City of Seattle v. Evans, 90608–4.

• Decision Date: 31 December 2015
• Docket Number: No. 90608–4.,90608–4.
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE, Respondent, v. Wayne Anthony EVANS, Petitioner.

184 Wash.2d 856

366 P.3d 906

CITY OF SEATTLE, Respondent,

v.Wayne Anthony EVANS, Petitioner.

No. 90608–4.

Supreme Court of Washington, En Banc.

Argued May 7, 2015.

Decided Dec. 31, 2015.

Casey Grannis, Nielsen Broman & Koch, PLLC, Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA, for Petitioner.

Richard Edward Greene, Seattle City Attorneys Office Criminal, Seattle, WA, for Respondent.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for amicus counsel for Washington Association of Criminal Defense Lawyers.

WIGGINS, J.

¶ 1 Wayne Anthony Evans contends that Seattle Municipal Code (SMC) 12A.14.080¹ violates his right to bear arms under article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution because the ordinance does not permit him to carry a small, fixed-blade "paring" knife for the purpose of self-defense. A jury convicted Evans of violating this ordinance, and both the superior court and the Court of Appeals affirmed.

¶ 2 We affirm the Court of Appeals but on different grounds. We hold that Evans's paring knife is not an arm entitled to constitutional protection and that Evans therefore cannot establish that SMC 12A.14.080 was unconstitutionally applied to him.

FACTS

¶ 3 Seattle Police Officer Michael Conners stopped a vehicle driven by Wayne Anthony Evans for speeding in the Central District of Seattle. As Conners approached Evans's vehicle, he observed furtive movements from Evans and his passenger, and he smelled marijuana. Conners directed Evans to exit the vehicle and asked him whether he had any weapons. Evans responded that there was a knife in his pocket. Conners instructed Evans not to reach for the knife; Conners then reached into Evans's front right pocket, retrieved a fixed-blade knife with a black handle, and placed Evans under arrest for possession of a fixed-blade knife.

¶ 4 The city of Seattle (City) charged Evans with the unlawful use of weapons in violation of SMC 12A.14.080(B).² The case proceeded to trial and the City introduced the knife into evidence and presented testimony from one witness, Conners. Conners identified the knife that he recovered from Evans at trial and the State entered that knife into evidence. When asked, Conners described the knife as having a "black handle with a metal colored blade" that was "about—about this long," apparently gesturing with his hands. Conners admitted that he was concerned that the knife had a fixed blade—that is, it had a blade that would not fold into the handle—and alternately described the blade as resembling a "kitchen knife" or a "paring knife."³ He also stated that the knife had a sheath in the form of a plastic cover on the blade.

¶ 5 The municipal court instructed the jury:

Jury Instruction 3: A person commits the crime of Unlawful Use of Weapons when he or she knowingly carries a dangerous knife on his or her person,

Jury Instruction 4: Dangerous knife means a knife, regardless of blade length, with a blade which is permanently open and does not fold, retract, or slide into the handle of the knife and includes a dagger, sword, bayonet, bolo knife, hatchet, ax, straight-edged razor or razor blade not in a package, dispenser, or shaving appliance.^[4]

The jury returned a general verdict of guilty, and Evans's conviction was affirmed by the superior court and the Court of Appeals. See City of Seattle v. Evans, 182 Wash.App. 188, 327 P.3d 1303 (2014), review granted, 181 Wash.2d 1022, 339 P.3d 634 (2014).

¶ 6 We granted review and now affirm.

ANALYSIS

¶ 7 Evans brings an as-applied challenge to SMC 12A.14.080, arguing that the statute's prohibition on carrying fixed-blade knives unconstitutionally infringes on his right to bear arms. In answering this challenge, the threshold question is whether Evans demonstrates that his fixed-blade knife is a protected arm under the Washington or federal constitution. Though we previously held that small, fixed-blade paring knives are not arms under the Washington Constitution, City of Seattle v. Montana, 129 Wash.2d 583, 919 P.2d 1218 (1996), Evans asks us to reconsider that holding in light of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

¶ 8 In considering whether paring knives are entitled to constitutional protection following Heller, we conduct a thorough survey of cases considering the protections afforded by the right to bear arms. Using principles and factors derived from Heller, Montana, and other courts to consider the scope of the term "arms," we hold that not all knives are constitutionally protected arms and that Evans does not demonstrate that his paring knife is an "arm" as defined under our state or federal constitution. Therefore, Evans cannot establish that SMC 12A.14.080(B) is unconstitutional as applied to him and we reject his as-applied challenge.⁵

I. Standard of Review

¶ 9 We review constitutional issues de novo. State v. Gresham, 173 Wash.2d 405, 419, 269 P.3d 207 (2012). We presume that statutes are constitutional and place " ‘the burden to show unconstitutionality ... on the challenger.’ " In re Estate of Hambleton, 181 Wash.2d 802, 817, 335 P.3d 398 (2014) (alteration in original) (quoting Amunrud v. Bd. of Appeals, 158 Wash.2d 208, 215, 143 P.3d 571 (2006) ).

