On November 21, 2013, in State v. Jorgenson, a 5-4 majority of the Washington State Supreme Court upheld a man’s conviction for violating a statute which prohibited the possession of firearms while out on bail on a “serious offense.” The category of offenses deemed to be “serious” by this statute ranges widely, from burglary and vehicular assault on the one hand, to more clearly weapons related offenses such as murder, manslaughter and serious assaults on the other hand. Interestingly, the trial judge in the case did not require the surrender of any firearms as a condition of the man’s release, even when specifically asked to do so by the prosecutor.
The majority opinion, authored by Justice Gonzalez, considered the validity of the statute in light of both the Washington constitution (Art. I §24) and the US Constitution (Second Amendment), and found neither constitutional provision was violated by the pretrial firearms possession ban. The court thus upheld Jorgenson’s conviction for violating RCW 9.41.040 (2)(a)(iv).
The dissenters (led by Justice Wiggins) would have struck down the conviction, but would have used the Due Process clauses of each constitution (Art. I, §3 and the Fourteenth Amendment) to accomplish this result. The dissent reasoned that in order to be constitutional, the statute would have to require an individualized determination that a person on bail was so dangerous as to deprive him, at least temporarily, of the right to possess firearms. Since the statute did not require any individualized determination, but had a blanket prohibition on firearm possession while pending trial, it was unconstitutional in the eyes of the four dissenting justices.
The decision is currently available at the court’s website here: