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AGO 1988 No. 10 - May 17, 1988
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

FIREARMS‑-CRIMES‑-MENTAL ILLNESS 

            1.  A person who has been convicted of a crime of violence as defined in statute, or a felony in which a firearm was used or displayed, or a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction, remains ineligible to receive a license to carry a concealed pistol in any of the following circumstances: 

            a.         the person has received a suspended sentence, the suspended sentence has terminated and the person has had civil rights restored pursuant to RCW 9.92.066; 

            b.         the person has completed parole and has received a certificate of discharge pursuant to RCW 9.96.050; 

            c.         the person has completed sentence and received a certificate of discharge pursuant to RCW 9.94A.220; or 

            d.         the record of the person's conviction has been vacated pursuant to RCW 9.94A.230. 

            2.  A person who has been convicted of a crime of violence as defined in statute, or a felony in which a firearm was used or displayed, or a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute or another jurisdiction, and has been placed on probation, may or may not be eligible to receive a license to carry a concealed pistol upon completion of probation and dismissal of the indictment or information against him pursuant to RCW 9.95.240, depending on the crime involved. 

            3.  A person who has been subject of a period of confinement for mental illness pursuant to RCW 71.05.320 is ineligible to receive a license to carry a concealed pistol. 

            4.  A person with a record of commitment for criminal insanity pursuant to RCW 71.05.320 is ineligible to receive a license to carry a concealed pistol.

                                                              - - - - - - - - - - - - -

  [[Orig. Op. Page 2]] 

                                                                   May 17, 1988 

Honorable Cliff Bailey
State Senator, 39th District
902-1/2 First Street
Snohomish, WA 98290 

Cite as:  AGO 1988 No. 10                                                                                                                

 Dear Senator Bailey:

             By letter previously acknowledged, you requested our opinion on several questions concerning the eligibility of certain criminal offenders and certain persons who have a history of mental illness to receive a license to carry a concealed pistol.  We paraphrase your questions as follows:

             1.         Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction and whose sentence has been suspended, eligible to receive a license to carry a concealed pistol, upon termination of the suspended sentence and restoration of civil rights pursuant to RCW 9.92.066?

             2.         Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction eligible to receive a license to carry a concealed pistol, upon completion of parole and issuance of a certificate of discharge pursuant to RCW 9.96.050?

             3.         Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction eligible to receive a license to carry a concealed pistol, upon completion of sentence and issuance of a certificate of discharge pursuant to RCW 9.94A.220?

              [[Orig. Op. Page 3]]

             4.         Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction eligible to receive a license to carry a concealed pistol, upon vacation of the record of his conviction pursuant to RCW 9.94A.230?

             5.         Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction and who has been placed on probation, eligible to receive a license to carry a concealed pistol, upon completion of probation and dismissal of the indictment or information against him pursuant to RCW 9.95.240?

             6.         Is a person who has been subject to a period of confinement pursuant to RCW 71.05.320 eligible to receive a license to carry a concealed pistol?

             7.         Is a person who has a record of commitment pursuant to chapter 10.77 RCW eligible to receive a license to carry a concealed pistol?

             With the exception of question 5, we answer each of your questions in the negative.  We answer question 5 in the manner set forth in our analysis.

                                                                      ANALYSIS

             RCW 9.41.070 governs eligibility for a license to carry a concealed pistol.1/

             That section provides in part:

                         (1) The judge of a court of record, the chief of police of a municipality, or the sheriff of a county, shall within thirty days after the filing of an application of any person issue a license to such person to carry a pistol concealed on his person within this state for four years from date of issue, for the  [[Orig. Op. Page 4]] purposes of protection or while engaged in business, sport of while traveling . . . .  Such citizen's constitutional right to bear arms shall not be denied to him, unless he:

            (a) Is ineligible to own a pistol under the provisions of RCW 9.41.040 . . . .

             RCW 9.41.040 defines the crime of unlawful possession of a short firearm or pistol.  RCW 9.41.040 provides in part:

                         (1) A person is guilty of the crime of unlawful possession of a short firearm or pistol, if, having previously been convicted in this state or elsewhere of a crime of violence[2]/

              or of a felony in which a firearm was used or displayed, the person owns or has in his possession any short firearm or pistol.

