Advance Sheet Summaries for WACDL June 2014

Prepared by Mark W. Muenster

SUPREME COURT CASES

State v. Coley , NO. 88111-1 , decided June 12, 2014

Issues decided: Competency, Self-representation

Reverses Court of Appeals decision regarding the allocation of burden of proof in competency hearings. Coley had argued that once the court had found him incompetent and ordered treatment, the state should have to prove he had regained competence. The Supreme Court holds that the party who challenges competency, in this case the defendant, has the burden of showing, by a preponderance, that he is not competent.

Second issue in the case dealt with the right of self–representation. The trial court properly denied Coley’s motion to represent himself when he was found incompetent to stand trial. After his competence had been restored, his subsequent motion for self –representation was too “equivocal”, and therefore could properly be denied.

The dissent argues that the burden of proof should be on the party challenging the “Status Quo”. After the trial court found Coley in competent and ordered treatment, the status quo was that he was incompetent, and the state should have the burden to show competence had been restored.

State v. Lamar, NO 89060-9, Decided June 12, 2014

Issues: Right to unanimous jury after alternate installed
RAP 2.5 manifest constitutional issue

Jury deliberations began on a Friday, and then on Monday, one juror became ill and could not continue. The trial court seated the alternate, and then instead of simply instructing the jury about their duty to deliberate in the standard WPIC instruction, told the remaining 11 jurors to get the new person “up to speed” about the state of deliberations up to that point. Defense counsel did not object to this oral admonition.

The court first finds that the error can be reviewed despite an objection. The test used is the most important part of this case:

The defendant must make a plausible showing that the error resulted in actual prejudice, which means that the claimed error had practical and identifiable consequences in the trial.
…”[T]o determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.”
“If the trial court could not have foreseen the potential error or the record on appeal does not contain sufficient facts to review the claim, the alleged error is not manifest.”

The court finds the error reviewable under this test, and then proceeds to hold that the judge’s off the cuff oral instruction violated the right to a unanimous verdict. The state’s argument that polling satisfied the unanimity requirement is rejected because there was no way to tell how much influence the previous Friday’s deliberation had on the final result.

The state apparently did not make an argument about harmless error, so the court does not find any.

State v. KLB,  No.  88270-3, decided June 26, 2014

Prosecution for making a false statement to a public servant. Juvenile Metro rider gives a false name to a “Fare enforcement officer”, aka  “FEO.”

The majority analyzes the statute using two canons of statutory construction, and holds that FEOs are not public servants within the meaning of the statute.

The dissent  (perhaps Justice J. Johnson’s swan song) uses the same two canons and comes to the opposite conclusion. Justice Johnson also helpfully suggests a legislative “fix” for the gap in the statutory language.

Justice Madson’s dissent wonders: “In a time of fiscal austerity, it is
surprising that King County elected to use its resources to prosecute a young man for his apparent lack of candor with uniformed officers after being informed that Sound Transit no longer accepted bus transfers as legitimate fare. The use of considerable public resources to prosecute such a minor infraction, especially one that can easily be
understood as a crime of poverty, is remarkable.”

In Re Cross,  No. 79761-7, decided June 26, 2014

PRP following affirmance of Cross’s death penalty on direct review.

Cross argued some of his statements were improperly admitted, and the court agrees, but finds that this was harmless error. There is excellent and useful language in this part of the opinion regarding the assertion of the right to remain silent, and whether police conduct was “interrogation” under Rhode Island v. Innis.

Cross argued that his trial lawyers were ineffective due to insufficient experience. The court rejects this argument after detailing their training and experience. They were not, at the time of the appointment, on the list of qualified lawyers for a death case.
The court also rejects claims of inadequate investigation by the defense team. It holds that their concession that one of his statements was admissible was a reasonable tactical decision. The court rejects a claim that the lawyers improperly advised him about his Alford plea, and allowed him to state that he thought there was a reasonable possibility that he would be found guilty of premeditated murder.  The court also rejects a claim that defense counsel conceded premeditation at the penalty phase and also the common scheme aggravator. The court also rejects a claim that defense counsel did not effectively argue the evidence of childhood brain injury.

