Restoring Gun Rights & Vacating Convictions

We represent clients in criminal cases, including felonies, and restoration of gun rights. INSTRUCTIONS FOR VACATING MISDEMEANOR AND GROSS MISDEMEANOR.
Vacation of a conviction does not automatically restore your right to possess a firearm in Washington State.

King County Lawyers Discuss Washington State Gun Law…D=article21.htm

Reprinted from King County Bar Association Bar Bulletin (September, 2011).

I read KCBA President Joe Bringman’s message in the Bar Bulletin (August, 2011 President’s Page). Many lawyers have the impression that the KCBA is taking political positions that conflict with the conservative principles which animate more than a few lawyers. The President’s comments related to state preemption of local gun control efforts might be commendable as an opinion piece or an expression of his personal opinion. Nevertheless, the fact that he was writing as President to KCBA members raises the issue of whether the President’s Page is an appropriate venue from which to advocate taking a questionable position regarding RCW 9.41.290.

Consider how many lawyers and even judges have CPLs and ask how those of us that “bear arms” as a normal part of our daily routine would be able to navigate our way down the freeway if we have to research the laws of every municipality into which we enter. If it is a challenge for lawyers that are experts when it comes to legal research then what about the non-lawyer that chooses to carry? If judges and lawyers adopt the approach that each man or woman that bears arms also bears the risks of running afoul of a patchwork of confusing laws, the chilling effect will hobble any meaningful exercise of our rights under the U.S. Constitution and SECTION 24 of the Washington State Constitution:

RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

If I go to a park in Seattle using public transportation would I check my gun in with the driver before I get on the bus? If I am walking around Seattle, will the City provide a lock box outside each entrance to a city park the way the courts are required to do by statute? And what about when I park in a municipally owner parking while stopping in a city that has decided to enact legislation prohibiting firearms in vehicles parked in municipal parking lots? The unpredictability and chaos will lead to utter disrespect for the law.

The impact of any potential modification concerning RCW 9.41.290 collides with common sense Local governments are not best situated to determine how to ensure the safety of their citizens. Local lawmakers react to local political pressures often without considering ramifications that involve travelers, visitors and business people that may be carrying large amounts of money with no place to safely store a weapon when they enter an area that restricts firearms. Many states have similar preemption laws and are safer than cities like Chicago where most residents have been prohibited from keeping guns- even in their homes- and the murder rate is out of control. Enacting the President’s proposals for Washington State would create legal chaos and make us less safe!

RCW 9.41.290 states:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

Given the harm all too frequently associated with statist theoreticians, it’s time that we ask whether the benefits provided by our state’s firearms preemption law outweigh any short term political advantages to be gained by modifying state law.

A few years back, the Bar Bulletin published a great article entitled PRYING THE SECOND AMENDMENT’S MEANING FROM THE FOUNDERS’ COLD DEAD HANDS. The well written legal analysis of the Second Amendment was written by a young attorney that started out with negative assumptions about the Second Amendment but she discovered that its provisions are actually very meaningful.

There are presently lawsuits pending in Illinois that will almost certainly establish a right to carry a firearm in many public places. The Washington State Constitution is unequivocal in its legal protection for gun owners and those of us that bear arms. Proposals to modify firearms preemption are actually a giant step back to the patch work laws that have worked to completely deprive many people in Illinois from enjoying a right that residents of most states take for granted; i.e., the right to simply possess a firearm within their own homes!

Things have changed a lot since most of us were in law school. One reason to think soberly and clearly about such proposals is because, as lawyers, we are more likely to be threatened with violence than most people. The threats to judges and prosecutors in particular have been escalating according to a study by the Washington State Board for Judicial Administration (BJA).

See article.

There is no evidence that armed citizens are creating a threat by wearing pistols in public places and a concurring opinion in the NORDYKE V KING case (Ninth Circuit, 2009) contained a strong comment as to how effectively the Second Amendment protects Americans from the promiscuous carnage that occurred during the attacks in Mumbai by terrorists armed with automatic rifles. A few guns at the youth camp in Norway could also have saved many lives. An unarmed officer in uniform was one of the victims in the early stages of that attack.

