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State’s Gun Law Misfires Old, Minor Offenses Blocking Gun Ownership

Mon., Jan. 23, 1995

Hundreds of Washington residents are committing felonies every day by hunting, targetshooting or carrying their guns. And most don’t even know it.

Some, such as a 30-year-old government worker, will find out when they complete the paperwork required to buy a handgun.

Others, such as a 40-year-old wheelchair-bound Spokane resident, will discover it when they try to sell a gun or check on a concealed weapon permit they’ve had for years.

These two gun owners are victims of a problem the Legislature created last year.

When they tried to crack down on domestic violence, lawmakers stripped people with certain misdemeanor convictions of the right to own a firearm.

The law was designed to keep guns out of the hands of people convicted of serious crimes.

But its language stretched further than the bill’s sponsors had intended. An assistant attorney general has advised that the law applies even to people who were convicted decades ago of such minor offenses as trespassing or malicious mischief.

“The law was well-intended but poorly written,” said Spokane Police Chief Terry Mangan. “The enforcement end of it … is a nightmare.”

Police agencies around the state are not checking old court records and searching for guns to confiscate. But they are turning down concealed weapons permits, denying handgun purchases and advising people with certain criminal records they cannot legally keep their guns.

For gun-rights activists, the new law is both their worst nightmare and a chance to say “we told you so” to anyone who doubts the government’s ability to infringe on gun ownership rights.

“Everybody laughed at gun owners when we said this could happen,” said Dave LaCourse, a spokesman for the Second Amendment Foundation.

Two Spokane cases show how broadly the law is being applied. Both men lost their gun rights even though their convictions have nothing to do with domestic violence or harassment.

The government worker doesn’t want to be identified for fear of losing his job because he technically committed a felony by going hunting last fall.

He is barred from having a gun because of something that happened 11 years ago when he was 19. Cruising with friends and drinking, he got into a fistfight with another teen. He was convicted of simple assault, paid a fine and performed community service.

He hadn’t thought about the case for years - until he filled out a federal form to purchase a handgun three months ago. After the five-day waiting period, he returned to the store. The clerk told him the application had been rejected.

“Everybody looks at me like ‘Oh my God! What did this guy do?”’ he said. He called the Police Department and was told the misdemeanor conviction was on his record.

Not only could he not buy the gun, he was told, but he also couldn’t keep the guns he has owned for years. The concealed weapons permit he has had for several years was revoked.

The wheelchair-bound Spokane resident said he wanted to sell a gun he had owned for many years. A few days later, he got a call from the pawnshop that was buying the gun, canceling the sale.

The Police Department had told the shop the man couldn’t sell the gun because he couldn’t legally own it. He had a 6-year-old conviction for reckless endangerment, a result of a plea bargain when he was charged with driving while intoxicated.

“All I want is my Second Amendment rights back,” said the man, who doesn’t want his name used because he no longer has the guns he kept for protection.

Michael Patrick, a lobbyist for the state Council of Police Officers, estimated that as many as a dozen law officers around the state have been pulled off the street and placed behind a desk because of the law. They, too, have misdemeanor convictions that make it illegal for them to carry a gun.

Lobbyists and legislators say the change was a small part of a large bill that tried to address juvenile crime and domestic violence.

The law said persons convicted of crimes listed in the state’s domestic violence and harassment statutes can’t buy or possess guns. The trouble is that those laws cover such minor offenses as trespassing, malicious mischief and telephone harassment.

The new law also is retroactive, with no restrictions on how recent a conviction must be to void gun rights.

John Wasberg, an assistant attorney general, said the only way to interpret the law is to assume the Legislature knew what it was doing.

“Right now, we have to take (the law) literally,” he said. “A court has a little bit greater power to take what it thinks is a common-sense approach.”

The new law says a person can regain gun-ownership rights by obtaining a certificate of rehabilitation. But statutes do not spell out the procedure for awarding such a certificate to people convicted of misdemeanors - only felonies.

When the Legislature makes a mistake one year, it usually can correct it the next by passing a bill that amends the old bill.

Not this year.

That’s because a popular initiative, “Hard Time for Armed Crime,” will be brought before the Legislature if it has enough valid signatures. Initiative 159 mentions the same domestic violence and harassment statutes.

State law says the Legislature can’t change any statute covered by a pending initiative unless it rejects the initiative and places it, and the change it wants to make, on the November ballot.

That creates a problem for gunrights activists and their allies in the Legislature. They don’t want to jeopardize the initiative.

“As much as we would love to correct the problem, we may be prevented from doing anything until next year,” said Rep. Mike Padden, R-Spokane Valley, chairman of the House Judiciary Committee.

Joe Waldron, lobbyist for the Second Amendment Foundation, said one solution might be to write a separate bill that says persons with certain misdemeanors automatically would have their gun-ownership rights restored after a set number of years.

But even that could be the basis for appeals from people convicted under Initiative 159, if that becomes law, Padden said. The safer course may be to wait a year, when the Legislature could change the gun ownership restrictions with a simple majority and not have to place the change on the ballot, he said.

Someone who loses his or her gun rights under the new law could challenge it, Assistant Attorney General Wasberg pointed out.

But appealing a case through the Supreme Court could take longer than getting a bill through next year’s Legislature, several lobbyists conceded.

Gun owners who are caught in the statute’s restrictions have yet to volunteer for such a project. As the Spokane man who lost his rights over the 11-year-old assault charge said: “I can’t afford that much justice.”

xxxx At issue Among the crimes that can cost you your gun rights are telephone harassment, fourthdegree assault, trespassing, malicious mischief and reckless endangerment.


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