Are You Prohibited From Possessing A Firearm In Washington State?

The right to possess a firearm is a fundamental right. U.S. Const. Amend II; U.S. Const. Amend XIV; District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 3025 (2010); Wash. Const. Art. 1, §24; State v. Sieyes, 168 Wash.2d 276 (2010). But the law recognizes reasonable regulation.

Federal Law:

Under 18 USC 922(g) federal law makes it illegal for a person to possess a firearm or ammunition if the person:

• was convicted of any felony in Washington state;
• is a fugitive;
• is an addict or illegal drug user;
• is mentally defective or has been committed to a mental institution;
• is an illegal alien;
• is in the US on a nonimmigrant visa;
• was dishonorably discharged;
• has renounced US citizenship;
• is restrained by a court order issued after the person received notice and had an opportunity to participate and concerns an intimate partner or child;
• has been convicted of a domestic violence misdemeanor.

18 USC 922(g). A person must not possess a firearm if any of the prohibiting criteria above apply to him or her.

Washington State Law:

Under RCW 9.41.040 Washington state law also prohibits firearms possession if the person has been convicted or found not guilty by reason of insanity of:

• a “serious offense;”
• any felony;
• Assault in the Fourth Degree Domestic Violence (“DV”);
• Coercion—DV;
• Stalking—DV;
• Reckless Endangerment—DV;
• Criminal Trespass 1—DV;
• Violation of Court Order—DV.

Washington law also prohibits firearm possession if the person:

• has been involuntarily committed for mental health treatment;
• is under eighteen (except as permitted by law under certain circumstances); or
• is out of custody while awaiting a trial, appeal, or sentencing for a “serious offense.”

RCW 9.41.040(1)-(2). A person must not possess a firearm if any of the prohibiting criteria of RCW 9.41.040 above apply to him or her.

It is important to understand that what constitutes a “conviction” for purposes of RCW 9.41.040 is broad. A “conviction” includes a verdict of guilty or a plea of guilty in either the adult or juvenile systems. RCW 9.41.040(3). A “conviction” (for purposes of RCW 9.41.040) even includes dismissals entered after probation or a deferred sentence. RCW 9.41.040(3). Also dismissals entered pursuant to a vacation of a conviction can remain considered as “convictions” that prohibit firearm possession. Op.Atty.Gen. 1988, No. 10.

“Possession” is also a broad concept. The law recognizes possession can be actual or constructive. Actual possession means “personal custody” or “actual physical possession.” Constructive possession exists where a person exercises “dominion and control” over an object or premises where the object is located. State v. Manion, 173 Wash.App. 610, 643 (Wash. Ct. App. 2013). The ability to reduce an object to actual possession is a feature of “dominion and control.” State v. Echeverria, 85 Wash.App. 777, 783 (Wash. Ct. App. 1997). For example, the actual control of a vehicle can be sufficient to establish constructive possession over objects inside the vehicle. See State v. Turner, 103 Wash.App. 515, 532-524 (Wash. Ct. App. 2000). And one can be in constructive possession jointly with another person. Id. at 521. For example, a homeowner prohibited from possessing firearms may unlawfully be in joint constructive possession of a firearm if a roommate or spouse keeps a firearm in the home.

Unlawful possession of a firearm is a serious felony. But the right can be restored in many cases. It is important to make sure the right is restored to avoid the risk of prosecution. If you lost your right to possess firearms you should seek legal advice from an attorney whose practice emphasizes firearm rights restoration. Call Platt, Thompson and Buescher at 360-474-3994 or contact us online to speak with a firearm rights restoration attorney serving Western Washington, Seattle, King County, Oak Harbor and Island, Whatcom, and Skagit counties.