More lawyers should get involved in the full debate about guns. The issues are serious and the public needs the rigorous analysis lawyers can provide on the subject of gun law, not the kind of superficial analyses that politicians and news media often produce.

Preemption: Washington Cities Violate State Gun Law

Attorneys for various municipalities around Washington State have issued legal opinions that RCW 9.41.290 “only applies to the regulation of firearms themselves” and “excludes regulations that only secondarily affect firearms… that do not embody a punitive regulation”. The Washington State Attorney General’s Office issued a legal opinion last week that thoroughly rebuts such opinions based on Cherry v Metro and another case that dealt with certain narrow issues applied to a venue for a gun show leased from the City of Sequim, washington.

We previously pointed out in a letter dated May 22, 2008, that the so-called “legal authority” on which many jurisdictions are relying is contrary to any reasonable analysis of the law. Incidentally, the City of Federal Way is now in full compliance with state law as of January 8, 2009.

The legislature has put cities and counties in Washington on notice that local governments’ hands are tied when it comes to restricting our gun rights- even inside the building where the jails and police stations are located. If the City can’t disarm you inside City Hall, how can it force you to be defenseless in the City’s Parks? Keep in mind- cities can only enact those laws and ordinances relating to firearms that are specifically authorized by state law.”

There was recently a mass shooting in another state where the attacker shot and killed a uniformed police officer as a prelude to killing several other people during a City Hall meeting. Our state’s legislature has decided that the solution to such scenarios is not to disarm the people but to make sure that many honest people will be armed when violence occurs.

The key case is Cherry v Municipality of Metropolitan Seattle, a case in which a Metro employee was fired for bringing a gun to work. The folks that seek to repeal or subvert the state preemption law assert that Cherry is authority for disarming you when you cross onto City property. Despite such bold assertions, the Cherry case just stands for the premise that if you work as a municipal employee, you may be prohibited from carrying a weapon while on the job.

There are presently cities all over Washington State receiving legal advice based on legal reasoning that has already been repudiated by every jurisdiction that has honestly looked at the state preemption law and the cases. The reason they get bad advice advice is because many politicians in our state of Washington, like Mayor Greg Nickels in Seattle, don’t like the state preemption law and have announced publicly that they want it repealed.

Lawyers often provide advice that will provide justification for the client’s agenda (e.g., to restrict your gun rights). Prior to the AG issuing the opinion putting anti-gun politicians in their place, cities were being advised by counsel to rely on the case of Pacific Northwest Shooting Park Association v Sequim in order to wage their quiet jihad on your ability to protect your family and loved ones and remain safe at public meetings.

In Pacific Northwest Shooting Park Association v City of Sequim, 158 Wash.2d 342 (2006), the court held that the City of Sequim was acting in a private capacity when leasing out a city convention center to an association conducting a gun show within the premises belonging to Sequim. The court decided that the laws that apply to public parks, public meetings and other municipally owned premises and property are not the same as restrictions imposed on private parties per a city’s contractual relations with private parties.

AGO Opinion 2008-8 essentially states that the City of Federal Way’s conclusion that the city has the right “to decide as an owner how its property is used” would render the preemption statute meaningless. In the event civil litigation becomes necessary, attorney’s fees for the defendant can be very high especially in the face of the unequivocal legal authority outlined herein.

As stated already, there are several jurisdictions within the State of Washington that are not presently complying with the preemption law and firearms owners are becoming very concerned that such callous indifference to state law may endanger the lives of Washington citizens in direct contravention of legislative intent!

The best defense for the citizens of Washington state, all of whom are vulnerable to random shootings and street violence is to limit the number of “gun free” zones that are available as kill zones to criminals, terrorists or other deranged individuals seeking publicity by mass shootings. Almost all such shootings have occurred in areas where honest citizens have been rendered defenseless by laws or policies that violate RCW 9.41.290.

See also The Living Constitution?

Vigilance, Not Vigilantes

The fact that the King County Sheriff’s office and other Washington State law enforcement agencies are being forced to eliminate officers has raised the issue of whether we citizens may have to defend ourselves from violent predators. Is Sheriff Sue Rahr’s recent suggestion that citizens should protect themselves some new kind of vigilantism that may deprive others of Constitutional due process?