                        . . .

                         (3) As used in this section, a person has been "convicted" at such time as a plea of guilty has been accepted or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing, post-trial motions, and appeals.  A person shall not be precluded from possession if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation,  [[Orig. Op. Page 5]] or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

                         (4) Except as provided in subsection (5) of this section, a person is guilty of the crime of unlawful possession of a short firearm or pistol if, after having been convicted of any felony violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, or equivalent statutes of another jurisdiction, or after any period of confinement under RCW 71.05.320 or an equivalent statute of another jurisdiction, or following a record of commitment pursuant to chapter 10.77 RCW or equivalent statutes of another jurisdiction, he owns or has in his possession or under his control any short firearm or pistol.

                         (5) Notwithstanding subsection (1) of this section, a person convicted of an offense other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401(a) and 60.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from ownership, possession, or control of a firearm as a result of the conviction.

             Before turning to your specific questions, we believe it is important to keep in mind two general observations concerning the application of RCW 9.41.040 to criminal offenders.  The first is rather self-evident‑-in enacting the above‑quoted provisions of chapter 9.41 RCW, the Legislature intended to prohibit persons convicted of certain crimes from thereafter owning or possessing a handgun.  Second, the Legislature nevertheless intended to restore to persons convicted of the same enumerated crimes the right to own or possess a short firearm or pistol on the basis of specified post-conviction events.  Thus, if a conviction precluding handgun ownership is the subject of a pardon, annulment, certificate of rehabilitation, or equivalent procedure based on a finding of rehabilitation or innocence, the convicted person lawfully may possess a handgun.  RCW 9.41.040(3).  Similarly, persons convicted of certain crimes precluding possession of a handgun under RCW 9.41.040(1) may lawfully possess such a weapon, upon completion of probation and dismissal of charges under RCW 9.95.240.  See RCW 9.41.040(5).

              [[Orig. Op. Page 6]]

             With this background in mind, we turn to analysis of your specific inquiries.

 Question #1

             Your first question, repeated here for ease of reference asks:

             Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction and whose sentence has been suspended, eligible to receive a license to carry a concealed pistol, upon termination of the suspended sentence and restoration of civil rights pursuant to RCW 9.92.066?

             As we have indicated above, our answer to this question is "no."

             RCW 9.92.0663/

 provides:

             Upon termination of any suspended sentence under RCW 9.92.060 or 9.95.210, such person may apply to the court for restoration of his civil rights.  Thereupon the court may in its discretion enter an order directing that such defendant shall thereafter be directing that such defendant shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.

             The Court of Appeals addressed the relationship between RCW 9.92.066 and RCW 9.41.040 inState v. Thomas, 35 Wn. App. 161, 665 P.2d 914 (1983).  InThomas, the court held that proceedings under RCW 9.92.066 do not preclude use of a prior conviction to establish an unlawful possession charge under RCW 9.41.040.  TheThomas court cited with approval a number of cases standing for the proposition that statutes generally providing for the restoration of civil rights to criminal offenders do not preclude the use of prior convictions for all purposes.  Rather, as the court recognized in Thomas, statutes that restore civil rights primarily are intended to relieve offenders of impediments to prompt and successful reassimilation into society.  TheThomas holding thus suggests a negative answer to your first question.

              [[Orig. Op. Page 7]]

             We believe it is important to note, however, that when Thomas was decided, RCW 9.41.040 was a much shorter, less comprehensive statute than it is today.  Then RCW 9.41.040 merely stated:

             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.  Such person upon being convicted of a violation of this section shall be guilty of a felony and punished by imprisonment in the state penitentiary for not less than one year nor more than ten years.

 SeeLaws of 1961, ch. 124, § 3, p. 1639.

             Thus, whenThomas was decided, RCW 9.41.040 did not define the term "convicted," as it now does.  Nor did the statute address the impact of post-conviction events on its prohibition against owning or possessing a handgun.  These matters were first addressed by the Legislature in section 2, chapter 232, Laws of 1983.  In fact, the entirety of the current version of RCW 9.41.040 was brought into existence by that enactment.