¶ 10 " ‘[A]n as-applied challenge to the constitutional validity of a statute Is characterized by a party's allegation that application of the statute in the specific context of the party's actions or intended actions is unconstitutional.’ " State v. Hunley, 175 Wash.2d 901, 916, 287 P.3d 584 (2012) (alteration in original) (quoting City of Redmond v. Moore, 151 Wash.2d 664, 668–69, 91 P.3d 875 (2004) ). " ‘Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.’ " Id. at 916, 287 P.3d 584 (quoting Moore, 151 Wash.2d at 669, 91 P.3d 875 ). "In contrast, a successful facial challenge is one where no set of circumstances exists in which the statute, as currently written, can be constitutionally applied." Moore, 151 Wash.2d at 669, 91 P.3d 875.

II. Article I, Section 24 and City of Seattle v. Montana

¶ 11 We first consider Evans's argument that his paring knife is an arm under article I, section 24 of the Washington Constitution. Accord State v. Coe, 101 Wash.2d 364, 373–74, 679 P.2d 353 (1984) (we consider constitutional questions first under our own state constitution). Article I, section 24 of the Washington Constitution reads:

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.

This "right to bear arms" is an individual right that exists in the context of that individual's defense of himself or the state. State v. Sieyes, 168 Wash.2d 276, 292–93, 225 P.3d 995 (2010). We considered but did not decide whether the scope of the term "arms" embraced knives in City of Seattle v.

Montana. See

129 Wash.2d at 591, 919 P.2d 1218 ("In the absence of a Gunwall analysis on the question of whether, or what type of, knives constitute ‘arms' under art. I, § 24, we decline to reach this question." (citing State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) )).

¶ 12 In Montana, this court considered a challenge to former SMC 12A.14.080 (1987), substantively the same ordinance at issue here. Alberto Montana was convicted of the unlawful use of a weapon for possessing a small, fixed-blade paring knife approximately three inches long. On appeal, he argued that former SMC 12A.14.080 violated his right to bear arms under article I, section 24 and that the ordinance was unconstitutionally vague or overbroad.

¶ 13 This court issued a divided opinion. The lead opinion held that the ordinance, which makes it "unlawful for a person knowingly to ... [c]arry concealed or unconcealed on his/her person any dangerous knife," was a "reasonable" restriction on a citizen's "right to bear arms in defense of himself," as guaranteed by the Washington Constitution art. I, section 24. Former SMC 12A.14.080(B); Montana, 129 Wash.2d at 599, 919 P.2d 1218 ). Justice Alexander's concurrence rejected that view, opining that the lead opinion "incorrectly determines that the ordinance ... passes muster under Washington's constitution when applied to a case where the knives are ‘arms,’ as that term was envisioned by the drafters of our state constitution." Id. at 600, 919 P.2d 1218. His concurrence expressed the view that "the drafters of the state constitution intended, by [the] plain words [of Washington Constitution article I, section 24 ], absolutely to protect a person's right to carry arms for personal defense," Id. "Seattle's ordinance is such a broad prohibition on the possession and carrying of knives, including those that fall within the definition of ‘arms,’ that it is not ... a ‘reasonable regulation’ [, as the lead opinion would hold]." Id. The concurrence stated, "I fail to see how the ordinance can be considered constitutional when it is applied so as to prohibit the carrying of ‘arms' for the purposes of self-defense." Id. at 600–01, 919 P.2d 1218.

¶ 14 Nonetheless, five justices held that fixed-blade paring knives and small kitchen knives—such as the knife at issue in this case—are not protected arms under the Washington State Constitution.See id. at 599, 919 P.2d 1218 (Durham, C.J., concurring, joined by Guy, J.), 601 (Alexander, J., concurring, joined by Johnson and Madsen, JJ.) (Montana's small paring knife is not an arm as it is neither a traditional nor a modern arm of self-defense). The four justices in the lead opinion declined to decide the issue but stated that "the term ‘arms' extends only to weapons designed as such, and not to every utensil, instrument, or thing which might be used to strike or injure...