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State v. Burger

January 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JOSHUAH BURGER, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-00108-6. Date filed: 05/10/95. Judge signing: Hon. Mary W. Brucker.

PER CURIAM. Joshuah Burger appeals his juvenile court conviction for unlawful possession of a firearm. He contends former RCW 9.41.040(1)(e) is unconstitutional as applied to his conduct and on its face because it proscribes mere momentary handling of an unloaded firearm. Because Burger has shown no infirmity in the statute as applied to his conduct, and because his facial challenge to the statute is not accompanied by a demonstration of standing, we affirm.

FACTS

On February 24, 1995, King County Police Officers saw a car pull away from the Federal Way Motel and accelerate quickly. The car turned onto Pacific Highway South without signaling, and then made a quick lane change, again without signaling. The officers turned on their emergency lights.

While following the car, one officer noticed that the right front passenger, later identified as Burger, was looking back and bending down as if trying to hide something. After approximately three blocks, the car pulled over.

The officers removed five occupants from the car and obtained consent to search. They found a pistol wrapped in Burger's jacket under the right front passenger seat. In a statement to police, Burger claimed the gun was not his. He said he had never seen it before that evening. He stated that when he returned to the vehicle at the Federal Way Motel, he saw the gun on the passenger seat. When one of the other boys in the car told him to hide it, he put it under his seat.

The State charged Burger with unlawful possession of a firearm. The juvenile court rejected the defense's contention that the evidence showed only momentary handling of the gun. The court emphasized the manner in which Burger wrapped the gun, and the fact that he had wrapped it in his own jacket. According to the court, that conduct was an "exercise of dominion over the [gun]" that went beyond a "momentary . . . possession. .

. ."

DECISION

Burger argues for the first time on appeal that RCW 9.41.040(1)(e) is unconstitutional as applied to his conduct and as written because it unreasonably restricts the state constitutional right to bear arms. Pursuant to RAP 2.5(a), we will review the constitutionality of the statute as applied to Burger's conduct for the first time on appeal. We will not, however, review his challenge to the statute as written because, as explained below, his standing to do so is questionable and he has not asserted any basis for standing.

I

The right to bear arms under Art I. sec. 24 of the Washington Constitution is subject to reasonable regulation under the State's police power. Seattle v. Montana, 129 Wash. 2d 583, 919 P.2d 1218 (1996). Any restriction on that right must be "reasonably necessary to protect public safety or welfare, and substantially related to legitimate ends sought." Seattle v. Montana, at 594. The statute at issue here restricts the right to bear arms by making it unlawful for a person under eighteen to have a firearm in his or her "possession. . . or. . . control. . . ." Former RCW 9.41.040(1)(e)(subject to substantial exceptions set forth in RCW 9.41.042). Burger contends this prohibition is an unreasonable restriction on his right to bear arms to the extent that it proscribes momentary handling of unloaded firearms.

Even assuming the statute proscribes momentary handling of firearms, Burger's conduct did not fall within that proscription. His act of wrapping the gun in his own coat supports an inference that he was at least temporarily acting as the gun's caretaker. The facts thus support the trial court's finding that he exerted dominion and control beyond that associated with momentary handling.

Burger's constitutional challenge to the proscription against possession of unloaded firearms is unpersuasive for a number of reasons. *fn1 First, people can be, and often are, mistaken as to whether a firearm is loaded. Allowing the possession of "unloaded" weapons would likely lead to injuries and deaths resulting from such mistakes. Second, because ammunition is widely available, the possession of unloaded firearms increases the possibility of violence and the risk to public health and safety. Unloaded firearms also threaten public health and safety because their mere presence can incite or cause drastic reactions in others who do not know they are unloaded. Cf. State v. Faille, 53 Wash. App. 111, 115, 766 P.2d 478 ...


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