State v. Jorgenson

• Court: Washington Supreme Court
• Decided: November 21, 2013
• Docket: 87448-4
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 87448-4 ) Respondent, ) ) v. ) EnBanc ) ROY STEVEN JORGENSON, ) ) Filed NOV 21 2013 Appellant. )

GONZALEZ, J .-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 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).

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 State v. Jorgenson, No. 87448-4

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 anns.

We hold that the statute is constitutional as applied to Jorgenson and affirm his

conviction.

I. FACTS AND PROCEDURAL HISTORY

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.

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.

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

2 State v. Jorgenson, No. 87448-4

second degree unlawful possession of a firearm. On a later search pursuant to a

warrant, officers found a 9mm Tokarev handgun and an Olympic Arms AR-15 rifle

inside Jorgenson's car.

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.

Jorgenson appealed his convictions, arguing that RCW 9.41.040 violates the

United States Constitution and the Washington Constitution. The Court of Appeals,

Worswick, C.J., certified the case to this court pursuant to RCW 2.06.030.

II. STANDARD OF REVIEW

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).

1 "A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, ifthe person does not qualify under subsection (1) ofthis 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: . . . 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."

3 State v. Jorgenson, No. 87448-4

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. 2 See Wash. State Republican Party v. Pub. Disclosure

Comm 'n, 141 Wn.2d 245,282 n.l4, 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. ofTuray, 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 ofRedmond v. Moore, 151 Wn.2d 664,669,91 P.3d 875 (2004).

III. ANALYSIS

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

2 Jorgenson apparently framed his argument as an as-applied challenge during oral argument. Wash. Supreme Court oral argument, State v. Jorgenson, No. 87448-4 (October 4, 2012), at approx. 14 min., 45 sec., audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org. 3 The dissent concludes RCW 9.41.040(2)(a)(iv) is facially invalid, apparently under the due process clause of the Fourteenth Amendment. See dissent at 1-2. While this is an interesting issue, it is not properly before this court because the parties did not brief it. However, we respectfully disagree with our colleague's characterization of the relevant case law. Federal courts have not consistently found the Adam Walsh Amendments' pretrial prohibition on firearm possession unconstitutional, as the dissent suggests. See dissent at 3-4. In some cases the dissent relies upon, the courts considered only the Adam Walsh Amendments' curfew, home detention, or home monitoring requirements. United States v. Karper, 847 F. Supp. 2d 350, 356-57 (N.D.N.Y. 2011); United States v. Smedley, 611 F. Supp. 2d 971, 974 (E.D. Mo. 2009) (expressly declining to consider the defendant's challenge to the firearm restriction); United States v. Merritt, 612 F. Supp. 2d 1074, 1075-76 (D. Neb. 2009); see also United States v. Torres, 566 F. Supp. 2d 591, 596-98 (W.D. Tex. 2008) (declaring all the pretrial release

4 State v. Jorgenson, No. 87448-4

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 9.41.010." "Serious offenses" are

felonies including any crime of violence, indecent liberties, and sexual exploitation.

RCW 9.41.010(18).

1. Washington Constitution

Where feasible, we resolve constitutional questions first under our own state

constitution before turning to federal law. 0 '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."' !d. at 802 (quoting State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d

808 (1986)).

Article I, section 24 of the Washington Constitution provides, "The right of the

individual citizen to bear arms in defense of himself, or the state, shall not be

impaired, but nothing in this section shall be construed as authorizing individuals or

restrictions facially invalid, but primarily discussing the curfew). In contrast, several courts have upheld categorical limits on firearm possession. Infra pp. at 19-20. Moreover, the case raised by the dissent that considered the firearm prohibition in greatest detail also remarked on the tenuous connection between the charged crime (receiving and possessing child pornography) and the firearm restriction-a disconnect we do not have in the case at bar. United States v. Arzberger, 592 F. Supp. 2d 590, 603 (S.D.N.Y. 2008) ("Indeed, the Government may well find it difficult to articulate a nexus between an accusation of receiving child pornography and the need to prohibit possession of a firearm."). There is much less distance between first degree assault with a firearm and a firearm restriction.

5 State v. Jorgenson, No. 87448-4

corporations to organize, maintain or employ an armed body of men." Jorgenson

argues that article I, section 24 provides broader protection than the Second

Amendment. We declined to address this issue in Sieyes, but it is properly before us

now. In comparing the scope of the state and federal constitutions, we look to six

factors: the text of the state constitution, differences in the text of parallel state and

federal constitutional provisions, the history of the state constitution, preexisting state

law, structural differences between the state and federal constitutions, and matters of

particular state interest or local concern. Gunwall, 106 Wn.2d at 61-62. As we

discuss below, these factors show that the state and federal rights to bear arms have

different contours and mandate separate interpretation.

Textual language and differences between parallel provisions

We examine the first two Gunwall factors together because they are closely

related. These factors indicate that the firearm rights guaranteed by the Washington

Constitution are distinct from those guaranteed by the United States Constitution.

Like the United States Constitution, the Washington Constitution vests firearm

rights in the "individual citizen." WASH. CONST. art. I, § 24; District of Columbia v.

Heller, 554 U.S. 570, 577, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). But unlike the

federal "right ... to keep and bear arms," U.S. CONST. amend. II, the state right

protects an individual's right to "bear arms in defense of himself, or the state," WASH.

CONST. art. I, § 24. The phrase "in defense of himself, or the state" is no mere

prefatory clause, as the Supreme Court found the language "[a] well regulated Militia,

6 State v. Jorgenson, No. 87448-4

being necessary to the security of a free State" to be in Heller. 554 U.S. at 577.

Rather, the phrase is a necessary and inseparable part of the right in itself. See

Montana, 129 Wn.2d at 594 ("The constitutional text indicates the right is secured not

because arms are valued per se, but only to ensure self-defense or defense of state.").

Reading the Washington Constitution to give these additional words meaning, we

conclude that the plain language of article I, section 24 is distinct and should be

interpreted separately from the Second Amendment to the federal constitution.

Constitutional and common law history

Another factor supporting a different reading of the Washington Constitution is

our common law history. Our constitution is patterned primarily on other state

constitutions, which themselves draw from prerevolutionary common law. See State

v. Earls, 116 Wn.2d 364, 391, 805 P.2d 211 (1991) (Utter, J., dissenting)

("Washington's Declaration of Rights in article 1 of the constitution had its sources

primarily in other states' constitutions, rather than the federal charter." (citing Robert

J. Utter, Freedom and Diversity in a Federal System: Perspectives on State

Constitutions and the Washington Declaration ofRights, 7 U. PUGET SOUND L. REV.

491, 497 (1984); THE JOURNAL OF THE WASHINGTON STATE CONSTITUTIONAL

CONVENTION 1889, at 512 n.40 (Beverly Paulik Rosenow ed., 1962) (article I, section

24 borrows from the Second Amendment of the United States Constitution, article I,

section 27 of the Oregon Constitution, and W. Lair Hill's proposed article I, section

28))).