             Consequently, although we find the basic reasoning of Thomas persuasive, we must determine whether its holding has been undercut by the 1983 amendments to RCW 9.41.040.  In our opinion, it has not.  On the contrary, the 1983 amendments of RCW 9.41.040 seem to compel the conclusion that a restoration of civil rights under RCW 9.92.066 does not remove the prohibition against ownership or possession of a handgun contained in RCW 9.41.040.

             First, in defining the term "convicted" for purposes of RCW 9.41.040, the Legislature was concerned primarily with whether the criminal defendant previously had been found guilty of certain offenses.  Neither the nature or severity of the sentence imposed nor the pendency of future proceedings are relevant under the terms of RCW 9.41.040.

             Second, in 1983, the Legislature specifically identified post-conviction events which negate the handgun prohibition of RCW 9.41.040.  In doing so, it established a limited class of such events in RCW 9.41.040(3) and (5).  Restoration of civil rights upon termination of a suspended sentence under RCW 9.92.066 clearly is not within the ambit of RCW 9.41.040(5).  Nor, in our view, is it a procedure contemplated by RCW 9.41.040(3).  Repeated here for ease of reference, that section provides in part:

             A person shall not be precluded from possession if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent  [[Orig. Op. Page 8]]procedure based on a finding of the rehabilitation of the person convicted or the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

 (Emphasis added.)

             The underscored language of RCW 9.41.040(3) has not been interpreted by Washington's appellate courts.  It is, however, very similar to Federal Rule of Evidence 609(c) and its identical state counterpart governing the use of prior convictions for purposes of impeaching witnesses.4/

             Cases construing this language in the context of Fed. R. Evid. 609(c) establish several principles seemingly relevant here.  First, a finding of rehabilitation or innocence is not inherent in a pardon or equivalent procedure.  Watkins v. Thomas, 623 F.2d 387, 388 (5th Cir. 1980); Cf. State v. Serfling, 131 Wash. 605, 610, 230 P.821 (1924).  Second, Fed. R. Evid. 609(c) "reflects a desire to accord controlling consideration to rehabilitation as opposed to executive grace or judicial invalidation."  U.S. v. Wiggins, 566 F.2d 944, 946 (5th Cir. 1978); Wilson v. Attaway, 757 F.2d 1227, 1244 (11th Cir. 1985).  Finally, a pardon for a reason other than subsequent proof of innocence does not extinguish a criminal defendant's prior transgression for purposes of the rule.  Watkins, supra.

             Nothing in RCW 9.41.066 suggests that restoration of civil rights upon termination of a suspended sentence is a procedure based upon a finding of rehabilitation or innocence under RCW 9.41.040(3).

             For these reasons, it is our opinion that proceedings under RCW 9.92.066 do not restore the right to own or possess a handgun to a person otherwise disqualified from ownership or possession under RCW 9.41.040.  It follows that such a person remains ineligible to receive a license to carry a concealed pistol under RCW 9.41.070(1)(a).

              [[Orig. Op. Page 9]]

 Question #2

             We now turn to your second question.  It asks:

             Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction eligible to receive a license to carry a concealed pistol, upon completion of parole and issuance of a certificate of discharge pursuant to RCW 9.96.050?

            RCW 9.96.050 provides in part:

                         When a prisoner on parole has performed the obligations of his release for such time as shall satisfy the board of prison terms and paroles[5]/

             that his final release is not incompatible with the best interests of society and the welfare of the paroled individual, the board may make a final order of discharge and issue a certificate of discharge to the prisoner . . . .  Such discharge, regardless of when issued, shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certification of discharge shall so state.

                        The discharge provided for in this section shall be considered as part of the sentence of the convicted person and shall not in any manner be construed as affecting the powers of the governor to pardon any such person.

             Your second question, much like your first one, essentially in concerned with whether restoration of civil rights pursuant to this statute authorizes ownership or possession of a handgun by a criminal offender otherwise disqualified from ownership or possession by virtue of RCW 9.41.040.

