State v. Jorgenson

312 P.3d 960, 179 Wash. 2d 145
Washington Supreme Court·Decided November 21, 2013·No. No. 87448-4·Published·Cited by 43 cases

Opinions

González, J.

¶1 Washington law prohibits firearms possession by someone released on bond after a judge has found probable cause to believe that person has committed a serious offense. RCW 9.41.040(2)(a)(iv). Roy Jorgenson was released on bond after a trial court judge found probable cause to believe he had shot someone. He was [149] arrested with a handgun and an AR-15 rifle. Jorgenson was not at home at the time, nor is there any evidence that he was defending himself. He was convicted of violating RCW 9.41.040(2)(a)(iv).

¶2 Jorgenson claims that RCW 9.41.040(2)(a)(iv) violates his rights to bear arms under the federal and state constitutions. We defer to the legislature’s conclusion that when a trial judge finds probable cause to believe a defendant committed a serious offense, public safety justifies temporarily limiting that person’s right to possess arms. We hold that the statute is constitutional as applied to Jorgenson and affirm his conviction.

I. FACTS AND PROCEDURAL HISTORY

¶3 The State charged Jorgenson with assault in the first degree for shooting another man. On June 6, 2008, a Cowlitz County Superior Court judge found probable cause to believe Jorgenson had committed the crime. See CrR 2.2(a), 3.2.1. Jorgenson posted bond and was released from jail with no specified release conditions.

¶4 At a pretrial hearing on August 5, 2008, the prosecutor requested a specific release condition barring possession of firearms but the judge declined to impose the condition. At another pretrial hearing on October 14, 2008, while Jorgenson was present, the prosecutor advised the court that RCW 9.41.040(2)(a)(iv) forbade Jorgenson from possessing a firearm while his case was pending. The court declined to directly advise Jorgenson of the prohibition, relying on defense counsel’s assurance that he would “take care of it.” Clerk’s Papers at 30.

¶5 On November 25, 2008, police officers responded to a 911 call reporting a gunshot and found Jorgenson standing outside his car. Jorgenson admitted he had a rifle and a handgun in the car, and the officers could see the rifle in plain view. The officers knew of Jorgenson’s pending trial for first degree assault and arrested him for second degree [150] unlawful possession of a firearm. On a later search pursuant to a warrant, officers found a 9 mm Tokarev handgun and an Olympic Arms AR-15 rifle inside Jorgenson’s car.

¶6 Jorgenson was charged with two counts of second degree unlawful possession of a firearm under RCW 9.41-.040(2)(a)(iv).1 The trial court denied Jorgenson’s motion to dismiss on grounds of due process, equal protection, and the state and federal constitutional rights to possess firearms. Jorgenson was convicted on both counts by stipulation of facts.

¶7 Jorgenson appealed his convictions, arguing that RCW 9.41.040 violates the United States Constitution and the Washington Constitution. Chief Justice Worswick of the Court of Appeals certified the case to this court pursuant to RCW 2.06.030.

II. STANDARD OF REVIEW

¶8 Constitutional issues are reviewed de novo. State v. Sieyes, 168 Wn.2d 276, 281, 225 P.3d 995 (2010) (citing State v. Chavez, 163 Wn.2d 262, 267, 180 P.3d 1250 (2008)). This court will presume a legislative enactment constitutional and, if possible, construe an enactment so as to render it constitutional. City of Seattle v. Montana, 129 Wn.2d 583, 589-90, 919 P.2d 1218 (1996).

¶9 It is unclear to us from the briefing whether Jorgenson contends RCW 9.41.040(2)(a)(iv) is facially unconstitutional or only as applied to him, but we treat this as an as-applied challenge.1 2 See Wash. State Republican Party [151] v. Pub. Disclosure Comm’n, 141 Wn.2d 245, 282 n.14, 4 P.3d 808 (2000) (“a facial challenge must be rejected if there are any circumstances where the statute can constitutionally be applied” (citing In re Det. of Turay, 139 Wn.2d 379, 417 n.28, 986 P.2d 790 (1999))). A statute that is found unconstitutional as applied remains good law except in similar circumstances. City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004).

III. ANALYSIS

¶10 Jorgenson argues that RCW 9.41.040(2)(a)(iv) unconstitutionally infringes on his right to bear arms under article I, section 24 of the Washington Constitution and under the Second Amendment to the United States Constitution. 3 RCW 9.41.040(2)(a)(iv) proscribes the ownership, possession, or control of any firearm by a person who is “free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW [152]*1529.41.010.” “Serious offenses” are felonies including any crime of violence, indecent liberties, and sexual exploitation. RCW 9.41.010(18).

1. Washington Constitution

¶11 Where feasible, we resolve constitutional questions first under our own state constitution before turning to federal law. O’Day v. King County, 109 Wn.2d 796, 801-02, 749 P.2d 142 (1988) (citing State v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984)). “Besides our responsibility to interpret Washington’s Constitution, we must furnish a rational basis ‘for counsel to predict the future course of state decisional law.’ ” Id. at 802 (quoting State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986)).

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State v. Jorgenson, 312 P.3d 960, 179 Wash. 2d 145 (Wash. 2013).

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