7 State v. Jorgenson, No. 87448-4

In turn, many early state constitutions couch firearm rights in terms of self-

defense or defense ofthe state. See Heller, 554 U.S. at 585 & n.8 (citing

constitutional provisions from nine states guaranteeing the right to '"bear arms in

defense of themselves and the state'" or "'bear arms in defense of himself and the

state"'). The plain text of these rights is different from the plain text of the federal

right to bear arms. Therefore, like the first and second Gunwall factors, the third

Gunwall factor points toward a separate interpretation.

Preexisting state law

Preexisting state law does not demonstrate how the state right compares to its

federal counterpart. Gunwall, 106 Wn.2d at 62. The right to bear arms under the state

constitution is not absolute but is instead subject to "'reasonable regulation."'

Montana, 129 Wn.2d at 593 (quoting Morris v. Blaker, 118 Wn.2d 133, 144, 821 P.2d

482 (1992)); see, e.g., id. at 592-96 (upholding Seattle's ban on carrying fixed-blade

knives); Second Amendment Found. v. City ofRenton, 35 Wn. App. 583, 586-87, 668

P.2d 596 (1983) (upholding municipal ban on carrying firearms while on any

premises where alcoholic beverages are dispensed by the drink); State v. Tully, 198

Wash. 605,606-07, 89 P.2d 517 (1939) (upholding concealed weapons license

requirement and law prohibiting those convicted of a violent crime from possessing a

pistol). As we explain below, Second Amendment case law is currently evolving. It

is uncertain how the federal right compares to our preexisting "reasonable regulation"

analysis. We move on to the fifth Gunwall factor.

8 State v. Jorgenson, No. 87448-4

Structural differences

In Gunwall, we found the structural differences between the state and federal

constitutions required us to read article I, section 7 of the Washington Constitution

more broadly than its federal equivalent. We observed that where the United States

Constitution is a grant of enumerated powers, the Washington Constitution is a

limitation on the otherwise plenary power of the state. Gunwall, 106 Wn.2d at 66-67.

The same reasoning applies here. Because the state has the plenary power to act

unless expressly forbidden by the state constitution or federal law, we give a broad

reading to the "explicit affirmation of fundamental rights in our state constitution."

ld. at 62.

Particular state interest and concern

The final Gunwall factor directs us to consider whether the subject matter is

local in character or a matter of national policy. ld. Firearm ownership varies

radically between localities, as does the incidence of firearm violence. McDonald v.

City of Chicago,---- U.S.----, 130 S. Ct. 3020, 3128-29, 177 L. Ed. 2d 894 (2010)

(Breyer, J., dissenting). Furthermore, federalism and comity place the state courts in

the role of the "primary protectors of the rights of criminal defendants." Cabana v.

Bullock, 474 U.S. 376,391, 106 S. Ct. 689, 88 L. Ed. 2d 704 (1986). Therefore, this

factor also instructs us to look to the state right separately from the federal right.

9 State v. Jorgenson, No. 87448-4

The Gunwall analysis, aside from the inconclusive fourth factor, suggests we

should interpret the state right separately and independently of its federal counterpart.

We analyze article I, section 24 below.

We have long held that the firearm rights guaranteed by the Washington

Constitution are subject to reasonable regulation pursuant to the State's police power.

State v. Krantz, 24 Wn.2d 350, 353, 164 P.2d 453 (1945); see also Montana, 129

Wn.2d at 593; Morris, 118 Wn.2d at 144; State v. Rupe, 101 Wn.2d 664,707 n.9, 683

P .2d 571 (1984). Heller and McDonald left this police power largely intact. Heller

explicitly recognized "presumptively lawful" firearm regulations, such as those

banning felons and the mentally ill from possessing guns. 554 U.S. at 626-27 & n.26.

And while Heller rejected the use of a "freestanding 'interest-balancing' approach" to

determine the scope of Second Amendment rights, id. at 634, we read the Washington

Constitution's provisions independently of the Second Amendment pursuant to

Gunwall.

Under this court's precedent, a constitutionally reasonable regulation is one that

is "reasonably necessary to protect public safety or welfare, and substantially related

to legitimate ends sought." Montana, 129 Wn.2d at 594 (citing State v. Spencer, 75

Wn. App. 118, 121, 876 P.2d 939 (1994); Second Amendment Found., 35 Wn. App. at

586-87). We "balanc[e] the public benefit from the regulation against the degree to

which it frustrates the purpose of the constitutional provision." !d. The Court of

10 State v. Jorgenson, No. 87448-4

Appeals applied this test to the statute at bar in State v. Spiers, 119 Wn. App. 85, 79

P.3d 30 (2003).

The Spiers court held that RCW 9.41.040 was unconstitutional to the extent it

proscribed mere ownership of firearms by a person charged with a serious crime. 119

Wn. App. at 94. The statute, the Court of Appeals held, effectively forced a defendant

to dispose of all his or her weapons before leaving custody in order to avoid

prosecution. !d. at 93. Therefore, the statute burdened firearm rights to the point of

frustrating the appellant's article I, section 24 rights almost entirely. !d. at 93-94.

Specifically, the Court of Appeals held that criminalizing firearm ownership did not

advance public safety over and above the effects of criminalizing possession and

control. !d. at 94 ("The prohibition against possession and control of a firearm is

sufficient to protect public safety and welfare. The public does not derive much, if

any, additional benefit by forbidding a person who is free on bond pending trial for a

serious offense from owning firearms beyond that benefit secured by forbidding such

persons from possessing or controlling firearms."). The Court of Appeals held that

the ownership ban ofRCW 9.41.040(2)(a)(iv) was not reasonably necessary to protect

public safety, and reversed those convictions not based on evidence of actual

possession and control. !d. at 95.

Following Montana, we look first to public benefit, then to whether the

regulation frustrates the purpose of article I, section 24. The State has an interest in

preventing crime by persons awaiting trial. Although we do not find relevant

11 State v. Jorgenson, No. 87448-4

legislative history specifically regarding the ban on defendants charged with serious

offenses, we can safely presume that this provision pertains to the legislature's goal of

'"reducing the unlawful use of and access to firearms"' as a means of addressing

"'increasing violence in our society."' Matthew R. Kite, State v. Radan: Upsetting

the Balance ofPublic Safety and the Right To Bear Arms, 37 GONZ. L. REv. 201,206

(2002) (quoting violence reduction programs act, LAws OF 1994, 1st Sp. Sess., ch. 7,

§ 101). 4 Thus, we turn to the question of whether proscribing possession or control of

a firearm by a defendant unduly frustrates the purposes of article I, section 24.