Defense counsel introduced evidence that Cross owned guns, which would be prohibited if the state had tried to offer the evidence under State v. Rupe. This was not ineffective tactics, however, since the evidence was offered to show lack of planning on Cross’s part. The court also discusses, at least minimally, other claims of ineffective assistance and finds either that they were legitimate tactical or strategic decisions and/or that no prejudice had been shown:

Admission of DJ Watt’s criminal history (Defendant’s son)
Admission of DV evidence
Evidence of job loss

Evidence of malingering

Failure to request instruction on premeditation
Failure to request instruction on Alford Plea
Failure to request instruction on medical care

Failing to object to several aspects of prosecutor’s closing argument
Arguments on expert testimony

An attack on the constitutionality of the death penalty itself, which was litigated in Cross’s direct appeal, is rejected on procedural grounds.

COURT OF APPEALS CASES

State v. Harrison, NO. 31109-1-III, Decided June 3, 2014

Prosecution for unlawful possession of firearm in the second degree. Harrison had been convicted of a disqualifying felony in California. He had, however, gotten a California Certificate of Rehabilitation, pursuant to Penal Code § 4852.13(a). Our firearm statute says a person cannot be convicted of UPOF  if “the conviction has been the subject of a … certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted.”

After reviewing the procedure for obtaining the California certificate, the COA concludes that the CA certificate of rehabilitation fits within the identical term used in our firearm statute, reverses the conviction and dismisses.

The dissent argues that since the Certificate of Rehabilitation would not be enough to restore firearm rights in California (a full pardon is apparently required), it should not furnish a shield against prosecution in Washington.

State v. Mercado, 31180-5-III, Decided June 5, 2014

Prosecution for possession of a controlled substance. The defendant challenges the court’s order for AIDS testing, based on a conviction “associated with” hypodermic needles.

COA reverses and remands to trial court to make findings about whether Mercado’s offense involved the use of hypodermic needles.

The court rejects an invited error argument, based on the fact that defense counsel’s plea form had the box checked regarding this issue. The court notes that the paragraph is conditional in the sense that the court has to make a finding that the offense involved hypodermic needles.

The court also reject’s the state’s argument that the error was not raised at the trial court level on the basis that an illegal sentence may be challenged for the first time on appeal.

The court interprets the statute to require the trial court to make a finding that the defendant’s offense involved the use of a needle, not just that the generic crime might involve the use of a needle.

Post Conviction Review of Shundrae Cage, No. 31848-6-III, decided June 3

Review initiated by DOC of a trial court order granting a furlough to a defendant serving a prison sentence.

DOC argued that only it, and not the trial court, had authority to authorize a furlough.

The statute authorizes DOC to grant furloughs, in RCW 76.66.12. There is no parallel provision for trial courts to grant furloughs, and case law has restricted their ability to modify a judgment.

The COA agreed with DOC and reversed the order granting the furlough.

State v. Magnano, No. 70017-7-I, Decided June 9, 2014

Prosecution for robbery. The jury was allowed to listen to a 911 call involving the victim during deliberations, in the courtroom.

Issue:   Did the rehearing of the 911 CD during deliberations violate the open court provision of the constitution?

Holding:          The panel holds that the proceeding was not one required to take place in open court, because jury deliberations are supposed to be secret. So the defendant fails to show that that the experience prong of State v. Sublett, 176 Wn. 2d 58 (2012) would require this rehearing of evidence during deliberations to be in open court. The panel also adds that the “logic” prong of Sublett is not satisfied as there is no logical basis for public scrutiny of jury deliberations.

State v. Mollet, No. 71433-3-I, decided June 9, 2014

Prosecution for rendering criminal assistance in the first degree. Mollet was with Blake, who shot a police officer during a traffic stop. The police found Blake’s truck on property where Mollet was spending the night. She falsely told them she did not know him, was not present at the shooting, and then gave an alibi for herself for the night of the shooting.

During the trial, the court admitted evidence of a “White Power memorial” to Blake that Mollet had in her cell.

Issue:   Was the evidence sufficient to support the conviction for rendering criminal assistance?

Did the court abuse its discretion in admitting the “white power” evidence?

HOLDING:    The panel holds that the false disavowal of knowledge of Blake and the shooting, coupled with the false alibi, supports a conviction under the “harbors or conceals” prong of the statute but not under the “deception” portion of the statute.

In reaching this decision, absent any evidence that the false statements slowed up or hindered the investigation, the court necessarily holds that the state has no burden to prove that the false statement impaired the investigation:

“It is sufficient that the evidence, viewed in a light most favorable to the State, supports a reasonable inference that Mollet intended to conceal Blake's trail by lying about the true link between Blake, the Sidney Road property, and the truck found there.”

