City of Seattle v. Evans

• Decision Date: 30 June 2014
• Docket Number: No. 67816–7–I.,67816–7–I.
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, Respondent, v. Wayne EVANS, Petitioner.

182 Wash.App. 188

327 P.3d 1303

CITY OF SEATTLE, Respondent,

v.Wayne EVANS, Petitioner.

No. 67816–7–I.

Court of Appeals of Washington, Division 1.

June 30, 2014.

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

Richard Edward Greene, Seattle City Attorney Public & Community, Seattle, WA, for Respondent.

LEACH, J.

¶ 1 On this discretionary review of Wayne Evans's conviction for unlawful use of weapons, we must decide the constitutionality of Seattle Ordinance 12A.14.080 under both article I, section 24 of the Washington State Constitution and the Second Amendment to the United States Constitution. Evans contends that Seattle's prohibition on carrying a fixed-blade knife in public violates his federal and state constitutional right to bear arms. Our state Supreme Court's City of Seattle v. Montana¹ decision, rejecting a similar challengeto the same ordinance under the Washington Constitution, requires rejection of Evans's state constitutional claim. As a matter of first impression, we hold that as applied in this case, Seattle's prohibition on carrying a fixed-blade knife in public did not violate Evans's federal constitutional right to bear arms and affirm his conviction.

FACTS

¶ 2 Seattle Police Officer Michael Conners discovered the knife at issue after a traffic stop. Conners stopped Evans for speeding. The smell of marijuana, coupled with furtive movements by Evans and his passenger, made Conners apprehensive about his own safety. He directed Evans to get out of the vehicle and asked Evans if he had any weapons on him.

¶ 3 Evans told Conners that he had a knife in his front right pants pocket. Conners took from that pocket a fixed-blade kitchen knife in a plastic sheath. Conners arrested Evans for possessing a fixed-blade knife. Evans said that he had been “jumped” before in the same neighborhood and that he carried the knife for protection.

¶ 4 The city of Seattle (City) charged Evans under Seattle Municipal Code (SMC) 12A.14.080, which makes it unlawful to carry a dangerous knife. Evans challenged the constitutionality of this ordinance in light of the United States Supreme Court's decision in District of Columbia v. Heller.² the trial court rejected this challenge. A JURY CONVICTED EVANS AS charged. Evans appealed to the superior court, which affirmed his conviction.

¶ 5 Evans petitioned this court for discretionary review. On October 10, 2012, we granted Evans's motion for discretionary review of his conviction “to the extent that he challenges the constitutionality of Seattle Municipal Code 12A.14.080.”

STANDARD OF REVIEW

¶ 6 We review constitutional issues de novo.³ “This court will presume a legislative enactment constitutional and, if possible, construe an enactment so as to render it constitutional.” ⁴ Because this case does not involve First Amendment freedoms, we determine only if SMC 12A.14.080 is unconstitutional as applied to the facts of this case. ⁵

ANALYSIS

¶ 7 Evans claims that SMC 12A.14.080 unconstitutionally infringes upon his right to bear arms under article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution. This ordinance makes it unlawful for a person knowingly to “[c]arry concealed or unconcealed on his or her person any dangerous knife, or carry concealed on his or her person any deadly weapon other than a firearm.” ⁶ A “ dangerous knife” is “any fixed-blade knife and any other knife having a blade more than three and one-half inches (3 1/2”) in length.” ⁷ A “fixed-blade knife” includes “any 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 any dagger, sword, bayonet, bolo knife, hatchet, axe, straight-edged razor, or razor blade not in a package, dispenser or shaving appliance.” ⁸

¶ 8 The ordinance includes the following exemptions:

A. A licensed hunter or licensed fisherman actively engaged in hunting and fishing activity including education and travel related thereto; or B. Any person immediately engaged in an activity related to a lawful occupation which commonly requires the use of such knife, provided such knife is carried unconcealed; provided further that a dangerous knife carried openly in a sheath suspended from the waist of the person is not concealed within the meaning of this subsection;

