Firearm Rights

The right to possess firearms derives from the Second Amendment to the United States Constitution, and Article I, §24 of the Washington State Constitution. Our State constitutional provision is unique in that the right to “bear arms” is construed as an “individual” rather than “collective” right. (State v. Swanson, 116 Wn. App. 67 (2003)) The right to bear arms, however, is not absolute and is subject to reasonable regulation. (Caron v. United States, 524 U.S. 308 (1998))

This past summer new state laws went into effect that dramatically impact how firearm rights are lost, and restored, due to criminal convictions.  This blog will address those changes.

Loss of Firearm Rights RCW 9.41.040.

All Felony Offenses: Firearm rights are lost under state law whenever a person is convicted of any felony offense.

Other Specific Offenses Committed After July 1, 1993: Firearm rights are lost under state law whenever a person is convicted of the following offenses, when the offense is committed AFTER July 1, 1993, and the offense is committed by a family or household member against another, or by an intimate partner against another:

• Assault fourth degree.
• Coercion.
• Stalking.
• Reckless Endangerment.
• Criminal Trespass first degree.
• Violation of a Protection Order, or No Contact Order, which has a provision restraining or excluding the person from a residence.

 Other Specific Offenses Committed After June 7, 2018: Firearm rights are lost under state law whenever a person is convicted of the following offenses, when the offense is committed AFTER June 7, 2018, and the offense is committed by a family or household member against another, or by an intimate partner against another:

• Harassment.

Other Specific Offenses Committed After July 23, 2023: Firearm rights are lost under state law whenever a person is convicted of the following offenses, when the offense is committed AFTER July 23, 2023:

• Any offense defined as “domestic violence.”
• Stalking.
• Cyberstalking.
• Cyber Harassment, excluding some forms of harassment that do not involve threats of harm.
• Harassment.
• Aiming or Discharging a Firearm.
• Unlawful Carrying or Handling of a Firearm.
• Animal Cruelty second degree.
• Violation of the provisions of an order to surrender and prohibit weapons, an extreme risk protection order, or the provisions of any other protection order or no-contact order restraining or excluding the person from a residence.

Loss of Firearm Rights Related to DUI Offenses Committed After July 23, 2023: A controversial new provision to the law involves the loss of firearm rights associated with certain DUI convictions. Whenever a person is convicted of a “prior offense” committed after July 23, 2023, the person is subject to loss of firearm rights if the person was previously convicted of a “prior offense” within seven years of the commission of the new offense.

What is a “prior offense?” The most common prior offenses are any of the following:

• DUI/Physical Control conviction; including felony DUI/Physical Control.
• Reckless Driving, if the offense was originally charged as DUI/Physical Control.
• Reckless Endangerment, if the offense was originally charged as DUI/Physical Control.
• Negligent Driving first degree, if the offense was originally charged as DUI/Physical Control.
• A deferred prosecution under RCW 10.05.

 However, a prior offense can also be convictions for Vehicular Homicide and Vehicular Assault involving the element of driving while intoxicated.

In addition, a prior offense can also involve use of vehicles ranging from railroads, aircraft, snowmobiles, and other off-road vehicles.

What Do All These Changes Mean?

This new law expands the loss of firearm rights in three significant ways.

First, the law expands the loss of firearm rights to all “domestic violence” offenses, when committed after July 23, 2023. Domestic violence is typically defined by looking at the relationship between offender and victim. This typically means offenses committed by one family or household member against another, or by one intimate partner against another. Therefore, for offenses committed after July 23, 2023, any offense involving domestic violence should be considered as potentially impacting firearm rights.

Second, the law expands the loss of firearm rights to many non-domestic violence gross misdemeanor and misdemeanor offenses. These crimes relate to stalking, animal cruelty, and improper use of a firearm, even if lawfully owned; if committed after July 23, 2023.

Third, the law expands the loss of firearm rights to DUI and DUI related offenses. If committed after July 23, 2023, a DUI, or reduced DUI, conviction can result in loss of firearm rights if the person has a prior DUI or reduced DUI conviction within seven years. A reduced DUI typically means a conviction for Negligent Driving 1 or Reckless Driving where charge initiated as a DUI.