Compare with:   State v. Budnick, 173 Wn. 2d 727 (2012) prosecution under the deception prong.

Admission of the “white Power” evidence was for the purpose of showing Mollet’s affinity for Blake, and therefore not an abuse of discretion since it was relevant to her intent to conceal him, which was certainly an issue at trial.

State v. Powell, No. 43585-3-II, filed June 10, 2014

Prosecution for voyeurism and possession of depictions of child pornography.

Powell challenged the seizure of materials relating to the investigation of the murder of his son’s wife from his computer and home. Specifically, he challenged whether there was a nexus between the materials the police sought, and criminal activity. The court finds that the journal entries of the wife, which Powell had told the media that he possessed, had a nexus to the murder investigation.

The state cross–appealed the dismissal of the depiction charges. The trial court had apparently relied on the pre–2010 definition of the crime in two earlier cases. The COA panel points out that the 2010 amendment uses the word “depictions” rather than “exhibitions,” which changes the intent from the viewer to the person who took the images.  The amendment also allowed liability when the person depicted had no part in the creation of the image, such as in this case, when the photos were taken surreptitiously. In this case it happened to be the same person who had created the images and viewed them, so they hold that intent to stimulate the viewer could be found under the circumstances of how these pictures were taken and stored.

State v. Browne, No. 31156-2-III decided June 12

Prosecution for manufacture of marijuana

Browne was a  grower and provider for a MJ patient. He had more than 15 plants. He wanted to present evidence that more plants were medically necessary to produce a 60-day supply. The trial court excluded this testimony, on the assumption that the WAC (Former WAC 246-75-010) allowed more processed marijuana than the presumptive amount, but not more plants.

COA reverses, and remands for new trial at which the defendant can produce evidence of the medical necessity for additional plants. In a footnote, the court says it was not ruling in whether medical testimony was necessary to establish that the patient was a qualified medical marijuana patient.

State v. Ramos,  No. 30150-8-III, published June 12, 2014

Prosecution for theft.

As a young adult, Ramos was convicted of theft in the first degree in 1997. He did not appeal. In 2011, when starting the process to become a citizen, he was told this conviction would lead to his deportation. He filed a motion to vacate the plea.

The trial court ruled the motion to vacate was time barred and transferred it to the COA as a PRP. Ramos then also filed a notice of appeal from the original conviction, based on the fact that he had never been advised then of the right to appeal. The two actions were consolidated.

The court holds Ramos IAC claim under Padilla fails, but not because it was untimely. It fails because the consequences of the conviction were not “clear.” Theft is only an aggravated felony if the sentence is more than five years, or if it involves a theft of $10,000 involving fraud and deceit. In this case, there was no fraud or deceit, and the sentence was 45 days. Because the consequences were not clear, the duty imposed in Padilla was not violated.

State v. Kinzle, No. 69451-1-I, filed June 16, 2014

Prosecution for two counts of child molestation in the first degree.

Complaining witnesses were 6 and 4 at the time of the charged incidents. Both were interviewed and their hearsay statements admitted at trial. Both were found competent to testify. The younger child was not asked by the prosecutor to testify about the incident on direct, and was not cross–examined about it.

COA reverses this count, on the basis that Kinzle was denied the right to full cross–examination of the younger girl. A review of similar cases shows that if the witness claims no memory of the event, that gives a meaningful opportunity for cross, whereas if the witness is never asked about the incident, the defense is put in the uncomfortable and untenable position of doing direct with the witness.  The panel says that the latter situation is not an opportunity for “full and effective cross–examination”.

Challenges to the “duty to convict” language and “Abiding belief” language in the instructions are quickly disposed of.

State v Kindell,  No. 44086-5-II, decided June 17

Prosecution for first degree burglary and unlawful possession of a firearm second degree.

Defendant was at a girlfriend’s house in violation of a no contact order. He fled when the police were coming to another friend or acquaintance’s house, who left shortly after he came in. She had guns in the house, which he apparently moved while negotiating with the police for his surrender.

The to convict instruction for the burglary charge had the standard language requiring the jury to find the intent to commit a crime against a person or property therein. The jury very logically asked whether unlawful possession of a firearm could be a predicate offense. The judge answered the query by saying they had to decide whether it was or not. Defense counsel argued that whether it was a crime against persons was a matter of law, but ultimately did not object to the formulation of the answer. He renewed the objection in a motion to arrest judgment.