We conclude that RCW 9.41.040(2)(a)(iv) is substantially related to its purpose

of protecting the public from firearm violence. Although, as the Court of Appeals

noted in Spiers, it is questionable whether public safety is furthered by prohibiting

mere ownership of firearms rather than only their possession by defendants released

on personal recognizance or bail, that issue is not before us because Jorgenson does

not dispute the trial court's conclusion that he possessed the guns. Moreover, the

legislature limited this prohibition to a defendant charged with a specific serious

offense, and only after a neutral judge has found probable cause to believe the

defendant committed a serious offense. See CrR 2.2(a), 3.2.1. The aptness of this

firearm restriction is particularly apparent in this case, where Jorgenson violated the

firearm prohibition while on bail after a judge found probable cause to believe

4 But we note that the legislature was not contemplating firearm crimes specifically by persons released on bond or personal recognizance. RCW 9.41.040(2)(a)(iv) was not added to the Code until1996. LAWS OF 1996, ch. 295, § 2.

12 State v. Jorgenson, No. 87448-4

Jorgenson had shot someone. Jorgenson also possessed the firearms while driving,

rather than in the home, "where the need for defense of self, family, and property is

most acute." Heller, 554 U.S. at 628. In deference to the legislature's finding that

certain crimes justify limited restriction of firearms, and because the trial court found

probable cause to believe Jorgenson had shot someone, we hold that RCW

9.41.040(2)(a)(iv) is reasonably necessary and does not violate article I, section 24 as

applied to Jorgenson. 5

2. Second Amendment

We next consider whether RCW 9.41.040(2)(a)(iv) violates the Second

Amendment to the United States Constitution. The Second Amendment provides, "A

well regulated Militia, being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed." This protection binds

Washington State. McDonald, 130 S. Ct. at 3026; Sieyes, 168 Wn.2d at 291.

The Second Amendment vests the right to bear arms in the individual. Heller,

554 U.S. at 602. In Heller, the Court struck down under the Second Amendment a

District of Columbia law that totally banned handgun possession in the home and

required any lawful firearm in the home to be disassembled or secured with a trigger

5 Although not before us here, we note that Washington courts have recognized the defense of necessity for unlawful possession of a firearm. State v. Jeffrey, 77 Wn. App. 222, 225-26, 889 P.2d 956 (1995) (a defendant must show "(1) he was under unlawful and present threat of death or serious injury, (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, (3) he had no reasonable alternative, and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm"); State v. Stockton, 91 Wn. App. 35, 43-44, 955 P.2d 805 (1998). Thus, when self-defense is most urgent, courts have recognized that use of a firearm may be defensible.

13 State v. Jorgenson, No. 87448-4

lock. !d. at 628, 635. But the rights guaranteed by the Second Amendment are

neither absolute nor unconditional. The Court identified "longstanding prohibitions

on the possession of firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the commercial sale of arms" as

examples of "presumptively lawful regulatory measures" controlling ownership of

firearms. !d. at 626~27 & n.26.

The level of scrutiny (if any) applicable to firearm restrictions challenged under

the Second Amendment is not settled. In light of Heller, we declined to analyze a

different subsection of RCW 9 .41. 040 under any level of scrutiny, instead looking to

the original meaning and traditional understanding of the right protected by the

Second Amendment, together with the burden imposed by upholding a statutory

provision forbidding children from possessing firearms. Sieyes, 168 Wn.2d at 295

(citing Eugene Volokh, Implementing the Right To Keep and Bear Arms for Self

Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443,

1449 (2009)). But the Heller Court did not rule out the possibility that traditional

levels of scrutiny may be appropriate to evaluate some Second Amendment

challenges. Rather, the Court found that rational basis did not sufficiently protect the

right to bear arms and that the District of Columbia's broad handgun prohibition

would fail constitutional muster " [u ]nder any of the standards of scrutiny that we have

applied to enumerated constitutional rights." 554 U.S. at 628 & n.27. Furthermore, it

14 State v. Jorgenson, No. 87448-4

is at least questionable whether some of the presumptively constitutional regulations

identified by the Court would withstand scrutiny under the historical understanding of

the right to bear arms. Compare C. Kevin Marshall, Why Can't Martha Stewart Have

a Gun?, 32 HARV. J. L. & PUB. POL'Y 695, 708 (2009) ("Though recognizing the

hazard of trying to prove a negative, one can with a good degree of confidence say

that bans on convicts possessing firearms were unknown before World War I."), with

Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second

Amendment, 82 MICH. L. REV. 204, 266 (1984) ("Felons simply did not fall within the

benefits of the common law right to possess anns."); and Carlton F.W. Larson, Four

Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse

Dixit, 60 HASTINGS L.J. 1371, 1376 (2009) ("One searches in vain through

eighteenth-century records to find any laws specifically excluding the mentally ill

from firearms ownership. Such laws seem to have originated in the twentieth

century."), with United States v. Emerson, 270 F.3d 203, 226 n. 21 (5th Cir. 2001)

(noting that '"lunatics"' and '"those of unsound mind'" were historically prohibited

from firearm possession (quoting Robert Dowlut, The Right to Arms: Does the

Constitution or the Predilection ofJudges Reign? 3.6 OKLA L. REV. 65, 96 (1983) and

Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right

to "Bear Arms," 49 LAW & CONTEMP. PROBS. 151 (1986))). The historical test we

embraced in Sieyes may not be appropriate for evaluating every type of firearm

regulation, and a level of scrutiny analysis may be proper.

15 State v. Jorgenson, No. 87448-4

Federal courts after Heller have considered different levels of scrutiny

depending, at least in part, on the type of law challenged and the type of limit imposed

on the right to bear arms. United States v. Call, 874 F. Supp. 2d 969, 976 (D. Nev.

2012) (quoting United States v. Reese, 627 F.3d 792, 801 (lOth Cir. 2010)). Courts

have compared Second Amendment challenges to those brought under the First

Amendment, noting that intermediate scrutiny is applied when reviewing time, place,

and manner restrictions on speech. United States v. Laurent, 861 F. Supp. 2d 71, 103

(E.D.N.Y. 2011) (collecting cases). By analogy, many courts have adopted

intermediate scrutiny when evaluating restrictions on gun possession by particular

people or in particular places. !d. In Laurent, for example, the court considered a

Second Amendment challenge to a ban on receipt of firearms by a person who is

under indictment for a crime punishable by imprisonment for more than one year. !d.

at 104; 18 U.S.C. § 922(n). 6 The court found that the firearm ban applied to only a

narrow class of persons, unlike the prohibition in Heller that extended to the public at

large; that the provision did not prohibit possessing firearms, but merely shipping or

receiving them; and that the ban applied for only the time between indictment and

either acquittal or conviction. Laurent, 861 F. Supp. 2d at 104. The Laurent court

therefore concluded that intermediate scrutiny was the appropriate standard. !d.; see

also Reese, 627 F.3d at 801, 802 (considering under intermediate scrutiny a law

6 18 U.S.C. § 922(n) provides that it is unlawful for "any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

16 State v. Jorgenson, No. 87448-4

prohibiting possession of a firearm by a person subject to a domestic protection

order); United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (reviewing

under intermediate scrutiny a former federal regulation that prohibited carrying or

possessing a loaded weapon in a motor vehicle within national park areas). But see

United States v. Engstrum, 609 F. Supp. 2d 1227, 1231-32 (D. Utah 2009) (applying

strict scrutiny to a statute banning persons convicted of misdemeanor domestic

violence from possessing firearms); Nordyke v. King, 681 F.3d 1041, 1044-45 (9th

Cir. 2012) (declining to determine what type ofheighted scrutiny applies to laws that

substantially burden Second Amendment rights); United States v. Skoien, 614 F.3d

638, 641-42 (7th Cir. 2010) (rejecting rational basis as the appropriate standard but

otherwise avoiding "the 'levels of scrutiny' quagmire").