             In our view, the effect of restoration of civil rights under RCW 9.96.050 does not differ in any significant respect from the effect of similar proceedings under RCW 9.92.066, which we considered in connection with your first question.  As with suspension of a criminal sentence under RCW 9.92.066, completion of a period of parole and receipt of a certificate of discharge does not negate the existence of the conviction.  The handgun  [[Orig. Op. Page 10]] prohibition in RCW 9.41.040 turns on the fact of conviction.  Nor do we believe that a certificate of discharge upon completion of parole under RCW 9.96.050 encompasses a finding of rehabilitation or innocence as contemplated by RCW 9.41.040(3).  Our analysis with regard to your first question therefore applies with equal force here.

             We also note that we answered this same question in AGO 1969 No. 5 in the context of the provisions of RCW 9.41.040 as they existed before 1983.  There, we concluded that the handgun prohibition of RCW 9.41.040 continued to apply to a convicted person whose civil rights were restored by a certificate of final discharge issued pursuant to RCW 9.96.050.  Although RCW 9.41.040 was amended substantially by chapter 232, Laws of 1983, those amendments did not alter RCW 9.41.040 in a manner material to our analysis.  We therefore adhere to the conclusion we reached in AGO 1969 No. 5 with respect to this question.

 Question #3

             Your third question asks:

             Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction eligible to receive a license to carry a concealed pistol, upon completion of sentence and issuance of a certificate of discharge pursuant to RCW 9.94A.220?

             RCW 9.94A.2206/

            , part of the Sentencing Reform Act of 1981, provides in part as follows:

            When an offender has completed the requirements of the sentence, the secretary of the department or his designee shall notify the sentencing court, which shall discharge the offender and provide the offender with a certificate of discharge.  The discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state.  Nothing in this section prohibits the use of an offender's prior record for purposes of determining sentences for later offenses as provided in this chapter.  Nothing in this section affects or prevents use of the offender's prior conviction in a later criminal prosecution either as an  [[Orig. Op. Page 11]]element of an offense or for impeachment purposes.  A certificate of discharge is not based on a finding of rehabilitation.

 (Emphasis added.)

             Although we believe our analysis of your first question dictates a negative response to this inquiry as well, we need not rely on that analysis.  The underscored language of RCW 9.94A.220 clearly establishes that a certificate of discharge issued pursuant to RCW 9.94A.220 does not preclude the use of a prior conviction as an element of a subsequent criminal offense.7/

              Nor, in our opinion, is RCW 9.94A.220 a procedure of the nature contemplated by RCW 9.41.040(3).  A certificate of discharge issued pursuant to RCW 9.94A.220 certainly is not based on a finding of innocence.  And by its own terms, RCW 9.94A.220 disclaims that its discharge certificate is based on a finding of rehabilitation.  Thus, a person otherwise disqualified from ownership or possession of a handgun under RCW 9.41.040, who receives a certificate of discharge and restoration of civil rights under RCW 9.94A.220, is not authorized to own or possess a handgun by virtue of RCW 9.41.040(3).

 Question #4

             Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction eligible to receive a license to carry a concealed pistol, upon vacation of the record of his conviction pursuant to RCW 9.94A.230?

             RCW 9.94A.2308/

             established procedure and sets forth certain limited circumstances under which an offender's record of conviction may be vacated, following issuance of a certificate of  [[Orig. Op. Page 12]] discharge to the offender under RCW 9.94A.220.  Your question is concerned with the consequences of vacating a record of conviction under RCW 9.94A.230.  Those consequences are set forth in RCW 9.94A.230(3) which provides:

            Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the the offense shall not be included in the offender's criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense.  For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime.  Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

 (Emphasis added.)

             The underscored language of RCW 9.94A.230(3) makes clear that vacation of a record of conviction is not intended to preclude use of that conviction in a subsequent criminal prosecution.  Nor does RCW 9.94A.230(3) indicate that vacation of a record of conviction is based upon a finding of rehabilitation or innocence.  Accordingly, such a vacation does not bring to bear the authorization to own or possess a pistol contained in RCW 9.41.040(3).