COA holds that unlawful possession of a firearm is not a crime against persons or property as a matter of law, and reverses the burglary conviction. Although the error was not specifically objected to, the argument defense counsel made against the initial answer, and the motion in arrest of judgment preserved the issue enough for the court to take review under RAP 2.5.

State v. Rocha, No. 32064-2-III, decided June 17, 2014

Interlocutory appeal  sought by the State, regarding the recusal of trial judge in Grant County in an aggravated murder case.

Appointed defense counsel learned that his firm had accepted a case involving the judge’s daughter, in an unrelated matter, in another county. He told the prosecutor of his intention to ask the court to close the courtroom when he conveyed this information to the judge, not in a motion to recuse, but for the judge to consider whether there might be a conflict of interest. The court agreed to close the courtroom to hear the information. The court sealed the transcript of the hearing.

Subsequently, the court reversed itself regarding the closure, but also signed an order of recusal. The state sought discretionary review of the decision to close the courtroom in connection with the recusal decision.

The panel concludes that because defense counsel was not seeking a decision by the trial judge, but was only alerting him to a potential conflict, the constitutional right to an open courtroom did not attach to this proceeding. The court notes that lots of recusal decisions are made off the record, or informally, so that the experience prong of Sublett is not implicated.

State v. Harrington, NO. 30834-1-III decided June 17

Prosecution for first degree kidnapping.

Defendant attacks sufficiency of evidence, and also argues the statute is vague. While acknowledging that   evidence of intent to inflict extreme emotional distress was a close call, the court affirms the conviction.

The analysis of the vagueness issue waxes a little poetic, but the court upholds the statute.

An IAC claim is dealt with in the unpublished part of the decision.

State v. Terry, No. 31094-9-III, decided June 19

Prosecution for theft of a vehicle and possession of a stolen vehicle, and resisting arrest.

The trial judge invited the jury to ask questions. The judge permitted a question to the arresting officer about whether the defendant seemed surprised when he was arrested, or asked why he was being arrested. The state then used the answer, basically, “No” to argue that the jury could infer guilt. i.e. that the defendant knew why he was arrested because he had stolen the vehicle.

No objection was made to the court’s allowance of the question, or the prosecutor’s argument, so the first hurdle to review was whether the error was of constitutional magnitude. The panel finds it was.

The state argued that the question was about pre–arrest silence, which is now permitted, under the Federal Constitution at least, since the plurality decision in Salinas v. Texas, 133 S. Ct. 2174,186 L. Ed. 2d 376 (2013). The panel rejected that argument since the form of the question was framed in terms of response to the arrest, so it was not really about pre–arrest silence.

The use of the post–arrest silence as substantive evidence of guilt is subject to nuances in our case law which are well laid out in the opinion.  See e.g. State v. Burke, 163 Wn.2d 204, 213, 181 P.3d 1 (2008) and State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002)The strongest case of improper use is obviously what happened here, the direct argument made by the prosecutor.

The court then conducted harmless error analysis and found the error not harmless, except as to the resisting arrest charge, for which there was overwhelming evidence.

State v. Stacy, 71437-6-I (decided in May, published June 4)

Prosecution for three assaults (Second, third and fourth), arising out of an ILWU party at which copious amounts of alcohol were served. The defense was involuntary intoxication. The defendant believed something had been put in one of his several drinks. The court gave instructions on both involuntary intoxication and voluntary intoxication. The court also answered a jury question without Stacy being present.

Panel holds that evidence of specific acts of conduct were inadmissible (offered by the defense to show peacefulness), that the voluntary intoxication instruction was not erroneous, that the involuntary intoxication was erroneous but harmless, and that Stacy did not have a constitutional right to be present at the time the court prepared and submitted its answer to the jury question, which related to when defense counsel was hired.

State v. Swanson, No.   69618-1-I,  Decided June 23, 2014

Prosecution for felony indecent exposure (with a prior as the aggravator)

Defendant charged with masturbating while waiting for coffee at a bikini barista drive through coffee shop.

Issue:   did the prosecutor commit misconduct during argument, and if so was it reversible error?

Court finds the prosecutor did misstate the law during rebuttal argument, regarding the intent requirement. But the court finds it harmless, because the defense did get to argue its own erroneous interpretation of the statute, and the evidence was overwhelming, suggesting that the misconduct did not have a substantial likelihood of affecting the outcome.

