SHB 1840 -
By Representative Shea
ADOPTED 02/12/2014
Strike everything after the enacting clause and insert the following:
"Sec. 1 RCW 9.41.040 and 2011 c 193 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) During any period of time that the person is subject to a
court order issued under chapter 7.90, 7.92, 9A.46, 10.14, 10.99,
26.09, 26.10, 26.26, or 26.50 RCW that:
(A) Was issued after a hearing of which the person received actual
notice, and at which the person had an opportunity to participate;
(B) Restrains the person from harassing, stalking, or threatening
an intimate partner of the person or child of the intimate partner or
person, or engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or child;
and
(C)(I) Includes a finding that the person represents a credible
threat to the physical safety of the intimate partner or child; and
(II) By its terms, explicitly prohibits the use, attempted use, or
threatened use of physical force against the intimate partner or child
that would reasonably be expected to cause bodily injury;
(iii) 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))) (iv) If the person is under eighteen years of age, except
as provided in RCW 9.41.042; and/or
(((iv))) (v) 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-fact-
finding 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:
(i) Under RCW 9.41.047; and/or
(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
(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.
(8) For purposes of this section, "intimate partner" includes: A
spouse, a domestic partner, a former spouse, a former domestic partner,
a person with whom the restrained person has a child in common, or a
person with whom the restrained person has cohabitated or is
cohabitating as part of a dating relationship.
Sec. 2 RCW 9.41.800 and 2013 c 84 s 25 are each amended to read
as follows:
(1) Any court when entering an order authorized under chapter 7.92
RCW, RCW 7.90.090, 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 shall, upon a showing by clear and convincing
evidence, that a party has: Used, displayed, or threatened to use a
firearm or other dangerous weapon in a felony, or previously committed
any offense that makes him or her ineligible to possess a firearm under
the provisions of RCW 9.41.040:
(a) Require the party to surrender any firearm or other dangerous
weapon;
(b) Require the party to surrender any concealed pistol license
issued under RCW 9.41.070;
(c) Prohibit the party from obtaining or possessing a firearm or
other dangerous weapon;
(d) Prohibit the party from obtaining or possessing a concealed
pistol license.
(2) Any court when entering an order authorized under chapter 7.92
RCW, RCW 7.90.090, 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 may, upon a showing by a preponderance of the
evidence but not by clear and convincing evidence, that a party has:
Used, displayed, or threatened to use a firearm or other dangerous
weapon in a felony, or previously committed any offense that makes him
or her ineligible to possess a ((pistol)) firearm under the provisions
of RCW 9.41.040:
(a) Require the party to surrender any firearm or other dangerous
weapon;
(b) Require the party to surrender a concealed pistol license
issued under RCW 9.41.070;
(c) Prohibit the party from obtaining or possessing a firearm or
other dangerous weapon;
(d) Prohibit the party from obtaining or possessing a concealed
pistol license.
(3) During any period of time that the person is subject to a court
order issued under chapter 7.90, 7.92, 9A.46, 10.14, 10.99, 26.09,
26.10, 26.26, or 26.50 RCW that:
(a) Was issued after a hearing of which the person received actual
notice, and at which the person had an opportunity to participate;
(b) Restrains the person from harassing, stalking, or threatening
an intimate partner of the person or child of the intimate partner or
person, or engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or child;
and
(c)(i) Includes a finding that the person represents a credible
threat to the physical safety of the intimate partner or child; and
(ii) By its terms, explicitly prohibits the use, attempted use, or
threatened use of physical force against the intimate partner or child
that would reasonably be expected to cause bodily injury, the court
shall:
(A) Require the party to surrender any firearm or other dangerous
weapon;
(B) Require the party to surrender a concealed pistol license
issued under RCW 9.41.070;
(C) Prohibit the party from obtaining or possessing a firearm or
other dangerous weapon; and
(D) Prohibit the party from obtaining or possessing a concealed
pistol license.
(4) The court may order temporary surrender of a firearm or other
dangerous weapon without notice to the other party if it finds, on the
basis of the moving affidavit or other evidence, that irreparable
injury could result if an order is not issued until the time for
response has elapsed.
(((4))) (5) In addition to the provisions of subsections (1), (2),
and (((3))) (4) of this section, the court may enter an order requiring
a party to comply with the provisions in subsection (1) of this section
if it finds that the possession of a firearm or other dangerous weapon
by any party presents a serious and imminent threat to public health or
safety, or to the health or safety of any individual.
(((5))) (6) The requirements of subsections (1), (2), and (((4)))
(5) of this section may be for a period of time less than the duration
of the order.
(((6))) (7) The court may require the party to surrender any
firearm or other dangerous weapon in his or her immediate possession or
control or subject to his or her immediate possession or control to the
sheriff of the county having jurisdiction of the proceeding, the chief
of police of the municipality having jurisdiction, or to the restrained
or enjoined party's counsel or to any person designated by the court.
NEW SECTION. Sec. 3 A new section is added to chapter 9.41 RCW
to read as follows:
All law enforcement agencies must develop policies and procedures
by January 1, 2015, regarding the acceptance, storage, and return of
weapons required to be surrendered under RCW 9.41.800.
NEW SECTION. Sec. 4 A new section is added to chapter 9.41 RCW
to read as follows:
By December 1, 2014, the administrative office of the courts shall
develop a proof of surrender and receipt pattern form to be used to
document that a respondent has complied with a requirement to surrender
firearms, dangerous weapons, and his or her concealed pistol license,
as ordered by a court under RCW 9.41.800. The administrative office of
the courts must also develop a declaration of nonsurrender pattern form
to document compliance when the respondent has no firearms, dangerous
weapons, or concealed pistol license.
NEW SECTION. Sec. 5 A new section is added to chapter 9.41 RCW
to read as follows:
A party ordered to surrender firearms, dangerous weapons, and his
or her concealed pistol license under RCW 9.41.800 must file with the
clerk of the court a proof of surrender and receipt form or a
declaration of nonsurrender form within five judicial days of the entry
of the order.
NEW SECTION. Sec. 6 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 7 Section 5 of this act takes effect December
1, 2014."
Correct the title.
EFFECT: The amendment makes the following changes:
(1) Applies the provisions of the bill to stalking protection
orders and stalking no-contact orders.
(2) Modifies language in the bill to conform with the language in
similar provisions of federal law.
(3) Requires that, to apply the restrictions under the bill, an
order must contain both a finding that the person represents a credible
threat and terms prohibiting the restrained person from threatening or
using physical force (rather than either such finding or terms).
(4) Makes technical changes to update expired dates and to replace
a statute in an amendatory section that was amended by 2013
legislation.