             For purposes of your question then, if a person is convicted of a crime enumerated in RCW 9.41.040(1) or (4), that conviction properly may be the basis for a charge of unlawful possession of a short firearm or pistol, regardless of whether the record of that conviction has been vacated under RCW 9.94A.230.  Such an offender would remain ineligible to own or possess a handgun under RCW 9.41.040 and, consequently, would remain ineligible to receive a license to carry a concealed pistol under RCW 9.41.070.

 Question #5

             Repeated here for ease of reference, your fifth question asks:

             Is a person who has been convicted of (a) a "crime of violence," as defined in RCW 9.41.040; (b) a felony in which a firearm was used or displayed; or (c) a felony violation of Washington's Uniform Controlled Substances Act or an equivalent statute of another jurisdiction and who has been placed on probation, eligible to receive a license to carry a concealed pistol, upon  [[Orig. Op. Page 13]] completion of probation and dismissal of the indictment or information against him pursuant to RCW 9.95.240?

             RCW 9.95.2409/

             provides as follows:

             Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.  The probationer shall be informed of this right in his probation papers:  Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.

 (Emphasis added.)

             That of its own terms, RCW 9.95.240 would not preclude use of a prior conviction to establish an unlawful possession charge under RCW 9.41.040 is clear from its proviso, emphasized above.  It is similarly clear from the very existence of RCW 9.41.040(5) that a dismissal of charges upon completion of probation under RCW 9.95.240 is not a procedure contemplated by RCW 9.41.040(3)‑-i.e., one based on a finding of rehabilitation or innocence.10/

              As we previously noted, however, persons convicted ofcertain crimes precluding possession of a handgun under RCW 9.41.040(1) nevertheless may lawfully possess such a weapon, upon completion of probation and dismissal of charges under  [[Orig. Op. Page 14]] RCW 9.95.240.  That is so not because of RCW 9.95.240 but because of RCW 9.41.040(5), which provides:

             Notwithstanding subsection (1) of this section, a person convicted of an offense other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401(a) and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from ownership, possession, or control of a firearm as a result of the conviction.

             In essence, RCW 9.41.040(5) operates in the following fashion.  A person convicted of one of the offenses specifically enumerated in RCW 9.41.040(5) is precluded from ownership or possession of a short firearm, regardless of whether a person received a probationary sentence and a dismissal of charges under RCW 9.95.240.  On the other hand, the Legislature has determined that a person convicted of an offense other than one specifically enumerated in RCW 9.41.040(5), who receives a probationary sentence and dismissal of charges pursuant to RCW 9.95.240, may lawfully own or possess a short firearm or pistol.  It follows that as to persons in this latter category, RCW 9.41.070(1)(a) poses no bar to eligibility for a license to carry a concealed pistol.11/

             [[Orig. Op. Page 15]]Question #6

             Your final two questions ask whether certain persons who have a history of mental illness are eligible to receive a permit to carry a concealed pistol.  Before we address your specific inquiries, we note that the same basic statutory framework applies to these questions as applied to your questions concerning criminal offenders.  That is, a person ineligible to own a handgun under RCW 9.41.040, whether by reason of criminal history or otherwise, is ineligible to receive a permit to carry a concealed pistol.  RCW 9.41.070(1)(a).  And, as we previously noted, RCW 9.41.040 defines persons ineligible to own a pistol in terms of the crime of unlawful possession of a short firearm.

             We now turn to your sixth question.  It reads:

             Is a person who has been subject to a period of confinement pursuant to RCW 71.05.320 eligible to receive a license to carry a concealed pistol?

            RCW 71.05.320 is part of Washington's statutory scheme governing treatment of persons with mental disorders.  Under RCW 71.05.320, a court may involuntarily detain a person suffering from a mental disorder for a period not to exceed 90 days.12/

               [[Orig. Op. Page 16]]

             RCW 9.41.040(4) specifically provides that a person who owns, possesses, or controls any short firearm or pistol, after having been subject to any period of confinement under RCW 71.05.320, is guilty of the crime of unlawful possession of a short firearm or pistol.  Thus, a person who has been confined pursuant to a 90-day commitment proceeding under RCW 71.05.320 apparently is ineligible for a permit to carry a concealed pistol under RCW 9.41.070(1)(a).