State v. Howard, No. 32157-6-III decided June 24, 2014

Prosecution for attempted first degree murder, assault in the first degree, and unlawful possession of a firearm.

The trial court conditionally vacated the assault 1 charge on the basis it merged with the attempted homicide, but indicated it would be revived if the attempted murder was vacated on appeal.

The court also imposed a lifetime no contact order with defendant’s children who were present at the time that he tried to shoot their mother.

COA holds that it violated double jeopardy to “conditionally” vacate the assault 1, but noted that if the attempted first degree murder had been vacated on appeal, the assault would be revived, citing State v. Turner, 169 Wn.2d 448, 454,238 P.3d 461 (2010).

The court also remands on the no contact order issue, holding that there was no basis for a lifetime ban and that the children could make up their own minds about contact with their father when they got older.

State v. Berniard, No. 42579-3-II, decided June 24, 2014

Berniard is the last of four co–defendants in a home invasion robbery and homicide and the only one to win a new trial.
One of the jurors was experiencing distress during the deliberations, and sought out the help of the “jury debriefer”. This came to the attention of the court, who ultimately dismissed the juror on the state’s motion.

The panel holds that the heightened test of State v. Elmore had to be applied here despite the fact that there was no accusation of nullification by the juror. The heightened test requires that the judge either allow deliberation or declare a mistrial where there is “any reasonable possibility” that the reason for the inquiry about the juror stems from her opinions on the merits of the case, in order to protect the constitutional right to a unanimous verdict and an impartial jury. Otherwise, holdouts might be weeded out systematically.

Here some of the juror’s comments to the “debriefer” suggested she was a holdout, and that was why she was distressed. So the use of Elmore was appropriate, and the court erred in excusing the juror. This is structural error, and there is no test for harmlessness.

Berniard also wins a second critical issue: the testimony of co- defendants tending to implicate him as the fourth participant is to be excluded at the retrial on Confrontation Clause grounds. This is definitely worth a leisurely and thorough reading.

Judge Johansen concurs in the result only.

State v. Green, No. 43632-9-II decided June 24, 2014

Prosecution for second degree murder, defendant found guilty of manslaughter.

Older couple with a long history of domestic violence quarrel, then he tells her to bring him his gun. He dies of a gunshot wound. She tells police and her son that she shot him.

Issues: Corpus delicti regarding her statements
Admissibility of PTSD and battered person syndrome
Defendant’s proposed “suicide” instruction

The panel holds that there was sufficient other evidence of a crime to allow defendant’s statements in, chiefly the inferences from blood spatter which suggested he was not holding the trigger. The court notes that of the six factors cited by the state, only the last two support the corpus finding.

The panel holds that it was error to exclude expert testimony regarding PTSD and battered person syndrome. The latter was especially important here because victims of domestic violence have a tendency to blame themselves if something goes wrong in the relationship.

A non–WPIC instruction proposed by the defense regarding the victim’s suicide is not approved by the panel.

Judge Hunt dissents and would have upheld the trial court’s exclusion of the expert testimony, mostly on the theory that it would invade the province of the jury to determine the defendant’s credibility.

State v. Graham, No. 31891-5-III

Prosecution for trafficking in stolen property. The state appeals the dismissal of the charge pursuant to Knapstad.

Graham walked into Walmart, put several items in her basket, went to customer service and claimed she had bought one of them. Despite not having a receipt, the store gave her credit, which she then used to buy one of the other items in her basket. Then she returned the next day and exchanged this item for cash.

Instead of charging garden variety theft, (which might have been only a misdemeanor) the state charged her with trafficking in stolen property. The trial court dismissed, ruling that the two transactions (the original presentation to get the gift card, and the subsequent refunding to get cash, did not fit within the statutory   definition of “trafficking in stolen property.”

COA affirms the dismissal. The analysis hinges on the fact that the item initially traded in was not “stolen property”. The analysis gets a little trickier with the second refund transaction when she proffers the kit back for cash. The panel follows a Florida case and reasons that “using” stolen property (the stealthily acquired kit) is not “trafficking” in it. Again, it could have been charged as theft, but was not.

State v. Harris, NO. 69729-3-I, decided June 23, 2014

Prosecution for felony hit and run and driving while suspended.

