Is Washington’s Unlawful Possession of a Firearm Statute Still Constitutional?

Recently, the Washington State Supreme Court authored State v Blake, 481 P.3d 521 (2021).

In this decision, the Court declared that:

The question before us today is whether unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize. Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.

Blake at 528

In reaching that conclusion, the Court explained that “due process clause protections generally bar state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.”  Blake at 524.  The Court found that RCW 69.50.4013 – a strict liability drug possession statue – is exactly the sort of “passive conduct” that Article 1, Section 3 of the Washington State Constitution and the Fourteenth Amendment were designed to protect against.  The reason for this is that the Court determined that simply possessing something is “passive nonconduct” and “criminalization of passive nonconduct without mens rea “makes no distinction between conduct calculated to harm and that which is essentially innocent” and therefore exceeds the State’s police power.”  Id at 528

The Court further claimed that “to be sure, at one time, it might have been possible for this court to avoid this constitutional issue by interpreting RCW 69.50.4013 as silently including an intent element and thereby saving it from unconstitutionality. But that time has long since passed.”  Id at 524.   The Court referred to State v Cleppe, 96 Wn.2d 373, 635 P. 2d 435 (1981) which considered RCW 69.50.401(d) subsequent to modification by the State Legislature in 1979.  In Cleppe, the Court held that the new statue was devoid of mens rea but invented an affirmative defense called “unwitting possession” which even the Court later admitted was “judicial legislation in its most direct form.”  Id. at 530.  In striking down RCW 69.50.401, the Court observed “A judicially created affirmative defense may ameliorate the harshness of criminalizing innocent nonconduct, but it cannot save an unconstitutional statute.”  Id. at 531

The Court’s brief attempt in the Blake decision to distinguish RCW 69.50.401(unlawful possession of a controlled substance) from RCW 9.41.040 (unlawful possession of a firearm) suggests the constitutionality of the latter is now as suspect as the former. This is primarily because the Court has already ruled that the State need not prove beyond a reasonable doubt that defendants charged under RCW 9.41.040 – Unlawful Possession of a Firearm –  were actually aware it is unlawful for them to engage in passive conduct which is not unlawful in mainstream society and in fact concerns an expressed constitutional right for individuals to bear arms.

The Supreme Court briefly and indirectly referenced RCW 9.41.040 in Blake by citing to State v Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000) to attempt to explain why it was not possible for the Court to rescue the Legislature’s drug possession statue as it had other charges.  Blake at 531.  A brief history of RCW 9.41.040 and its interpretation is required to properly assess the situation under Blake.

We must begin by acknowledging that when examining RCW 9.41.040, we are not just considering “passive conduct” in a criminal statute but also an expressed constitutional guarantee for individuals to possess arms.  As the Court has observed: “we regard the history, lineage, and pedigree of the Second Amendment right to bear arms necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.”  State v Sieyes, 168 Wn.2d 276, 225 P.3d 995, 1000 (2010).  Washington’s Constitution expressly guarantees the “right of the individual citizen to bear arms in defense of himself.”   Article I, section 24 of the Washington Constitution.

No similar expressed guarantee or right exists concerning the possession of methamphetamine, and so this may require a higher level of judicial scrutiny concerning the Legislature’s crafting of passive non-conduct offenses and the actual awareness of the unlawfulness of engaging in such behavior.

History of Washington’s Unlawful Possession of a Firearm Statute

In 1935, the Washington State Legislature passed SB 147.  That bill included the following language “no person who has been convicted in this state or elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control.”  1935 c 172 § 4; RRS § 2516-4.]  This is the origin of RCW 9.41.040(2)(a).  Although the class of prohibited individuals and prohibited arms has expanded since that time by subsequent legislative amendments, at no time has an expressed mens rea been written into the statue.

Until the mid 1990s, it had apparently been understood and not challenged that RCW 9.41.040(2)(a) was a strict liability offense like RCW 69.50.401 was.  As with RCW 69.50.401, the concept of unwitting possession was an affirmative defense to the charge of unlawful possession of a firearm.  See State v Anderson, 94 Wn.App. 151, 157-58, 971 P.2d 585 (1999).  See also State v Semakula, 88 Wn.App 719, 726, 946 P.2d 795 (1997); State v Reed, 84 Wn.App. 379, 383, 928 P.2d 469 (1997); State v Jeffrey, 77 Wn.App. 222, 225-26, 889 P.2d 956 (1995)(still may assert necessity in select circumstances despite being a strict liability offense).