Let us start with the premise that no one should ever threaten to give another person a lead enema. State Sen. Tim Sheldon’s colorful advice to his Mason County constituents is ill-advised. It is illegal to shoot fleeing criminals unless it is readily apparent that the individual has perpetrated certain violent offenses that present clear danger to the community. Common sense dictates that any violent encounter is better handled by an individual trained to evaluate the legal and tactical considerations involved with stopping a fleeing felon.

By getting trained professionally, you will learn that when you are legally justified in holding a perpetrator at gun point, you should aim at the front of the pelvis not the backside! A predator can traverse 21 feet with a knife or other contact weapon before you will have time to react and effectively stop your attacker.

By aiming at the pelvis you can shatter the pelvic bones and stop the attacker’s forward momentum while also directing the shot downward so that your shot will not hit someone beyond your assailant. The psychological intimidation of a pistol aimed at the groin is another advantage of maintaining such a “low ready” stance. Try to remain behind cover if possible and never approach a person that you are holding at gunpoint. Many violent predators train constantly and they probably know more tricks than you do.

You should not ever present a weapon unless you are imminently threatened by someone presenting deadly force. Should you shoot to kill or just to wound? The right answer is that neither option is correct. You should shoot to stop deadly violence.

Shooting to wound an armed assailant is for Hollywood cowboys. Stopping a perpetrator usually means aiming for the center of body mass; i.e.; the middle of the chest. Head shots are reserved for suicide bombers and hostage-takers. Two shots will often sufficient to prevent the assailant returning fire. Despite your well-placed shots, you may need to reload in order to keep shooting until the threat is stopped so carry what you need where it is accessible. Warning shots are foolish and inadvisable.

Do not be misled by talk that emboldens illegal and ignorant vigilantism. Citizens can contribute much toward good government by reminding politicians that they work for us. If we tolerate crazy talk coming out of Mason County people will soon be trying to give enemas to professional politicians. Nobody wants that.

The Law Office of Mark Knapp is offering legal seminars on these and related issues at no charge for groups of ten or more. Send an e-mail to for more information.

NFA Trusts Available for Washington Gun Owners

Many gun owners are interested in holding certain items that are restricted under the National Firearms Act. There are several advantages in using revocable trusts to hold weapons and other components that come under the purview of Title II of the NFA.

We are working with Apple Law Firm, PLLC to help interested gun owners get an NFA Trust in place. You may want to go to NFA Gun Trust Lawyer Blog to find out more.

You will need a Class III license to own a Title II weapon and the BATF will not permit ownership of weapons that violate Washington State and other states’ firearms laws. Thus, you need to know the laws in more than one jurisdiction if you are interested in obtaining suppressors, automatic weapons and any other weapons that are restricted under federal and state laws. As time goes on, we will start posting more articles on such subjects.

Generally a Firearms trust only works for the weapons or class 3 items that are legal in the state where they will be stored unless the state laws permit businesses and trusts to own but not individuals. In Washington, a trust would not allow an individual to purchase a machine gun, but it would permit them to purchase an AOW (a separate category of restricted weapons) without the permission of the CLEO (a specific local/state law enforcement officer required under federal law to approve possession of certain items) and give the additional protections that a trust can offer.

While you are checking out the links, click on the link to a recent article on Why the Second Amendment Matters published in our local Federal Way Mirror.

See also The Living Constitution?

Can the UN Repeal Your Washington State Gun Rights?

Medellín v Texas is a landmark that stands for freedom in the United States.

See United States

In recent years, some members of the U.S. Supreme Court have made attempts to meld U.S. law with foreign law. International norms are apparently a new prism through which U.S. Constitutional law should be interpreted, according to some justices.

For example, in criticizing the Court’s own previous decision upholding state laws against consensual sodomy, the Court stated:

Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Lawrence v Texas reversing Bowers v Hardwick

In the Lawrence v Texas decision, the majority opinion focused on global economics and world order as a justification for reversing an opinion that the U.S. Supreme Court delivered seventeen years before.

