–by Robert Weinzierl, Attorney at Genesis Law Firm, PLLC
On March 17, 2015, Division II of Washington State’s Court of Appeals weighed in on an interesting gun rights restoration controversy in its seminal Payseno v. Kitsap County opinion. Before March 17, 2015, a person who had lost firearm privileges from a felony offense usually needed to remain conviction free for the five years prior to his or her gun petition. The Court of Appeal’s new rule changed this slightly but meaningfully. The petitioner would only need a five-year crime-free period at any point after the felony conviction, regardless if he or she committed another crime after the five years had run. Essentially, a misdemeanor after the five-period no longer re-sets the clock for a gun restoration petition.
Why the change?
The firearm restoration statute (RCW 9.41.040) is both long and convoluted, and the two above-outline positions stemmed from that. The following was the statutory language primarily in dispute:
“If the conviction or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525 . . . .”
RCW 9.41.040(4)(a)(ii)(A)(italics added). Ultimately the outcome in Payseno v. Kitsap County hinged on the Rule of Lenity, which requires courts to interpret vague criminal statutes in favor of the criminal defendant.
What does this mean if you are trying to restore firearm rights?
The obvious good news is that you should be able to apply for firearm rights restoration even if the petitioner recently committed another crime, so long as he or she meets the statute’s other requirements. The bad news is that the Court of Appeals specifically limited its decision in Payseno v. Kitsap County to the facts of that particular case. Presumably the reasoning from Payseno v. Kitsap County would apply to all similar cases, since the Rule of Lenity would resolve the statute’s ambiguity in favor of every run rights petitioner. But the Court of Appeals left the door open for further argument.