We find intermediate scrutiny is appropriate to evaluate RCW

9.41.040(2)(a)(iv). Although there is no exact federal counterpart to this restriction,

we are guided by the court's analysis of the comparable statute in Laurent. 7 Unlike

the handgun prohibition in Heller, for example, which applied to everyone in the

jurisdiction, Washington's law bans only persons who have been charged with any of

an enumerated list of"serious offenses." Moreover, unlike the ban on convicted

felons possessing firearms, RCW 9.41.040(2)(a)(iv) is limited in duration, affecting a

7 We also note that at least two other states ban persons who have been charged with certain crimes and released on bail or personal recognizance from possessing weapons. HAw. REV. STAT.§ 134-7(b); BALDWIN'S OHIO REV. CODE ANN.§ 2923.13(A)(2)-(3) (West). Neither state has reviewed the validity of such restrictions under the Second Amendment after Heller.

17 State v. Jorgenson, No. 87448-4

person only while on bond or personal recognizance. Although Washington's firearm

ban is broader than 18 U.S.C. § 922(n) because it prohibits possession of firearms,

rather than only shipping, receiving, or transporting them, the ban is also narrower in

that it applies to persons charged with only a subset of serious crimes. We find that

RCW 9.41.040(2)(a)(iv)'s imposition on a person's Second Amendment rights is

sufficiently limited in the scope of affected persons and its duration to warrant review

under intermediate scrutiny.

A law survives intermediate scrutiny if it is substantially related to an important

government purpose. Sieyes, 168 Wn.2d at 295 n.l8 (citing United States v. Virginia,

518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996)). The State has an important

interest in restricting potentially dangerous persons from using firearms. See Skoien,

614 F.3d at 642 ("[N]o one doubts that the goal of ... preventing armed mayhem[] is

an important governmental objective."). RCW 9.41.040(2)(a)(iv) substantially relates

to this interest because it forbids only persons charged with specific serious offenses

from possessing firearms, and only while released on bond or personal recognizance.

We need not determine whether all the listed serious offenses are sufficiently related

to the State's interest in protecting the public because, as applied to Jorgenson, this

relation is certainly met. While released on bond after a judge had found probable

cause to believe Jorgenson had shot someone, Jorgenson was found with two guns in

his car by police officers investigating the discharge of a firearm. The legislature's

attempt to keep guns from potentially dangerous persons while released on bail is

18 State v. Jorgenson, No. 87448-4

justified as applied here. See Laurent, 861 F. Supp. 2d at 105 ("The fact that Laurent

was charged with the instant crime because he apparently committed a crime of

violence while under indictment undermines any claim he might have that § 922(n) is

not substantially related to preventing him from engaging in further violence.").

We are mindful, however, of the significant burden this statute places on

persons charged with a serious offense. Unlike the federal statutes prohibiting

possession of firearms with obliterated serial numbers and banning loaded weapons in

national park areas, RCW 9.41.040(2)(a)(iv) substantially impedes a person from

exercising the right to self-defense. And, this statute differs from the ban on firearm

possession by felons because it limits the Second Amendment rights of persons before

they have been found guilty of a crime. But, as the Seventh Circuit has found, "some

categorical disqualifications are permissible: Congress is not limited to case-by-case

exclusions of persons who have been shown to be untrustworthy with weapons, nor

need these limits be established by evidence presented in court." Skoien, 614 F.3d at

641. Indeed, courts have upheld categorical bans on firearm possession that do not

require an individualized determination of dangerousness. See, e.g., United States v.

Huitron-Guizar, 678 F.3d 1164, 1170 (lOth Cir. 2012) (affirming ban on firearm

possession by noncitizens who are unlawfully in the country); United States v. Seay,

620 F.3d 919, 925 (8th Cir. 2010) (upholding federal statute prohibiting illegal drug

users from firearm possession); United States v. Yancey, 621 F.3d 681, 687 (7th Cir.

19 State v. Jorgenson, No. 87448-4

2010) (per curiam) (same); 8 see also 18 U.S.C. § 922(g)(6) (firearm ban affecting any

person who has been dishonorably discharged from the armed forces); 18 U.S.C. §

922(g)(7) (prohibition on firearm possession by any person who has renounced United

States citizenship). We simply hold that, as applied here, the temporary restriction on

Jorgenson's right to bear arms after a trial court judge found probable cause to believe

he had shot someone does not violate the Second Amendment.

IV. CONCLUSION

We find that the limited, temporary ban on possession of firearms while

released on bail pending proceedings for a serious offense did not violate Jorgenson's

right to bear arms under either the state or federal constitution. We affirm.

8 We respectfully disagree with the dissent's characterization of Yancey as upholding a restriction on firearm possession after conviction of a crime. See dissent at 12. Yancey was charged with violating 18 U.S.C. § 922(g)(3), which makes it a f~lony for a person "'who is an unlawful user of or addicted to any controlled substance' to possess a gun." Yancey, 621 F.3d at 682 (quoting 18 U.S.C. § 922(g)(3)). Although the court noted that Yancey had been arrested for marijuana possession in the past, that fact was used merely to corroborate Yancey's admission that he regularly used marijuana. Id. The federal statute categorically prohibits unlawful drug users from possessing firearms-regardless of whether they have ever been convicted of, or even arrested for, any offense.

20 State v. Jorgenson, No. 87448-4

WE CONCUR:

~,C.Q.

21 State v. Jorgenson (Roy Steven)

No. 87448-4

WIGGINS, J. (dissenting)-Washington state law categorically prohibits

persons accused-but not yet convicted-of serious crimes from possessing

firearms. RCW 9.41.040(2)(a)(iv). The law automatically restricts the fundamental

rights of individuals who have not been found to have committed any crime, the law

applies to individuals not accused of a violent crime, the law denies arrestees the

right to be heard before they are denied fundamental rights, and the law denies

judges the opportunity to use their discretion in making an individual determination

of dangerousness. Each of these results is inconsistent with the essential fairness

provisions of procedural due process. 1 I respectfully dissent.

