this section. 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 right to possess a firearm upon a showing in a court of competent jurisdiction that the person is no longer required to participate in an inpatient or outpatient treatment program, is no longer required to take medication to treat any condition related to the commitment, and does not present 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.
     (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 the commitment no longer exist and are not reasonably likely to recur. 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.
     (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))) subsection (5) of this section.
     (5) Notwithstanding RCW 9.41.040 (1) or (2), a person convicted or found not guilty by reason of insanity of an offense prohibiting the possession of a firearm under RCW 9.41.040 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 RCW 9.41.040, if a person is prohibited from possession of a firearm under RCW 9.41.040 (1) or (2) and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under RCW 9.41.040 (1) or (2) 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 pursuant to subsection (6) of this section to have his or her right to possess a firearm restored:
     (a) Under this section; 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 and the individual has completed all conditions of the sentence; 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.
     (6)(a) A petition to have the right to possess a firearm restored must be filed as a civil suit in the superior court of the county where the conviction occurred and judgment was entered, or where the finding of not guilty by reason of insanity was entered. If the person has disqualifying convictions from more than one county, a separate petition must be filed in each county. If the person has disqualifying convictions from another state, or a finding of not guilty by reason of insanity from another state, a petition must be filed in Thurston county superior court.
     (b) Within ninety days of receipt of the master copy from the administrative office of the courts, all court clerk's offices shall make available the model forms and instructional brochures required by section 5 of this act. Any assistance or information provided by clerks under this section does not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition.
     (c) A petition shall be granted if the person meets all requirements of this section for restoration of the right to possess a firearm and the petition:
     (i) Was served on the prosecuting attorney's office or the city attorney's office that prosecuted the crime or crimes for which relief is sought or on the attorney general for the state of Washington, if the petitioner has disqualifying convictions from another state. Service may be accomplished by mailing a copy of the petition no later than ten days before any scheduled hearing. Failure to serve a copy of the petition upon the proper prosecuting attorney's office, city attorney's office, or attorney general will result in a void order;
     (ii) Included a statement, under oath, setting out the person's criminal history and the date the person was last released from prison or jail; and
     (iii) Was accompanied by one of the following documents for each disqualifying conviction:
     (A) A certificate of discharge issued pursuant to RCW 9.94A.637 or an equivalent out-of-state statute;
     (B) A certificate of discharge issued pursuant to RCW 9.96.050 or an equivalent out-of-state statute;
     (C) A copy of the person's case financial history screen from the superior court clerk which provides whether the person has met the required legal financial obligations;
     (D) A declaration from the appropriate parole or probation office stating that the office's records demonstrate that the person has completed all conditions of the sentence; or
     (E) A declaration from the city, county, or state prosecuting attorney whose office was responsible for the proceeding against the person which resulted in a disqualifying conviction that states that the city, county, or state prosecuting attorney's office files indicate that the person has satisfied all of the conditions of the sentence that were imposed as a result of the disqualifying conviction.
     (d) In cases where the person has disqualifying convictions in more than one county or from another state or the federal government, a court may only issue an order indicating that the disqualification arising from the convictions for offenses committed within that county is hereby removed, unless the person presents orders demonstrating that the disqualification arising from the convictions for all offenses committed outside the county has been removed. In such a case, the court may issue an order restoring the person's right to possess a firearm.
     (e) The clerk of the court in which an order granting a petition restoring a person's right to possess a firearm within the state of Washington is entered shall immediately transmit information regarding the order restoring the right to possess a firearm to the Washington state patrol identification section and the department of licensing. The Washington state patrol and the department of licensing shall immediately update their records to reflect the entry of the order restoring the person's right to possess a firearm.
     (f) Any order restoring the right to possess a firearm shall contain a warning substantially as follows:

CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. An order restoring your right to possess a firearm in Washington is not a defense to a federal prosecution or to a prosecution under the laws of another state.