Then a series of “tough on guns” measures were enacted and the constitutionality of the mens rea of the statute was called into question given the severity of the consequences that flowed forth.  In Anderson, Division 1 observed “the courts do not have the authority to rewrite statutes, even if the results appear unduly harsh” in explaining why the lack of mens rea must be preserved.  Anderson (1999) at 588.

On appeal to the Washington Supreme Court, Anderson was reversed.  State v Anderson 141 Wn.2d 357, 5 P.3d 1247 (2000).  Mr. Anderson did not attack the constitutionality of making UPF2 a strict liability offense, but rather argued that the lower courts had failed in his and other cases to recognize the implied mens rea of the statue and did so by expressly analogizing to the drug statues:

[T]he Legislature did not employ the measures it could easily have used to evidence an intent to make the offense a strict liability crime. He notes, for instance, that it did not, in passing the statute, remove an existing intent element. See State v. Cleppe, 96 Wn.2d 373, 378-79, 635 P.2d 435 (1981) (prior drug possession statute contained an intent element and its removal indicates strict liability intended).

Anderson, 2000 at 1250-1251.

Beyond this procedural distinction, Mr. Anderson argued that the absence of expressed affirmative defenses or a mens rea did not, in itself, equate to an intent by the Legislature to deprive the defense of either.  Id.  The majority of the Court found this argument persuasive, saying:

While we agree with the State that the Legislature revealed its intention to address the problem of increasing violence in our society, it did not indicate that the problem should be addressed by sweeping entirely innocent conduct within this statute relating to the possession and control of firearms. Its failure to do so is significant, we believe, because the Legislature has on many occasions shown an ability to make knowledge an element of an offense. Its additional failure to provide in the statute for the affirmative defense of unwitting conduct or to expressly eliminate lack of knowledge as a defense are, in our view, other indicators of its intent to make knowledge an element of the offense.

Id.

Thus, in the year 2000 – 65 years after the creation of an unlawful possession of a firearm statue, the State received a judicially imposed burden of proving the defendant’s knowledge of possessing the gun under the statue.

However, the Court has continued to uphold pre-Anderson rulings that knowledge that possession of a firearm is unlawful in their individual case is not required to convict on this offense.  See State v Semakula, 88 Wn.App. 379, 383, 928 P.2d 469 (1997)(Semakula also held that RCW 9.41.040 is a strict liability offense). Further, while notification of ineligibility of the right to possess a firearm has been required for all disqualified offenders since 1994, the Court has still ruled that “the unlawful possession statute does not require knowledge that possession is illegal.” State v Reed, 84. Wn.App. 379, 928 P.2d 469 (1997)(also implied that the statute is a strict liability offense).

The Anderson decision, as with Blake, was a narrow five to four decision with a vigorous dissent analogizing to the UPCS statute to justify the preservation of this statute as a strict liability offense and arguing that “the Legislature’s failure to include a mental element, in light of its demonstrated ability to include a mental element where it wants one, could just as reasonably indicate its intent to impose strict liability.”  Anderson at 1253.  The Dissent noted that a similar weapons possession statues – RCW 9.41.300 – carries with it an explicit mental element thus suggesting that when the Legislature is silent on the issue of intent, and the issue at hand concerns a malum prohibitutum offense concerning the general public welfare – such as tobacco regulations – strict liability is appropriate.  Both sides agreed the offense at play concerned a malum prohibitum offense regarding general public safety so the only issue at play was what the Legislature is saying when they do not say anything.

The Court in Blake failed to adequately distinguish RCW 69.50.401 from RCW 9.41.040 in Anderson 

In Blake the Court indirectly attempted to draw a distinction between the unlawful drug possession statue first examined by the Supreme Court in Cleppe and the unlawful possession of a firearm statue first examined by the Supreme Court in Anderson which now – in its derivative form – is charged against TM.  That distinction, and the obvious problems it creates, can be boiled down to this three parts (1) dueling interpretations of legislative intent when the legislature is silent with regard to mens rea; (2) supposedly different histories of review before the Court and (3) failure to fully appreciate the scope of passive nonconduct.