Because I find that RCW 9.41.040(2)(a)(iv) violates due process of law, I do

not address the majority's analysis of article I, section 24 of the Washington

Constitution and the Second Amendment to the United States Constitution.

1 The majority declines to engage with procedural due process because the parties did not brief the issue. Majority at 4 n.3. While Ray Jorgenson does not directly discuss procedural due process in his briefing before this court, he nevertheless relies on the fact that RCW 9.41.040(2)(a)(iv) does not require a finding of guilt or dangerousness. Opening Br. of Appellant at 16, State v. Jorgenson, No. 41828-2-11 (Wash. Ct. App. Sep. 1, 2011). This argument cannot be addressed without a procedural due process analysis. Furthermore, a scheme that categorically deprives people of fundamental rights is such a patently clear violation of procedural due process as to put a cloud of constitutional doubt over the statute. Therefore, rather than passing over the issue of procedural due process, the majority should at the very least call for supplemental briefing on the issue. See RAP 12.1 (b) ("If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court."). No. 87448-4 (Wiggins, J., dissenting)

DISCUSSION

We must recognize what the statute at issue does. RCW 9.41 .040(2)(a)(iv)

categorically prevents any person from possessing firearms while pending trial for

a series of statutorily enumerated serious crimes. The judge must only find

probable cause that the accused committed the crime-there is no opportunity for

an individualized hearing of dangerousness (indeed, the facts of this case

demonstrate that judicial discretion will be overruled by the statute). The accused is

deprived of the fundamental right to possess firearms and faces additional criminal

prosecution upon exercising that right. See State v. Sieyes, 168 Wn.2d 276, 287,

225 P.3d 995 (201 0) (recognizing that the right to bear arms is fundamental).

Though the right to bear arms is not absolute, regulation that infringes on an

individual liberty must be implemented in a fair manner. Mathews v. Eldridge, 424

U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). This required fundamental

fairness analysis, omitted by the majority, is the hallmark of our procedural due

process review. United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L.

Ed. 2d 697 (1987).

I. The categorical prohibition on the possession of firearms for indictees violates procedural due process

The due process clause provides that no state shall deprive any person of

"life, liberty, or property, without due process of law." 2 U.S. CaNST. amend. XIV;

WASH. CaNST. art. I, § 3. This protects individuals from governmental interference

2 Due process challenges under the Washington Constitution do not require separate analysis from those under the federal constitution. Hardee v. Dep't of Soc. & Health Servs., 172Wn.2d 1, 7 n.7, 256 P.3d 339 (2011).

2 No. 87448-4 (Wiggins, J., dissenting)

with rights '"implicit in the concept of ordered liberty."' Salerno, 481 U.S. at 746

(quoting Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S. Ct. 149, 82 L. Ed. 288

(1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 89 S. Ct.

2056, 23 L. Ed. 2d 707 (1969)). Regardless of the interests involved, "[t]he

fundamental requisite of due process of law is the opportunity to be heard."

Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363 (1914).

The Supreme Court has applied a procedural due process analysis to

deprivation of a defendant's liberty pretrial. Salerno, 481 U.S. 739. In Salerno, the

Court considered the constitutionality of the provisions of the "Adam Walsh

Amendments to the Bail Reform Act of 1984" (hereinafter Adam Walsh

Amendments) that permitted a defendant to be detained pretrial on a showing that

the defendant was likely to commit future crimes. /d. at 744, 750. The Court

sustained the constitutionality of the Adam Walsh Amendments over a due process

challenge specifically because the act explicitly required an individualized showing

of dangerousness by clear and convincing evidence before restraining the

defendant's liberty. 18 U.S.C. § 3142(f); Salerno, 481 U.S. at 750. The act was not

"a scattershot attempt to incapacitate those who are merely suspected of these

serious crimes," and a finding of probable cause that the defendant committed the

charged crime was insufficient to restrict the defendant's liberty. Salerno, 481 U.S.

at 750. Instead, Salerno required "a full-blown adversary hearing" in which the

government must "convince a neutral decisionmaker by clear and convincing

evidence that no conditions of release can reasonably assure the safety of the

community or any person." /d.

3 No. 87448-4 (Wiggins, J., dissenting)

Salerno's due process analysis of pretrial detention applies equally to the

pretrial prohibition on the possession of firearms. Federal courts have applied the

Salerno standard in assessing the federal Adam Walsh Amendments, 3 various

provisions of which have been held facially unconstitutional by numerous federal

district courts. See United States v. Karper, 847 F. Supp. 2d 350 (N.D.N.Y. 2011);

United States v. Smedley, 611 F. Supp. 2d 971 (E.D. Mo. 2009); United States v.

Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008); United States v. Torres, 566 F.

Supp. 2d 591 (W.O. Tex. 2008). 4 Like the Washington statute, the Adam Walsh

Amendments identify a subset of serious crimes 5 and require that all persons

indicted for those crimes are prohibited from exercising certain liberties, including

possession of a firearm, without an individual determination of risk. 18 U.S.C. §

3142(c)(1 )(B). Like the Adam Walsh Amendments, the statute at issue is

incompatible with the requirements of procedural due process. 6

3 18 U.S.C. § 3142(c)(1)(B) provides, "[l]n any case that involves a minor victim under section ... 2252(a)(2) ... of this title, ... any release order shall contain, at a minimum, a condition of electronic monitoring and ... the condition[] specified at subparagraph ... (viii) [that the defendant 'refrain from possessing a firearm, destructive device, or other dangerous weapon]' .... " 4 Of these cases, the only one that analyzes the firearm provision-Arzberger-finds it unconstitutional. 592 F. Supp. 2d at 602-03. 5 Serious crimes under the Adam Walsh Amendments include kidnapping, sex trafficking, aggravated sexual abuse, sexual abuse, abusive sexual contact, murder, sexual exploitation of children, selling or buying of children, child pornography, coercion or entitlement, or failure to register as a sexual offender. 18 U.S.C. § 3142(c)(1)(B). 6 While the Ninth Circuit of the Court of Appeals has declined to find the Adam Walsh Amendments unconstitutional, United States v. Peeples, 630 F. 3d 1136 (9th Cir. 201 0), its reasoning is distinguishable from the facts here. Relying on the principle that statutes should be read to avoid serious constitutional issues, the Ninth Circuit focused on provisions of the statute that enabled judges to utilize discretion, such as in the imposition

4 No. 87448-4 (Wiggins, J., dissenting)

In assessing whether a right to due process exists, we examine whether the

person has been deprived of a liberty interest, and we examine the process by

which that liberty was denied. In re Pers. Restraint of McCarthy, 161 Wn.2d 234,

240-41, 164 P.3d 1283 (2007) (citing Wilkinson v. Austin, 545 U.S. 209,221, 125 S.

