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State v. Jorgenson

Supreme Court of Washington, En Banc

November 21, 2013

STATE of Washington, Respondent,
Roy Steven JORGENSON, Appellant.

Argued April 10, 2012.

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Peter B. Tiller, The Tiller Law Firm, Centralia, WA, for Appellant.

Aaron Bartlett, Attorney at Law, Kelso, WA, for Respondent.


[179 Wn.2d 148] ¶ 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 [179 Wn.2d 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.


¶ 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 [179 Wn.2d 150] 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.

¶ 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. The Court of Appeals, Worswick,

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


¶ 8 Constitutional issues are reviewed de novo. State v. Sieyes, 168 Wash.2d 276, 281, 225 P.3d 995 (2010) (citing State v. Chavez, 163 Wash.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 Wash.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.[2] See [179 Wn.2d 151] Wash. State Republican Party v. Pub. Disclosure Comm'n, 141 Wash.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 Wash.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 Wash.2d 664, 669, 91 P.3d 875 (2004).


¶ 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 [179 Wn.2d 152]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

¶ 11 Where feasible, we resolve constitutional questions first under our own state constitution before turning to federal law. O'Day v. King County, 109 Wash.2d 796, 801-02, 749 P.2d 142 (1988) (citing State v. Coe, 101 Wash.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, 749 P.2d 142 (quoting State v. Gunwall, 106 Wash.2d 54, 60, 720 P.2d 808 (1986)).

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¶ 12 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 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 Wash.2d at 61-62, 720 P.2d 808. 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

¶ 13 We examine the first two Gunwall factors together because they are closely related. These factors indicate [179 Wn.2d 153] that the firearm rights guaranteed by the Washington Constitution are distinct from those guaranteed by the United States Constitution.

¶ 14 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, being necessary to the security of a free State" to be in Heller, 554 U.S. at 577, 128 S.Ct. 2783. Rather, the phrase is a necessary and inseparable part of the right in itself. See Montana, 129 Wash.2d at 594, 919 P.2d 1218 (" 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

¶ 15 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 Wash.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 of Rights, 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))).

[179 Wn.2d 154] ¶ 16 In turn, many early state constitutions couch firearm rights in terms of self-defense or defense of the state. See Heller, 554 U.S. at 585 & n. 8, 128 S.Ct. 2783 (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

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

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federal counterpart. Gunwall, 106 Wash.2d at 62, 720 P.2d 808. The right to bear arms under the state constitution is not absolute but is instead subject to " ‘ reasonable regulation.’ " Montana, 129 Wash.2d at 593, 919 P.2d 1218 (quoting Morris v. Blaker, 118 Wash.2d 133, 144, 821 P.2d 482 (1992)); see, e.g., id. at 592-96, 919 P.2d 1218 (upholding Seattle's ban on carrying fixed-blade knives); Second Amendment Found. v. City of Renton, 35 Wash.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 ...

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