Medellin is a death penalty case but the Supreme Court did something more important than just deal with the issue of whether the State of Texas must give a psychopath a new trial. In Medellin, the strict-constructionist members of the Court put a death knell to the concept that international tribunals, treaties and legal usages are binding on states like Texas (and the State of Washington). For example, by holding as it did in Medellin- that international treaties and presidential orders do not trump state laws- the Court may have protected Americans from the UN Treaty on Small Arms that the UN is preparing to promote very heavily in the U.S. (the UN has been working on this agenda throughout the world- even as the UN remains a haven for genocidal regimes of every stripe). The “Progressives” who are up in arms against the Roberts Court are livid, according to the Wall Street Journal:

Though the case became a global cause célèbre, its sordid origins trace to 1993, when José Medellín, a Mexican national, murdered two Houston teenagers. He was sentenced to death by a Texas jury, but his lawyers argued on appeal that he hadn’t had access to Mexico’s consulate before he confessed to his crimes.

This was a violation of the 1963 Vienna Convention, which holds that diplomats are supposed to be notified when their nationals are arrested. In response, the U.S. government took steps to ensure states better comply in the future, both to fulfill its treaty obligations and serve the reciprocal interests of U.S. citizens detained abroad.

But Mexican authorities made the case a referendum on capital punishment and international legal norms, ultimately suing the U.S. in the International Court of Justice at The Hague. The ICJ ruled in Mexico’s favor, ordering states to give Medellín and some 51 other nationals new hearings. The question before the Supreme Court was whether such international dictates must be enforced by sovereign state courts. An affirmative answer might have gone a long way toward validating the expansive claims of liberal legal theorists that U.S. courts take instruction from the U.N., among other moral oases.

Chief Justice John Roberts, writing for the 6-3 majority, ruled that the ICJ finding was not binding because the Vienna Convention is an understanding between governments. It is a diplomatic compact that was never intended to automatically create new individual rights enforceable domestically by international bodies. Texas’s violation was of diplomatic protocols, and calls for a diplomatic remedy.

Treaty provisions must be in accord with the plain meaning of the Constitution as it is written, not as some European-style socialists would have it to be. This distinction establishes a fire wall between international and domestic law. It also protects the core American Constitutional principles of federalism and the separation of powers.

Justice Roberts pointed out that courts must leave to the political branches the primary role in deciding when and how international agreements will be enforced.

Medellín v. Texas also swatted away a claim of Presidential power. According to the WSJ, the Bush Administration attempted to calm the diplomatic world by directing states to comply with the ICJ ruling in a 2005 executive order.

The Court ruled that the President’s power is limited by the Constitution. Authority to make treaty commitments does not extend to unilaterally asserting new state responsibilities or legal duties. The executive makes new laws subject to the legislature. The same crowd that is so suspicious of the Bush Administration’s claims of executive power, can’t wait to turn the executive powers over to international politicians who have already banned guns in most of Europe, Australia and Canada, to name a few!

Another safeguard provided by the Medellin case, is the safeguard against potential hate speech laws that chill your First Amendment freedoms. Hate speech laws are being used all over the Western World to silence criticism of Islam. If the multiculturalist crowd has its way, it could become a crime to make statements in the United States of America that violate hate crime laws like the laws enacted in Australia and Canada and many Western European nations. Hopefully we will continue to have Supreme Court Justices that recognize this kind of totalitarianism disguised as multiculturalism as a threat to liberty and free speech.

The Medellín majority has delivered a victory for the U.S. Constitution. For many years, the elite lawyers and politicians have been claiming that the Constitution is always changing based on the needs of each generation. This is not rule of law but an argument for tyranny which would interlineate international norms in place of bedrock Constitutional norms.

There are still many law professors and judges that think treaties supersede the U.S. Constitution. Hopefully the Medellin case has put such legal doctrines to rest! The decision went against the Bush Adminstration this time but if Medellin is reversed the next decision could impose UN-made laws that shut down our ability to conduct full debate on many important issues. Debate is often a strength that promotes new ways of dealing with threats and opportunities.

Ironically, we have President Bush to thank for men like Chief Justice Roberts and the other justices on the Court that read documents in plain English and just said NO to the Bush Administration’s overly aggressive claim of presidential power.

See also Perverting the Bill of Rights.