Ct. 2384, 162 L. Ed. 2d 174 (2005)). We initially consider whether the individual is

being deprived of an interest that arises from '"the Constitution,' from 'guarantees

implicit in the word "liberty"' or 'from an expectation or interest created by state

laws or policies."' /d. (quoting Wilkinson, 545 U.S. at 221 ). Once we have

determined that an individual has been deprived of a liberty interest, our test for the

degree of due process required in a particular case follows the federal standard in

balancing three factors: the private interest to be protected, the risk of erroneous

deprivation of that interest by the government's procedures, and the government's

interest in maintaining the procedures. Morris v. Blaker, 118 Wn.2d 133, 144-45,

821 P.2d 482 (1992) (citing Mathews, 424 U.S. at 335).

Applying this analysis, it is clear that RCW 9.41.040(2)(a)(iv) violates due

process.

A. RCW 9.41.040(2)(a)(iv) burdened Jorgenson's fundamental right to bear arms

The right to possess firearms falls within the scope of the right guaranteed

by article I, section 24 and by the Second Amendment. See District of Columbia v.

of a curfew and the location and times of mandatory electronic monitoring. /d. at 1138-39. Ignoring the automatic restrictions on the possession of firearms, the court read the statute as allowing for judicial discretion. RCW 9.41.040(2)(a)(iv) has no such plausibly discretionary provisions.

5 No. 87448-4 (Wiggins, J., dissenting)

Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008); United States v.

Reese, 627 F. 3d 792 (1Oth Cir. 201 0); Sieyes, 168 Wn.2d at 291; State v. Rupe,

101 Wn.2d 664, 706-07, 683 P.2d 571 (1984). Recognizing this right, we also

recognize that Jorgenson had a liberty interest in this right sufficient to trigger a due

process analysis. McCarthy, 161 Wn.2d at 240 ('"A liberty interest may arise from

the Constitution."' (quoting Wilkinson, 545 U.S. at 221 )). We do not recognize a

hierarchy of constitutional rights; the fact that a right is enumerated renders it

fundamental and elevates it above all nonfundamental interests. Heller, 554 U.S. at

634; see also Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S. Ct. 2258,

117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997).

RCW 9.41.040(2)(a)(iv) clearly imposes a substantial burden on

Jorgenson's liberty interest. The law not only renders unlawful the otherwise lawful

possession of firearms, but it also allows the State to charge an individual with a

substantive offense and to impose additional punishment. /d. This statute is among

the most prohibitive in the nation, as it denies possession of firearms to a class of

individuals who have not been proved guilty. Only two other states impose such a

categorical restriction on the fundamental rights of a class without due process;

neither has yet been scrutinized judicially. See HAW. REV. STAT. § 134-7(b);

BALDWIN'S OHIO REV. CODE Ann. § 2923.13(A)(2)-(3) (West).

B. The statute deprives the defendant of fundamental rights

Jorgenson's fundamental right to bear arms is not unlimited. Heller, 554 U.S.

at 626 (noting with approval long standing prohibitions on the possession of

firearms by felons and the mentally ill). However, Salerno makes clear that the

6 No. 87448-4 (Wiggins, J., dissenting)

regulation of pretrial arrestees' liberties requires an individualized determination of

risk to ensure that individuals are not erroneously deprived of their fundamental

rights. See United States v. Laurent, 861 F. Supp. 2d 71, 108 (E. D. N.Y. 2011)

(citing Salerno, 481 U.S. at 751 ); United States v. Scott, 450 F. 3d 863, 874 (9th Cir.

2006); see also United States v. Williams, 616 F. 3d 685, 692-93 (7th Cir. 201 0);

Arzberger, 592 F. Supp. 2d at 602-03. "Absent any individualized determination,

there is simply no way of knowing whether the deprivation of liberty is warranted or

wholly erroneous." Smedley, 611 F. Supp. 2d at 975.

The mandatory restrictions of RCW 9.41.040(2)(a)(iv) create the irrebuttable

presumption that the safety of the community cannot be reasonably assured

absent the restrictions on arrestees of certain crimes. Ct. United States v. Polouizzi, 697 F. Supp. 2d 381, 390, 391 (E. D. N.Y. 201 0) (holding that the Adam

Walsh Amendments, in categorically preventing an individualized determination of

risk, "provide[] near certainty of erroneous deprivation of defendant's liberty

interest"). This presumption, akin to the presumption incorporated in the Adam

Walsh Amendments, unjustifiably burdens the fundamental rights of some

individuals. The majority asserts that "'some categorical disqualifications are

permissible."' Majority at 19 (quoting United States v. Skoien, 614 F.3d 638, 641

(7th Cir. 201 0)). But the majority overlooks that Skoien specifically referred to

persons already convicted of violent misdemeanors, not untried defendants still

entitled to a presumption of innocence. 614 F.3d 638. Courts have long recognized

7 No. 87448-4 (Wiggins, J., dissenting)

the distinctions between those convicted of a crime and pretrial detainees. 7 Scott,

450 F.3d at 878 (contrasting pretrial releasees with convicted persons and noting

that the latter "is no longer entitled to a presumption of innocence or presumptively

entitled to his [or her] freedom" (quoting United States v. Kills Enemy, 3 F.3d 1201,

1203 (8th Cir. 1993))). No court has upheld the categorical deprivation of a

fundamental right or the imposition of special bail conditions based solely on the

fact of an arrest and the finding of probable cause. /d. at 874.

RCW 9.41.040(2)(a)(iv) automatically strips the fundamental right to possess

firearms from persons accused of incest, child molestation, indecent liberties,

promoting prostitution in the first degree, sexual exploitation, and vehicular assault

or homicide, in addition to violent crimes. No nexus necessarily exists between

these crimes and future violence arising from possession of firearms, and the State

does not attempt to articulate any nexus. 8 The bald assumption that persons

7 It should be noted that under our case law, even defendants who are convicted of a crime retain a procedural due process interest in release on parole. See In re Pers. Restraint of Lain, No. 87109-4, slip. op. at 11-13 (Wash. Nov. 7, 2013). A person who has not even been convicted is still presumed innocent and should receive at least the same level of due process protection where fundamental rights are concerned. In other words, if a convicted person has a due process interest in liberty, then a person who is merely accused has a still greater due process interest in liberty. And if a person has a due process interest in liberty, then he or she also has a due process interest in possessing firearms because all fundamental rights are considered on the same footing. See Heller, 554 U.S. at 634; Glucksberg, 521 U.S. at 719-20. 8 The majority notes that the nature of the particular crime of which Jorgenson is accused-assault in the first degree with a firearm-creates a nexus between the accusation and potential future dangerousness. It should go without saying that the assault charge does not divest Jorgenson of the presumption of innocence. Nor does the assault charge establish that the automatic removal of Jorgenson's firearm rights is necessary to advance the State's interest in safety. As we discuss below, if Jorgenson was clearly dangerous, then the trial judge could have imposed (and presumably would have imposed) a firearm condition when he was given the opportunity.