Several of these changes are very technical; meaning the issue of loss of firearm rights could depend on the application of specific provision of a statute or even the meaning of a word. If you are charged with any of these offenses, and it is alleged you committed the offense AFTER July 23, 2023, you need to consult with a lawyer to determine whether you may lose firearm rights if convicted.

Restoration of Firearm Rights RCW 9.41.041.

When Firearm Rights Cannot Be Restored: Certain convictions result in a lifetime prohibition against restoration of firearm rights:

• Any felony sex offense.
• Any class A felony.
• Any felony conviction with a maximum sentence of twenty years.

 When Firearm Rights Can Be Restored: If a conviction does not fall into the above category, the following provisions apply for restoring firearm rights.

Must Wait A Specific Period of Time: The following periods of consecutive years must pass from the date of conviction, without any intervening convictions for any offenses that result in loss of firearm rights.

• Five Years: Any conviction for a felony offense:
• Five Years: Any conviction for domestic violence.
• Five Years: Any conviction for a “prior offense.”
• Five Years: Any conviction for the following:
  • Stalking.
  • Cyberstalking.
  • Cyber harassment.
  • Harassment.
  • Aiming or discharging a firearm.
  • Unlawful carrying or handling of a firearm.
  • Animal cruelty second degree.
  • Violation of the provisions of an order to surrender and prohibit weapons, an extreme risk protection order, or the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence.
• Three Years: The statute refers to a three year wait period for certain offenses, but none are identified.

No Pending Charges: The person must not have any pending charges alleging the commission of any offense, regardless if the offense does or does not involve the loss of firearm rights.

Completion of Sentence Conditions: The person has completed all conditions of sentence. This includes any court ordered treatment. This does not include non-restitution legal financial obligations. This requirement may be waived if documentation is no longer available.

Other Prohibited Criminal History: The person must meet these other conditions:

• Have no criminal history that would count as part of an offender score for purposes of felony sentencing. (This is a complicated way of saying that the wait period is ten years for any class B felony, because it takes ten years for a class B felony to be removed from a person's offender score.)
• Has no conviction from any other state or other jurisdiction that would result in loss of firearm rights in that state or jurisdiction.
• The prosecuting attorney must be able to verify that the person has no other disqualifications towards possessing a firearm.
• The prosecuting attorney must be able to verify that the person would pass a background check for purposes of purchasing a firearm.

Filing Requirements: A person seeking to restore firearm rights must follow these procedures.

Where to File: A petition must be filed in a superior court in a county where a conviction occurred that resulted in loss of firearm rights.

Who Gets Served: The prosecutor must be served with a copy of the petition.

What the Prosecutor Must Do: In some circumstances the prosecutor will be required to notify certain victims of either crimes or protection orders. In these situations the victim will have the opportunity to provide the court with any information bearing on whether the person meets the requirements to restore firearm rights.

What the Court Must Do: The must grant the petition in cases where the person meets the requirements to restore firearm rights. The court may schedule a hearing to review the petition, but is not required to do so. The court may also review the petition in chambers.

What Do All These Changes Mean?

These changes add new requirements to the process to restore firearm rights, but also streamlines the process for courts and prosecutors.

There are significant changes. The petitioner has the burden to provide more information to the court, such as proof of sentence completing sentence conditions. I recommend clients first petition to vacate convictions and obtain certificates of discharge. These actions demonstrate proof that sentence conditions have been met.

The prosecutor must make a more thorough check of a person's background. The prosecutor must verify there no other prohibitions against restoring firearm rights, such as other convictions, no contact or restraining orders, or any other legal impediment to possession of firearm rights.

Finally, the prosecutor must verify that a person can pass a background check to purchase a firearm. This is different from possessing a firearm. Under federal law, certain felony and domestic violence convictions, along with other factors, can cause a person to fail a background check. I always recommend that clients first vacate any convictions that result in loss of firearm rights, to ensure that a background check will be successful. However, you will want to speak with a lawyer about any other issues that impact a background check for firearms.

The need for prosecutors to contact victims will lead to unfortunate delay. However, this requirement does not apply to all cases. It is important to differentiate which cases do not fall into this category so that the petition can be processed without any more delay.