Forster v. Pierce County

• Decision Date: 21 January 2000
• Docket Number: No. 24659-7-II.,24659-7-II.
• Citation: 991 P.2d 687,99 Wash.App. 168
• Court: Washington Court of Appeals
• Parties: Carey L. FORSTER, Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington; Arnold H. Blaker; Cheryl F. Carlson; City of Tacoma, a municipal corporation, Respondents.

991 P.2d 687

99 Wash.App. 168

Carey L. FORSTER, Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington; Arnold H. Blaker; Cheryl F. Carlson; City of Tacoma, a municipal corporation, Respondents.

No. 24659-7-II.

Court of Appeals of Washington, Division 2.

January 21, 2000.

Eric Rolf Stahlfeld, Seattle, for Appellant.

Jean P. Homan, Assistant City Attorney, Robin Jenkinson, City Attorney, Tacoma, for Respondents.

MORGAN, J.

The question in this case is whether a person convicted of delivering drugs in 1972 has an unrestricted right to possess firearms in 1997. The answer is no.

In 1972, Carey L. Forster pled guilty to delivering a controlled substance in violation of the Uniform Controlled Substances Act (UCSA). He was sentenced to prison for the statutory maximum term of five years.

In August 1973, Forster was paroled. On January 12, 1977, almost a year before his maximum term was to expire, he received a "Final Discharge Restoring Civil Rights" from the Washington State Board of Prison Terms and Paroles. The Board granted the final discharge pursuant to Laws of 1961, chapter 187.

On January 7, 1994, Forster applied for a permit to carry a concealed firearm. He submitted his application to Pierce County's Law Enforcement Support Agency (LESA), acting as designee of the Tacoma Police Department. LESA promptly denied his application, reasoning that he was prohibited from possessing firearms due to his 1972 conviction. Forster appealed administratively, and his appeals were denied no later than the end of March 1994. He took no further action at that time.

Nearly three years later, in January 1997, Forster filed a pro se complaint against Pierce County, the City of Tacoma, and two of their employees. He alleged that the defendants had unlawfully denied him a concealed pistol permit, violated 42 U.S.C. § 1983, and abridged the ex post facto clause. On May 19, 1997, he augmented his complaint with requests for a declaratory judgment and writ of mandamus.

On May 20, 1997, the defendants counterclaimed for malicious prosecution. They also alleged that Forster's claims were "frivolous and advanced without reasonable cause, requiring Defendants to incur costs and attorney's fees in defending the action."¹ They sought liquidated damages of $1,000 for each employee, plus reasonable attorney fees under RCW 4.24.350, RCW 4.84.185 and 42 U.S.C § 1988.

On July 1, 1997, the City moved to dismiss Forster's action pursuant to CR 12(b)(6). The trial court granted the motion and dismissed Forster's complaint. The City then moved for summary judgment on its counterclaims, but failed to provide any factual support. The trial court granted the motion, finding among other things that the action had been filed without probable cause. The trial Court ordered Forster to pay reasonable attorney fees and $1,000 in damages to each of the two employees, after which Forster filed this appeal.

In 1972, Washington law did not bar a person convicted of delivering a controlled substance from possessing a firearm.² Since 1983 it has barred such a person from possessing a short firearm or pistol,³ although it has also provided that the person "shall not be precluded from possession 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[.]"⁴ Since 1995, the superior court has been able to restore a person's right to possess a firearm,⁵ provided that the person files a proper petition and satisfies RCW 9.41.040(3), RCW 9.41.040(4), or 18 U.S.C. § 925(c).⁶

Forster argues to us that these statutes do not affect his right to possess a firearm. This is true, he says, because he falls within a statutory exemption or, even if he does not, because it would violate the ex post facto clause of the constitution to apply 1983 legislation to him. He also assails the order that granted summary judgment on the counterclaims for damages, costs, and fees.

I. STATUTORY EXEMPTION

Forster bases his first argument on (A) RCW 9.41.040(3) and (B) RCW 9.41.070(3). We consider each in turn.