8 No. 87448-4 (Wiggins, J., dissenting)

accused of these crimes are more likely to commit crimes than other members of

the public is overbroad and conflicts with the presumption of innocence. Scott, 450

F.3d at 874. While trial courts may presume the validity of criminal charges in

determining the conditions to permit a pretrial release, courts may not presume that

a defendant's liberty may be restricted based solely on the mere fact that a

defendant is charged with a crime. Salerno, 481 U.S. at 750; Bell v. Wolfish, 441

U.S. 520, 538, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Scott, 450 F.3d at 874

n.15.

The federal statutory scheme explicitly details what must occur to sufficiently

limit the risk of the erroneous deprivation of fundamental rights. Beyond merely

making an arrest and the finding of probable cause, the government must

"convince a neutral decisionmaker by clear and convincing evidence that no

conditions of release can reasonably assure the safety of the community or any

person." Salerno, 481 U.S. at 750; see also 18 U.S.C. §§ 922(g)(8), 3146. RCW

9.41.040(2)(a)(iv) requires the deprivation of individual liberty on probable cause

without any showing of future dangerousness. Because not all arrestees charged

with serious crimes can be shown to be dangerous, the statute guarantees the

erroneous deprivation of certain fundamental rights.

C. The State's general interest in public safety, without an individualized determination of risk, does not outweigh Jorgenson's interest in his fundamental right to bear arms

The State's regulatory interest in community safety outweighs an individual's

private liberty interest under special, limited circumstances. Salerno, 481 U.S. at

749. Individuals may be detained if they pose a risk of flight or if the State presents

9 No. 87448-4 (Wiggins, J., dissenting)

evidence that they pose a danger to witnesses. /d. In determining the validity of the

government interest, courts balance the nature of the interest and the burdens that

an additional or substitute procedural requirement would entail. Mathews, 424 U.S.

at 335.

As in Salerno, the State's interest in preventing danger to the community is a

legitimate regulatory goal. 481 U.S. at 747 (citing Schall v. Martin, 467 U.S. 253,

104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984 )). Indeed the State generally has a valid

interest in preventing all crime. /d. at 749-50. However, this general interest in

public safety must be balanced against an individual's strong interest in our

fundamental liberties. /d. at 750-51. A general interest alone is not sufficient to

overcome an individual's strong interest in fundamental rights. /d.

A judicial determination of probable cause that the defendant committed the

charged crime is insufficient in itself to justify deprivation of a fundamental right. /d.

at 750 (statute only valid with probable cause and with individualized determination

of dangerousness); Scott, 450 F.3d 863 at 874 ("arrest alone [does] not establish

defendant's dangerousness; it merely trigger[s] the ability to hold a hearing during

which such a determination might be made"). In order to subordinate an individual's

fundamental liberty interest to the needs of society, a judicial officer must find by

clear and convincing proof that an arrestee, already indicted or held to answer for a

serious crime, presents a demonstrable danger to the community. Salerno, 481

U.S. at 750. Probable cause alone does not elevate the State's general interest in

preventing crime to the point that would warrant denying Jorgenson his

fundamental rights. Compare majority at 20, with Salerno, 481 U.S. at 750.

10 No. 87448-4 (Wiggins, J., dissenting)

The government's interest in ensuring the safety of the community would not

be substantially burdened by requiring an independent judicial determination of the

danger caused by the defendant and the efficacy of the proposed condition. This

requirement is consistent with both federal practices of detention and with

restrictions on the right to bear arms in the federal system; due process requires

that an arrestee's liberty be restricted only after a determination that there is no

other less drastic means that can reasonably assure his or her presence at trial or

the safety of the community. Salerno, 481 U.S. at 750; see also 18 U.S.C. § 3146;

cf. 18 U.S.C § 922(g)(8). Here, there was no such individual determination, and the

likelihood for error is significant, as noted above. Empowering judges to perform an

individualized factual determination of the defendant's dangerousness would

reduce the probability of error without burdening the government's interest in public

safety. If a defendant is as clearly dangerous as the majority supposes Jorgenson

to be, see majority at 4 n.3, then a judge would not hesitate to impose a firearm

restriction. Relying on the expertise of a judge familiar with the record would help

carry out the statute's purpose of removing firearms from dangerous defendants,

while not burdening the constitutional rights of nondangerous defendants.

The majority identifies only two other states that prohibit pretrial releasees

from possessing firearms. Majority at 17 n. 7. Nearly every state is able to ensure

the safety of the community by restricting the possession of firearms to those who

have been convicted of a serious offense or felony or by requiring an individualized

determination of dangerousness performed by the trial court following the initial

indictment. See, e.g., OR. REV. STAT. § 166.250; IDAHO CODE ANN. § 18-3316;

11 No. 87448-4 (Wiggins, J., dissenting)

ALASKA STAT. § 11.61.200; N.Y. PENAL LAW § 265.01 (4) (McKinney) (convicted

felons cannot possess firearms); ARIZ. REV. STAT. ANN. § 13-3101 (A)(?)( a), (b)

(requiring an individualized finding of dangerousness for mental patients and

prohibiting access to firearms for convicted felons). Nothing on the record shows

that these states experience more crime by persons awaiting trial than do Hawaii

and Ohio, the only two states besides Washington that impose categorical bans on

possession.

In addition, no court has upheld a ban like ours after the decision of the

Supreme Court in Heller, 554 U.S. 570. Not a single case cited by the majority

supports a categorical ban on the possession of firearms by individuals pending

trial in the absence of an individualized determination of dangerousness. Instead,

the majority's cases either uphold restrictions on possession after conviction of a

crime-United States v. Yancey, 621 F. 3d 681, 687 (7th Cir. 201 0) (per curiam);

United States v. Seay; 620 F.3d 919, 920 (8th Cir. 2010); Skoien, 614 F.3d at 645;

United States v. Engstrum, 609 F. Supp. 2d 1227, 1228 (D. Utah 2009)-or uphold

pretrial restrictions in which the defendant had an opportunity to be heard-Reese,

627 F. 3d at 804; United States v. Emerson, 270 F. 3d 203, 265 (5th Cir. 2001 ). 9

9 The majority also points to a case barring undocumented aliens from possessing firearms, United States v. Huitron-Guizar, 678 F.3d 1164, 1170 (1Oth Cir. 2012), and a statute barring persons who have renounced their United States citizenship from possessing firearms, 18 U.S.C. § 922(g)(7). This law is not relevant because Jorgenson is a United States citizen who had not, at the time of his arrest, been convicted of any crime. And even if Huitron-Guizar were on point, that case did not perform any due process analysis. Rather, it relied solely on the Second Amendment and the Equal Protection Clause. Huitron-Guizar, 678 F.3d at 1165-71.