            We note, however, that RCW 71.05.450 provides in part:

             No person shall be presumed incompetent or lose any civil rights as a consequent of receiving evaluation or treatment for mental disorder, either voluntarily or involuntarily, or certification or commitment pursuant to this chapter or any prior laws of this state dealing with mental illness.

 RCW 71.05.450 and RCW 9.41.040(4) conflict.  RCW 9.41.040(4) deprives a person committed under RCW 71.05.320 of a civil right‑-the right to bear arms.  RCW 71.05.450, on the other hand, safeguards civil rights in general.

             In our opinion, rules of statutory construction dictate resolution of this conflict in favor of the firearm prohibition contained in RCW 9.41.040(4).  One such rule is that where two conflicting statutes address the same topic, one in a general fashion and the other in a specific fashion, the specific statute will control over the general one.  Pannell v. Thompson, 91 Wn.2d 591, 589 P.2d 1235 (1979).  Here, RCW 71.05.450 relates generally to the rights of persons who receive treatment for a mental disorder under chapter 71.05 RCW.  RCW 9.41.040(4) specifically governs whether such persons retain the right to own or possess a pistol.  The terms of RCW 9.41.040(4), being the more specific of the two statutes, control.  This rule applies with particular force where, as here, the specific statute was enacted later than  [[Orig. Op. Page 17]] the general one.  State v Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972).13/

              Thus, it is our opinion that a person confined for any period pursuant to proceedings for commitment of up to 90 days under RCW 71.05.280 is thereafter ineligible to receive a permit to carry a concealed pistol.

 Question #7

             Your final question concerns the eligibility of persons who have been adjudged criminally insane to receive a permit to carry a concealed pistol.  You ask:

             Is a person who has a record of commitment pursuant to chapter 10.77 RCW eligible to receive a permit to carry a concealed pistol?

             A person may be committed pursuant to chapter 10.77 RCW under two circumstances.  The first is where the person has been acquitted of a crime by reason of insanity and thereupon is found to be "a substantial danger to other persons, or [to present] a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions."  RCW 10.77.110.  The second is where the court finds a criminal defendant charged with a felony to be incompetent.  RCW 10.77.090.14/

              RCW 9.41.040(4) provides in part:

           [A] person is guilty of the crime of unlawful possession of a short firearm or pistol if, . . . following a record of commitment pursuant to chapter 10.77 RCW . . ., he owns or has in his possession or under this control any short firearm or pistol.

             Nothing in RCW 9.41.040 or chapter 10.77 RCW alters this criminal liability.  In our view then, RCW 9.41.040(4) renders a person with a record of commitment pursuant to chapter 10.77 RCW,  [[Orig. Op. Page 18]] as described above, ineligible to receive a permit to carry a concealed pistol under RCW 9.41.070(1)(a).

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

MAUREEN HART
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 

1/The term "pistol," as used in chapter 9.41 RCW, is synonymous with the term "short firearm" and means any firearm with a barrel less than twelve inches in length.  RCW 9.41.010(1).  In this opinion, we use the terms "pistol," "short firearm," and "handgun" interchangeably.

 2/RCW 9.41.010(2) defines the term "crime of violence" for purposes of chapter 9.41 RCW.  It states:

            "(2) 'Crime of violence' as used in this chapter means:

                        "(a) Any of the following felonies, as now existing or hereafter amended:  Any felony defined under any law as a class A felony or an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, manslaughter in the first degree, manslaughter in the second degree, indecent liberties if committed by forcible compulsion, rape in the second degree, kidnapping in the second degree, arson in the second degree, assault in the second degree, extortion in the first degree, burglary in the second degree, and robbery in the second degree;

                        "(b) Any conviction for a felony offense in effect at any time prior to July 1, 1976, which is comparable to a felony classified as a crime of violence in subsection (2)(a) of this section; and

                        "(c) Any federal or out-of-state conviction for an offense comparable to a felony classified as a crime of violence under subsection (2)(a) or (b) of this section."