C. Any person carrying such knife in a secure wrapper or in a tool box while traveling from the place of purchase, from or to a place of repair, or from or to such person's home or place of business, or in moving from one (1) place of abode or business to another, or while in such person's place of abode or fixed place of business.⁹

¶ 9 Article I, section 24 of the Washington Constitution provides, “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.” The Second Amendment to the United States Constitution states, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

¶ 10 “Where feasible, we resolve constitutional questions first under our own state constitution before turning to federal law.” ¹⁰ Evans invites us to apply recent United States Supreme Court Second Amendment jurisprudence to reject the Washington Supreme Court's interpretation of article I, section 24. This invitation ignores our state Supreme Court's binding determination “that the state and federal rights to bear arms have different contours and mandate separate interpretation.” ¹¹

¶ 11 In Montana, our Supreme Court addressed a similar challenge to SMC 12A.14.080 under article I, section 24. The four justices signing the lead opinion concluded that this ordinance does not violate the state constitution because it is a “reasonable police regulation.” ¹² Two justices concurred in the result on the basis that the defendants' “ordinary knives” were not “arms” for purposes of article I, section 24 and considered it unwise “to speculate about the boundaries of the ‘reasonable regulation’ limit on the constitutional right to bear arms in self-defense.” ¹³ Three other justices agreed that the defendants' knives were not arms but believed that the ordinance unreasonably restricted a citizen's state constitutional right to carry arms for self-defense.¹⁴Montana did not involve a challenge under the Second Amendment.

¶ 12 When a divided court decides a case and no single rationale explaining the result enjoys the assent of a majority, the narrowest ground upon which a majority agreed represents the court's holding.¹⁵ Applying this rule, the narrow decision that the defendants' “ordinary knives” were not “arms” for purposes of article I, section 24, represents Montana's holding. Evans offers no meaningful distinction between his knife and those at issue in Montana. Although the City does not respond to Evans's argument that his knife qualifies as “arms,” this failure does not alter the precedential authority of Montana. Therefore, Evans's knife was not “arms” for purposes of article I, section 24 and was not afforded any protected status.

¶ 13 We next turn to Evans's Second Amendment challenge. Primarily, he relies upon Heller, decided after our Supreme Court decided Montana. There, the United States Supreme Court struck down a District of Columbia ordinance prohibiting possession of handguns in the home, declaring that the Second Amendment guarantees “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” ¹⁶ This right applies to states through the Fourteenth Amendment to the United States Constitution.¹⁷

¶ 14 However, the Heller Court qualified its decision, emphasizing that “since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” ¹⁸ The Court also stated,

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.¹⁹

Since the Supreme Court decided Heller, it has not defined the full scope of an individual's Second Amendment right.

¶ 15 As a result, state courts and lower federal courts have struggled to decide the extent, if any, that Second Amendment rights extend beyond the home. ²⁰ We assume, for purposes of this opinion, that the Second Amendment right to bear arms includes some right to bear arms outside of the home for purposes of self-defense.²¹ We also assume that Evans's knife qualifies as “arms” under the Second Amendment.

¶ 16 In Heller, the Supreme Court “declin[ed] to establish a level of scrutiny for evaluating Second Amendment restrictions.” ²² It reasoned, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one's home and family,’ would fail constitutional muster.” ²³ The Court rejected a “rational basis scrutiny” as too low a standard ²⁴ and also rejected an “interest-balancing” approach.²⁵

¶ 17 The level of scrutiny (if any) applicable to an arms restriction challenged under the Second Amendment remains unsettled.²⁶ Evans argues that we should apply strict scrutiny, but he fails to cite any authority establishing this as the appropriate standard. Following Heller, courts have generally applied intermediate scrutiny to evaluate Second Amendment restrictions.²⁷ We apply intermediate scrutiny to evaluate SMC 12A.14.080 under the Second Amendment.²⁸

¶ 18 “A law survives intermediate scrutiny if it...