The dueling interpretation of legislative intent section can best be summarized like thus:

1. The drug statue formally had a mens rea, now it does not thanks to legislative amendment.  The removal of preexisting mens rea is evidence of intent to make drug possession a strict liability offense.  State v Cleppe, 96 Wn.2d 373, 378-79, 635 P.2d 435 (1981).
2. The firearm statute never has included a mens rea element to it.  This suggests the legislature intends knowledge to be the required standard of guilt.  To do otherwise would be to “criminalize a broad range of apparently innocent behavior” and to “fly in the face of the strongly rooted notion that strict liability crimes are disfavored.”  Anderson at 1251-1252.

Therefore, the State and indeed the Supreme Court may argue that there is no conflict here because one statute has always been properly interpreted and another has not.  This requires us to ignore a lot of precedent and to narrowly tailor the issue of knowledge of possession as opposed to also being actually aware that possession is uniquely unlawful in their particular circumstances.

The second issue is the supposedly different histories these two statutes have before the Court.  Forty-two years after the Legislature amended the UPCS statue, the Supreme Court observed in Blake that: “at one time, it might have been possible for this court to avoid this constitutional issue by interpreting RCW 69.50.4013 as silently including an intent element and thereby saving it from unconstitutionality. But that time has long since passed.”  Blake at 524.  Citing Anderson by name, the Court declared: “Unlike the statute in…Anderson…we are not interpreting RCW 69.50.4013 for the first time.  Instead, we face 40 years of precedent and legislative acquiescence.”  Blake at 532.

In a footnote, the Court further explained: “if we were interpreting RCW 69.50.4013 for the first time, we would interpret the statute to include a mens rea element for the reasons outlined by the concurrence…But the interpretive rule of legislative acquiescence bars us from disregarding that body’s failure to amend the drug possession statue for the last forty years.”  Blake, footnote 13.

The Doctrine of Legislative Acquiescence is:

Once a court has construed a statute, the legislative branch is free to clarify its intent by altering the statute if it sees fit. If it does not do so, then we presume the legislature is satisfied with the interpretation. At some point, legislative acquiescence in the interpretation is assumed. When that point is reached, courts essentially lose the ability to change their mind about what the statute means.

State v AM, 194 Wn.2d 33, 448 P.3d 35 (2019)

This is frankly circular reasoning and fails to recognize or factor the Court’s creation of the unwitting possession defense in the calculus of the Legislature’s approval or disapproval of the statute.  It also fails to identify when the cutoff for courts to change their mind is reached.

Anderson was decided 65 years after RCW 9.41.040 went into effect.

During the entirety of that time, to today, no mens rea element has been included in a statute which concerns a fundamental constitutional right.  And the Court has endorsed the idea that prosecutors need not prove that Defendants are actually aware it is illegal for them to do something that is otherwise a constitutional right.  That makes the history of RCW 9.41.040 automatically distinct from RCW 69.50.401. 

The third and certainly most complicated issue at play is the failure to address and fully appreciate the scope of passive nonconduct in Blake as it was applied to Anderson and the lineage of cases surrounding that decision.  In Blake, the Court referenced three cases that inspired its decision, saying  “Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.” Blake at 528.  But in each of those cases, what made the conduct “innocent” and “passive” was not just the action involved, but also the failure to establish a proof of knowledge that the conduct was unlawful.

The clearest example of this is Lambert.  In Lambert, the City of Los Angeles had made it a crime for convicted felons to remain in the city for five days without registering their presence with the police.  Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957).  In reviewing the constitutionality of the statute, the Court described the issue as “The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.”  Lambert at 227.  The Court went on to explain that “the rule that “ignorance of the law will not excuse” is deep in our law, as is the principle that of all the powers of local government, the police power is “one of the least limitable.”  On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice.”  Lambert at 227-228.