 3/RCW 9.92.066 applies to felony offenses committed before July 1, 1984.  RCW 9.92.900.

 4/Federal Rule of Evidence 609(c) states:

            "Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence."

 5/The board of prison terms and paroles has been redesignated as the indeterminate sentence review board by RCW 9.95.001.

 6/RCW 9.94A.220 took effect on July 1, 1984.  RCW 9.94A.905.

 7/It seems to us that the Legislature explicitly recognizes in RCW 9.94A.220 what our courts have recognized in other contexts‑-that a general restoration of civil rights to a criminal offender does not necessarily erase a prior conviction or preclude its use in subsequent criminal prosecutions.  Thomas,supraCf State v. Southerland, 43 Wn. App. 246, 716 P.2d 933 (1986).

 8/RCW 9.94A.230, like RCW 9.94A.220, is part of the Sentencing Reform Act of 1981 and took effect on July 1, 1984.  RCW 9.94A.905.

 9/RCW 9.95.240 applies to offenses committed before July 1, 1984.  RCW 9.95.900.

 10/If the Legislature viewed a dismissal of an indictment or information pursuant to RCW 9.95.240 as based on a finding of rehabilitation or innocence, RCW 9.41.040(5) would be unnecessary.

 11/In AGO 1965-66 No. 120, we concluded that a person who secured dismissal of criminal proceedings pursuant to RCW 9.95.240 was not prohibited from receiving a license to carry a concealed pistol under RCW 9.41.070.  We relied in part on that opinion in AGO 1969 No. 5, where we concluded that a person who secured dismissal of criminal proceedings pursuant to RCW 9.95.240 was not prohibited by RCW 9.41.040 from owning or possessing a pistol.

            Both those opinions predate enactment of section 2, chapter 232, Laws of 1983, which altered material provisions of RCW 9.41.040.  See especially RCW 9.41.040(5).  Consequently, they do not reflect the current state of the statute.  Our conclusion concerning the effect of RCW 9.95.240 in AGO 1969 No. 5 also was rejected inState v. Thomas, supra.

            We no longer adhere to those opinions insofar as they address the effect of a dismissal of criminal proceedings under RCW 9.95.240 on the prohibition against owning or possessing a pistol under RCW 9.41.040 or eligibility for a license to carry a concealed handgun.  That is so because the effect of a dismissal of an indictment or information pursuant to RCW 9.95.240 is now governed by RCW 9.41.040(5).

 12/Before a person may be involuntarily detained under RCW 71.05.320, a court or a jury must find that:

            (1) Such person after having been taken into custody for evaluation and treatment has threatened, attempted, or inflicted:  (a) Physical harm upon the person of another or himself, or substantial damage upon the property of another, and (b) as a result of mental disorder presents a likelihood of serious harm to others or himself; or

(2) Such person was taken into custody as a result of conduct in which he attempted or inflicted physical harm upon the person of another or himself, and continues to present, as a result of mental disorder, a likelihood of serious harm to others or himself; or

(3) Such person has been determined to be incompetent and criminal charges have been dismissed pursuant to RCW 10.77.090(3), as now or hereafter amended, and has committed acts constituting a felony, and as a result of a mental disorder, presents a substantial likelihood of repeating similar acts.  In any proceeding pursuant to this subsection it shall not be necessary to show intent, wilfulness, or state of mind a an element of the felony; or

(4) Such person is gravely disabled.

RCW 71.05.280.

            For purpose of RCW 71.05.280, the term "gravely disabled" means a condition in which a person, as a result of a mental disorder:  (a) Is in danger of serious physical harm resulting from a failure to provide for his essential human needs of health of safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care a is essential for his or her health or safety[.]

RCW 71.05.020(1).

 13/RCW 71.05.450 was enacted in 1973.  Laws of 1973, 1st Ex. Sess., ch. 142, § 50, p. 1038.  The current version of RCW 9.41.040 was enacted in 1983.  Laws of 1983, ch 232, § 2, p. 1192.

 14/By definition contained in RCW 10.77.010(6), "incompetency" means that "a person lacks the capacity to understand the nature of the proceedings against him or to assist in his own defense as a result of a mental disease or defect."

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