Harris hit a pedestrian wearing dark clothing who was crossing mid block on a busy street. He did not remain at the scene. Another car also hit her, so the prosecutors elected not to try for vehicular homicide and settled on the Class B version of the felony hit and run statute.

The court ordered restitution, but attached that order to the driving while suspended charge which accompanied the hit and run charge. This was because of the decision in State v. Hartwell, which holds that restitution cannot be made part of a sentence on a hit and run charge.

Harris appealed the restitution order, and Division One affirms. The panel holds that Washington’s test for restitution is a factual “but for” test, not a legal causation test. Here “but for” the fact that Harris was illegally driving, the pedestrian would not have been killed. Contrary decisions from other states are rejected because their legal test for the connection with the crime is more exacting.

State v. Reeder, NO. 69226-7 I, decided June 23, 2014
Prosecution for 14 count of theft and securities fraud (each)

Conflict of interest issue:

Reeder argued that his lawyer had a conflict because a member of his firm had consulted with Reeder’s sister. The court concludes there was no evidence of a conflict as to the two matters, and Reeder also cannot demonstrate any prejudice.

Special inquiry judge subpoena for records:

The state employed a special inquiry judge proceeding to obtain Reeder’s bank and credit card records. The court first questions whether the issue can be raised because some of the arguments made on appeal were not made below, but does not specify why the motion to suppress was not obviously sufficient to do this. The court concludes there is a constitutional privacy interest in the bank records and thus reaches the merits of the issue.

Does the standard for the issuance of special inquiry have to be probable cause, or “reason to believe” in order to satisfy Art I Sec. 7’s ”authority of law” requirement?

The court holds that the standard is reasonable suspicion, rather than probable cause, because part of the reason for the special inquiry procedure is to establish probable cause that a crime has been committed.

Does the special inquiry judge process have to comply with the open courts standard of Art. I §10?

The court analogizes to regular grand jury proceedings and holds that the experience and logic tests of Sublett do not support the conclusion that special inquiry judge proceedings should be open to the public, just as grand jury proceedings are not.

Statute of limitations:

Reeder argued that the longer statute for securities fraud conflicted with the shorter general statute and so the shorter one should control. The court says where there is a special statute, such as securities fraud here, its statute of limitations controls.

Reeder also argued that the statute ran on the theft counts. The statute was amended in 2009 from three years to six. The statute had not run at the time of the extension. So the newer and longer statute applied.

The court also points out that the state charged, and the jury found, that this was a continuous course of conduct, which also had the effect of extending the statute of limitations.

Double Jeopardy:

Reeder argued that the unit of prosecution for the security fraud cases was the overarching scheme to defraud. The court analyzes the statute, with its emphasis on “every sale” or “each sale” to indicate legislative intent to punish each loan transaction separately.

Reeder’s similar argument that the unit of prosecution for the theft cases was the overarching theft, relying on State v. Turner, is rejected by the court. Turner had four separate types of schemes, and a count was based on each. Here there were a number of discrete transactions, which the prosecutor was not required to aggregate.

It is not clear from the opinion whether Reeder ever argued that the theft and securities fraud transactions were the “same criminal conduct.”

Seattle v Evans, No. 67816-7-I, decided June 30, 2014

Prosecution for carrying a dangerous knife, under Seattle ordinance

To be “dangerous” a knife must be more than 3.5 inches and a fixed blade. Evans argues that the Seattle ordinance was unconstitutional under both Art. I §24 of the Washington constitution and under the Second Amendment to the United States Constitution.

The panel holds that Seattle v Montana, a plurality Supreme Court opinion from 1996 controls the state constitutional issue. The narrowest interpretation of the several opinions in Montana is that a knife is not “arms” and therefore not protected at all under Art. I, §24.

On the Second Amendment issue, the court first determines what level of scrutiny applies. The US Supreme court decision in District of Columbia v.  Heller did not decide this although Heller did reject the “rational basis” and an “interest balancing” approach. The panel decides that intermediate scrutiny is appropriate:

"A law survives intermediate scrutiny if it is substantially related to an important
government purpose." Phrased differently, a Seattle ordinance burdening an
individual's Second Amendment rights "passes constitutional muster if it is substantially related to the achievement of an important government interest."

The panel reasons that public safety is an important government interest, and since the ordinance bans only certain kinds of knives, and does not affect guns, it has not foreclosed the possibility of using a weapon in self-defense outside of the home. Thus it upholds the ordinance against the Second Amendment challenge.