A. RCW 9.41.040(3).

In 1994, when Forster applied for a permit, RCW 9.41.040 (1) prohibited him from possessing a firearm. As just seen, however, RCW 9.41.040(3) qualified the prohibition as follows:

A person shall not be precluded from possession of a firearm if the conviction or adjudication has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted ...⁷

Forster now argues that he has satisfied RCW 9.41.040(3) because of the "Final Discharge Restoring Civil Rights" that he received in January 1977. He does not claim, nor could he claim, that the discharge was a pardon, annulment, or certificate of rehabilitation. He does claim, however, that the discharge resulted from an "equivalent procedure based on a finding of rehabilitation."

Division Three recently considered the meaning of the phrase, "other equivalent procedure based on a finding of the rehabilitation of the person convicted." In State v. Radan, Montana discharged a previously convicted defendant and restored his civil rights "the same as if the conviction had not occurred."⁸

Later, after Washington charged him with unlawful possession of a firearm based on the Montana conviction, he argued that the Washington charge was invalid because Montana had restored his civil rights based on a finding of rehabilitation. Disagreeing, Division Three held that RCW 9.41.040(3)

applies only when it is established that the procedure included a fact-finding inquiry resulting in a finding of the rehabilitation or innocence of the felon in question. The Montana restoration of rights determination here was automatic and was not based on any fact-finding procedure.⁹

Here, as in Radan, Forster's "Final Discharge and Restoration of Civil Rights" does not show that the Board of Prison Terms and Paroles held a fact-finding inquiry or made a finding of rehabilitation. Indeed, the discharge implies that the Board did not do those things; rather than reciting that a hearing was held and findings made, it states only that "it has been made to appear that... [Forster] is trustworthy and reliable and will remain at liberty without violating the laws."¹⁰ At first glance, then, it is not sufficient to satisfy RCW 9.41.040(3).

Hoping to remedy this deficiency, Forster relies on RCW 9.95.100. It provides:

Any convicted person undergoing sentence in the penitentiary or the reformatory, not sooner released under the provisions of this chapter, shall, in accordance with the provisions of law, be discharged from custody on serving the maximum punishment provided by law for the offense of which such person was convicted, or the maximum term fixed by the court where the law does not provide for a maximum term. The board shall not, however, until his maximum term expires, release a prisoner, unless in its opinion his rehabilitation has been complete and he is a fit subject for release.¹¹

Based on the second sentence of this statute, and on the fact that the Board discharged him a year before his maximum term expired, Forster argues that the Board necessarily found that "his rehabilitation has been complete."

We reject this argument for several reasons. First, RCW 9.95.100 requires only an "opinion" of rehabilitation; it does not require a fact-finding hearing or a "finding" of rehabilitation. Second, RCW 9.95.100 requires an "opinion" of rehabilitation at the time parole is granted; it does not require an "opinion" of rehabilitation at the time parole is terminated, yet that is the time relevant to both final discharge and RCW 9.41.040(3). Third, RCW 9.95.100 was enacted when final discharges were unknown to Washington law;¹² it would appear, then, that the legislature did not intend it to affect such discharges. We conclude that Forster has not satisfied RCW 9.41.040(3).

B. RCW 9.41.070(3).

Forster also claims to have satisfied RCW 9.41.070(3). It provides:

Any person whose firearms rights have been restricted and who has been granted relief from disabilities by the secretary of the treasury under 18 U.S.C. Sec. 925(c) or who is exempt under 18 U.S.C. Sec. 921(a)(20)(A) shall have his or her right to acquire, receive, transfer, ship, transport, carry, and possess firearms in accordance with Washington state law restored except as otherwise prohibited by this chapter.

18 U.S.C. § 921(a)(20) provides:

(20) The term "crime punishable by imprisonment for a term exceeding one year" does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Forster apparently reasons that RCW 9.41.070(3) incorporates all of 18 U.S.C. § 921(a)(20); that 18 U.S.C. § 921(a)(20) allows a person whose civil rights have been restored to possess firearms despite a previous conviction; and thus that he has an unrestricted right to possess firearms. This reasoning is clearly wrong. RCW 9.41.070 incorporates 18 U.S.C. § 921(a)(20)(A), not 18 U.S.C. § 921(a)(20). 18 U.S.C. § 921(a)(20)(A) refers only to "antitrust violations, unfair trade...