Finally, the majority points to a statute that forbids persons dishonorably discharged from the military from possessing firearms. 18 U.S.C. § 922(g)(6). That statute is not helpful

12 No. 87448-4 (Wiggins, J., dissenting)

The majority relies most heavily on Laurent, a case that explicitly limits its

holding to the receipt, shipping, or transportation of firearms. 861 F. Supp. 2d at

107-08 (noting that the statute at issue "does not categorically prohibit an individual

under indictment from retaining weapons already in his possession"). The

majority's reliance on these decisions is misplaced in that the majority fails to

recognize that these decisions do not approve of pretrial restriction of the

possession of firearms without an opportunity to be heard and a judicial

determination that the restriction is necessary.

It is entirely appropriate to prohibit some individuals accused of a serious

crime from possessing firearms. However, the categorical denial of due process

when stripping individuals of their fundamental rights can never be valid. Salerno,

481 U.S. at 744; Arzberger, 592 F. Supp. 2d at 603. RCW 9.41.040(2)(a)(iv) does

not allow for an individualized determination of dangerousness before depriving

defendants of their liberties; we must find the statute facially unconstitutional.

because a service member must be adjudicated guilty by a court-martial in order to be dishonorably discharged. Rather than supporting the majority's position, 18 U.S.C. § 922(g)(6) shows that an individualized finding of guilt is necessary before firearm rights can be taken away.

13 No. 87448-4 (Wiggins, J., dissenting)

CONCLUSION

The legislature may reasonably regulate the right to bear arms, consistent

with the precedents of this court and of the United States Supreme Court.

However, any such regulation must comport with due process. RCW

9.41.040(2)(a)(iv) impermissibly denies Jorgenson his fundamental right to bear

arms without due process of law.

I cannot limit this analysis to an as-applied challenge to RCW

9.41.040(2)(a)(iv) because due process requires a judicial determination of

dangerousness and an opportunity to be heard in every case. The statute is

accordingly facially invalid. Nor can I remand for a determination of

dangerousness without running afoul of double jeopardy. Jorgenson simply could

not have been convicted under RCW 9.41.040 absent the unconstitutional

provisions of 9.41.040(2)(a)(iv). Therefore, I would reverse the Cowlitz County

Superior Court and remand for dismissal of Jorgenson's convictions of unlawful

possession of a firearm.

14 No. 87448-4 (Wiggins, J., dissenting)

I respectfully dissent.

15. State v. Jorgenson, No. 87448-4 Concurrence in the Dissent by J.M. Johnson, J.

J.M. JOHNSON, J. (concurring in the dissent)-! agree with the

analysis of Justice Wiggins' dissent. I write separately, however, to

emphasize my continued opposition to the majority's adoption of

"intermediate scrutiny" as the standard of review for laws that limit the

fundamental right to bear arms expressly protected by both the United States

and Washington Constitutions. This is most dramatically obvious when

considering Washington's unqualified right to bear arms in article I, section

Before the United States Supreme Court ruled in McDonald v. City of

Chicago, _U.S._, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010); accord

District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d

637 (2008), that the Second Amendment applies to the states, this court in

1 "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men." State v. Jorgenson, No. 87448-4 Concurrence in the Dissent by J.M. Johnson, J.

State v. Sieyes, 168 Wn.2d 276, 287, 225 P.3d 995 (2010), determined that

the right to bear arms is fundamental. "State interference with a

fundamental right is subject to strict scrutiny." Amunrud v. Bd. of Appeals,

158 Wn.2d 208, 220, 143 P.3d 571 (2006). In order to pass strict scrutiny, a

law infringing on a fundament right must be narrowly tailored to serve a

compelling state interest. !d. (citing Washington v. Glucksberg, 521 U.S.

702, 721, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997)).

In today' s decision, the majority decides that the fundamental right to

bear arms does not require strict scrutiny protection. Instead of ensuring that

the law is narrowly tailored to serve a compelling interest, the majority gives

"deference to the legislature's finding that certain crimes justify limited

restriction of firearms .... " Majority at 13. 2

The majority ultimately finds RCW 9.41.040(2)(a)(iv) constitutional

under article I, section 24 because it is "substantially related to its purpose of

protecting the public from firearm violence." Majority at 12. Likewise,

when the majority analyzes RCW 9.41.040(2)(a)(iv) under the Second

Amendment, it applies only "intermediate scrutiny" to find it constitutional.

Majority at 17.

2 Whether a firearm prohibition is constitutionally justified in other cases should be determined as applied therein, with the strict scrutiny review standard.

-2- State v. Jorgenson, No. 87448-4 Concurrence in the Dissent by J.M. Johnson, J.

The majority does not persuade me. Recognizing strict scrutiny still

allows an analysis in which (unlike most free speech cases) the right to bear

arms will not inevitably overwhelm other compelling interests.

As I noted, of most courts in Sieyes, despite the clarity of our federal

and state constitutions, the right to bear arms "has seldom been viewed as

deserving the same protection as other fundamental rights found in either the

Bill of Rights or our state constitution." 168 Wn.2d at 306 (J.M. Johnson, J.,

concurring and dissenting in part). "No good reason exists to continue this

legacy of disregard and disproportionate review. In fact, doing so furthers

the risk that courts-or the legislature-will do injustice to other

fundamental constitutional rights ... by failing to adequately scrutinize laws

that limit those rights." Id. Just because the fundamental right in question is

a right that is not politically favored, there is no reason to afford it a lesser

level of protection; indeed, such constitutional rights need more protection.

It is possible that RCW 9.41.040 might withstand strict scrutiny with

regard to serious offenses involving firearms, such as in this case where

firearms seemingly were involved at each stage. The State has a compelling

interest in preventing future crimes. Westerman v. Cary, 125 Wn.2d 277,

293, 892 P.2d 1067 (1994). But, the statute's application to "persons

-3- State v. Jorgenson, No. 87448-4 Concurrence in the Dissent by J .M. Johnson, J.

accused of incest, child molestation, indecent liberties, promoting

prostitution in the first degree, sexual exploitation, and vehicular assault or

homicide" bears no automatic relation to this compelling interest. Dissent at

8. The definition of a "serious offense" in RCW 9.41.010 should be more

narrowly tailored.

Washington's constitutional founders adopted protection for "[t]he

right of the individual citizen to bear anns." CONST. art. I, § 24. This

fundamental right must be accorded the protections the authors and settler-

ratifiers of our constitution intended. Because this court continues to

disregard this constitutional "right" and treat it as deserving as of lesser

protection, I dissent. Where there is such "compelling interest," the

legislature must state such interest and balance with the least restrictive

measure to protect both that interest and the constitutional right to bear arms.

-4- State v. Jorgenson, No. 87448-4

-5-