This contrasts with the history of RCW 9.41.040 as interpreted by the Court.  In State v Semakula, the Court expressly held that the State need not prove, and it is no defense, that a defendant lacked knowledge that his right to gun ownership/possession is prohibited.[1] Anderson seemed to endorse Semakula’s conclusion that awareness that possession was criminal was not required to satisfy due process.  Anderson at 1249. Semakula has been referenced by our Supreme Court as recently as State v Williams 158 Wn.2d 904, 148 P.3d 993 (2006) in the context of an unrelated firearm statute which criminalizes possession of a short barrel shotgun.  In Williams, the Court held that the State is required to establish the Defendant knows the gun has been modified, but does not need to establish knowledge that the modification is unlawful.  Williams at 994.  Williams however concerns passive nonconduct of a behavior that – like drug possession – is generally not permissible in the community, i.e. possessing modified firearms.  But for cases like Anderson, concern individuals accused of passive nonconduct of a behavior that is not only generally permissible but also Constitutionally guaranteed.

([1] Division 2 has created a narrow exception for defendants who “can demonstrate actual prejudice arising from a sentencing court’s failure to comply with the statute’s mandate to advise him about the statutory firearm-possession prohibition.”  State v Leavitt, 107 Wn.App 361, 27 P.3d 622, 628 (2001)  But this solution – in addition to shifting the burden and failing to account for those with out of state history – conflicts with the holding in Blake that A judicially created affirmative defense may ameliorate the harshness of criminalizing innocent nonconduct, but it cannot save an unconstitutional statute.”  Id. at 531)

Again, Blake holds that “criminalization of passive nonconduct without mens rea “makes no distinction between conduct calculated to harm and that which is essentially innocent” and therefore exceeds the State’s police power.”  Id at 528.

How does a statute that has been silent on the issue of mens rea for 86 years simultaneously imply that the State must prove knowledge of possession of a firearm to meet due process under the law; BUT personal knowledge that the defendant is ineligible to possess a firearm is not implied under the statute nor required to convict even though RCW 9.41.047 creates an express statutory obligation to provide notice of eligibility?  How is possessing a gun without knowledge it is there passive nonconduct but possessing a gun without knowledge it is illegal is not passive nonconduct?  How does that flow from the reasoning expressed in Lambert, in which lack of evidence of notice that the passive noncoduct was unlawful was the basis for reversal?  Lambert is the foundation for Blake!

CONCLUSION

Anderson and Blake both recognize that simply possessing a gun is passive nonconduct.  Lambert is largely the basis for the Blake decision.  Lambert requires that laws that criminalize passive nonconduct must also require the State to establish the defendant had actual knowledge that their conduct was unlawful when the law seeks to punish “conduct which would not be blameworthy in the average member of the community.”  Lambert at 229.  The right to bear arms in enshrined in both the Washington State and Federal Constitutions, and thus the average member of the community would not be held blameworthy if they possessed one.  But Washington’s courts have long held that knowledge that possession is unlawful is not required under RCW 9.41.040 nor is it a defense.   And the Legislature has failed to act to correct this.

Thus, the reasoning of Blake holds that the Court’s previous failures to infer actual knowledge that select individuals cannot possess a firearm as part of the Legislature’s statutory intent is fatal to the survival of the statue. Not only has the Court failed to act, it has held that awareness of ineligibility is not statutorily required to convict per RCW 9.41.040 despite a statutory requirement that disqualified individuals be notified of their inability to participate in a constitutional guarantee enjoyed by the general public.  Per the Doctrine of Legislative Acquiescence, not even the Supreme Court can now infer an implied requirement of knowledge of unlawfulness in RCW 9.41.040.  Nor can they follow Division 2’s example in Leavitt and create an affirmative defense for lack of notice or awareness because “A judicially created affirmative defense may ameliorate the harshness of criminalizing innocent nonconduct, but it cannot save an unconstitutional statute.”  Blake. at 531

It therefore stands to reason that Washington’s unlawful possession of a firearm statutes are unconstitutional as they constitute a due process violation.  Defense attorneys representing those accused of unlawful possession of a firearm should move to dismiss the charges and – if nothing else – preserve the issue for appeal.