Sec. 3   RCW 9.41.070 and 2002 c 302 s 703 are each amended to read as follows:
     (1) The chief of police of a municipality or the sheriff of a county shall within thirty days after the filing of an application of any person, issue a license to such person to carry a pistol concealed on his or her person within this state for five years from date of issue, for the purposes of protection or while engaged in business, sport, or while traveling. However, if the applicant does not have a valid permanent Washington driver's license or Washington state identification card or has not been a resident of the state for the previous consecutive ninety days, the issuing authority shall have up to sixty days after the filing of the application to issue a license. The issuing authority shall not refuse to accept completed applications for concealed pistol licenses during regular business hours.
     The applicant's constitutional right to bear arms shall not be denied, unless:
     (a) He or she is ineligible to possess a firearm under the provisions of RCW 9.41.040 or 9.41.045;
     (b) The applicant's concealed pistol license is in a revoked status;
     (c) He or she is under twenty-one years of age;
     (d) He or she is subject to a court order or injunction regarding firearms pursuant to RCW 9A.46.080, 10.14.080, 10.99.040, 10.99.045, 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, 26.50.070, or 26.26.590;
     (e) He or she is free on bond or personal recognizance pending trial, appeal, or sentencing for a felony offense;
     (f) He or she has an outstanding warrant for his or her arrest from any court of competent jurisdiction for a felony or misdemeanor; or
     (g) He or she has been ordered to forfeit a firearm under RCW 9.41.098(1)(e) within one year before filing an application to carry a pistol concealed on his or her person.
     No person convicted of a felony may have his or her right to possess firearms restored or his or her privilege to carry a concealed pistol restored, unless the person has been granted relief from disabilities by the secretary of the treasury under 18 U.S.C. Sec. 925(c), or RCW ((9.41.040 (3) or (4))) 9.41.047 applies.
     (2) The issuing authority shall check with the national crime information center, the Washington state patrol electronic data base, the department of social and health services electronic data base, and with other agencies or resources as appropriate, to determine whether the applicant is ineligible under RCW 9.41.040 or 9.41.045 to possess a firearm and therefore ineligible for a concealed pistol license. This subsection applies whether the applicant is applying for a new concealed pistol license or to renew a concealed pistol license.
     (3) Any person whose firearms rights have been restricted and who has been granted relief from disabilities by the secretary of the treasury under 18 U.S.C. Sec. 925(c) or who is exempt under 18 U.S.C. Sec. 921(a)(20)(A) shall have his or her right to acquire, receive, transfer, ship, transport, carry, and possess firearms in accordance with Washington state law restored except as otherwise prohibited by this chapter.
     (4) The license application shall bear the full name, residential address, telephone number at the option of the applicant, date and place of birth, race, gender, description, not more than two complete sets of fingerprints, and signature of the licensee, and the licensee's driver's license number or state identification card number if used for identification in applying for the license. A signed application for a concealed pistol license shall constitute a waiver of confidentiality and written request that the department of social and health services, mental health institutions, and other health care facilities release information relevant to the applicant's eligibility for a concealed pistol license to an inquiring court or law enforcement agency.
     The application for an original license shall include two complete sets of fingerprints to be forwarded to the Washington state patrol.
     The license and application shall contain a warning substantially as follows:

CAUTION: Although state and local laws do not differ, federal law and state law on the possession of firearms differ. If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court. A state license is not a defense to a federal prosecution.

Sec. 4   RCW 46.20.265 and 2005 c 288 s 2 are each amended to read as follows:
     (1) In addition to any other authority to revoke driving privileges under this chapter, the department shall revoke all driving privileges of a juvenile when the department receives notice from a court pursuant to RCW 9.41.040(((5))) (4), 13.40.265, 66.44.365, 69.41.065, 69.50.420, 69.52.070, or a substantially similar municipal ordinance adopted by a local legislative authority, or from a diversion unit pursuant to RCW 13.40.265.
     (2) The driving privileges of the juvenile revoked under subsection (1) of this section shall be revoked in the following manner:
     (a) Upon receipt of the first notice, the department shall impose a revocation for one year, or until the juvenile reaches seventeen years of age, whichever is longer.
     (b) Upon receipt of a second or subsequent notice, the department shall impose a revocation for two years or until the juvenile reaches eighteen years of age, whichever is longer.
     (c) Each offense for which the department receives notice shall result in a separate period of revocation. All periods of revocation imposed under this section that could otherwise overlap shall run consecutively up to the juvenile's twenty-first birthday, and no period of revocation imposed under this section shall begin before the expiration of all other periods of revocation imposed under this section or other law. Periods of revocation imposed consecutively under this section shall not extend beyond the juvenile's twenty-first birthday.
     (3)(a) If the department receives notice from a court that the juvenile's privilege to drive should be reinstated, the department shall immediately reinstate any driving privileges that have been revoked under this section if the minimum term of revocation as specified in RCW 13.40.265(1)(c), 66.44.365(3), 69.41.065(3), 69.50.420(3), 69.52.070(3), or similar ordinance has expired, and subject to subsection (2)(c) of this section.
     (b) The juvenile may seek reinstatement of his or her driving privileges from the department when the juvenile reaches the age of twenty-one. A notice from the court reinstating the juvenile's driving privilege shall not be required if reinstatement is pursuant to this subsection.
     (4)(a) If the department receives notice pursuant to RCW 13.40.265(2)(b) from a diversion unit that a juvenile has completed a diversion agreement for which the juvenile's driving privileges were revoked, the department shall reinstate any driving privileges revoked under this section as provided in (b) of this subsection, subject to subsection (2)(c) of this section.
     (b) If the diversion agreement was for the juvenile's first violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW, the department shall not reinstate the juvenile's privilege to drive until the later of ninety days after the date the juvenile turns sixteen or ninety days after the juvenile entered into a diversion agreement for the offense. If the diversion agreement was for the juvenile's second or subsequent violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW, the department shall not reinstate the juvenile's privilege to drive until the later of the date the juvenile turns seventeen or one year after the juvenile entered into the second or subsequent diversion agreement.

NEW SECTION.  Sec. 5   A new section is added to chapter 9.41 RCW to read as follows:
     The administrative office of the courts shall develop and prepare, in consultation with interested persons, model forms and instructional brochures required under section 2 of this act.