Kincer v. State

• Decision Date: 23 May 2023
• Docket Number: 57196-0-II
• Parties: TERRY L. KINCER, Appellant, v. STATE OF WASHINGTON, Respondent.
• Court: Washington Court of Appeals

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TERRY L. KINCER, Appellant, v. STATE OF WASHINGTON, Respondent.

No. 57196-0-II

Court of Appeals of Washington, Division 2

May 23, 2023

ORDER GRANTING MOTION TO MODIFY OPINION AND AMENDING OPINION

MAXA P.J.

Appellant Terry Kincer filed a motion to modify language in the court's April 18, 2023 published opinion regarding whether a person convicted of fourth degree assault domestic violence is prohibited from possessing a firearm under 18 U.S.C. § 922(g)(9). After consideration, the court grants the motion. The court's opinion is hereby amended as follows:

(1) On page 6, line 1 of last full paragraph: "fourth degree assault" is replaced with "a misdemeanor crime of";

(2) On page 7, line 1: "fourth degree assault" is replaced with "a misdemeanor crime of";

(3) On page 7, line 4 of first full paragraph: the first "would" is replaced with "could" and the second "would" is replaced with "might";

(4) On page 7, line 3 of second full paragraph "would" is replaced with "could";

(5) On page 7, line 4 of second full paragraph "would" is replaced with "might"; and

(6) On page 8, line 1 of second full paragraph "would" is replaced with "may".

IT IS SO ORDERED.

We concur: GLASGOW, C.J. CHE, J. Terry Kincer appeals the trial court's order denying his petition for restoration of his right to possess a firearm under RCW 9.41.040(4).^[1] Kincer had been prohibited from possessing firearms under Washington law as a result of a prior misdemeanor fourth degree assault domestic violence conviction.

It is undisputed that Kincer satisfied the requirements of RCW 9.41.040(4)(a) for having his right to possess a firearm restored under Washington law. However, 18 U.S.C. § 922(g)(9) states that it is unlawful for a person convicted of a misdemeanor crime of domestic violence to possess firearms. The trial court ruled that this federal statute preempted RCW 9.41.040(4) and precluded the restoration of Kincer's right to possess a firearm under Washington law.

We hold that (1) Kincer is entitled to restoration of his right to possess a firearm under RCW 9.41.040(4) because he has met the enumerated statutory requirements, and (2) 18 U.S.C. § 922(g)(9) does not preempt RCW 9.41.040(4) because restoring a person's right to possess a firearm under state law does not conflict with the federal prohibition of possessing a firearm. Accordingly, we reverse the trial court's order denying Kincer's petition to restore his right to possess a firearm and remand for the trial court to enter an order restoring Kincer's right to possess a firearm under Washington law.

FACTS

In 1997, Kincer was convicted of fourth degree assault domestic violence, a gross misdemeanor. As a result, he was prohibited from possessing firearms under Washington law.

In March 2022, Kincer petitioned the trial court for an order restoring his right to possess a firearm under RCW 9.41.040(4). In the petition, Kincer declared,

I have spent at least . . . three consecutive years in the community without being convicted or found not guilty by reason of insanity in any jurisdiction of any felony, gross misdemeanor, or misdemeanor. I have never been convicted or found not guilty by reason of insanity in any jurisdiction of any felony sex offense, class A felony, or any felony with a maximum sentence of at least twenty years. I am not currently charged in any jurisdiction with any felony, gross misdemeanor, or misdemeanor. I have no prior felony convictions that count as part of my offender score under RCW 9.94A.525. I have never been involuntarily committed for mental health treatment. . . . I have completed all conditions of my misdemeanor sentence(s).

Clerk's Papers at 2.

The State opposed Kincer's petition, arguing that 18 U.S.C. § 922(g)(9) precluded him from possessing firearms. The State claimed that this federal law preempted state law, and therefore Kincer was prohibited from having his right to possess a firearm restored.

The trial court denied Kincer's request for restoration of his right to possess a firearm under RCW 9.41.040(4). The court ruled that conflict preemption applied because it was not possible to apply both RCW 9.41.040(4) and 18 U.S.C. § 922(g)(9). And because federal law preempted Washington law, Kincer could not have his right to possess a firearm restored under RCW 9.41.040(4).

Kincer appeals the trial court's order denying his petition for restoration of his right to possess a firearm.

ANALYSIS

A. Restoration of Right to Possess a Firearm

Kincer argues that he is entitled to the restoration of his right to possess a firearm under RCW 9.41.040(4). We agree.

Under RCW 9.41.040(2)(a)(i), a person is guilty of second degree unlawful possession of a firearm if they own, possess, or control any firearm and the person previously was convicted (or found not guilty by reason of insanity) of fourth degree assault involving domestic violence.

However RCW 9.41.040(4)(a) states that a person who has been prohibited from possessing a firearm under subsection (2) "may petition a court of record to have his or her right to possess a firearm restored." The petitioner must not previously have been convicted (or found not guilty by reason of insanity) of a sex offense, a class A felony, or a felony with a maximum sentence of at least 20 years. RCW 9.41.040(4)(a). In addition, the petitioner must have (1) gone three or more consecutive years with no convictions or findings of not guilty by reason of insanity; (2) no current felony, gross misdemeanor, or misdemeanor charges; (3) no prior felony convictions that prohibit the possession of a firearm counted as part of their offender score under RCW 9.94A.525; and (4) completed all conditions of their sentence. RCW 9.41.040(4)(a)(ii)(B).

Significantly here, there is no requirement under RCW 9.41.040(4)(a) that the petitioner's possession of a firearm be lawful under federal law in order to obtain an order restoring the petitioner's right to possess a firearm under Washington law.

If the petitioner has satisfied the statutory requirements, the trial court is required to enter an order restoring the petitioner's right to possess a firearm. State v. Swanson, 116 Wn.App. 67, 75, 65 P.3d 343 (2003). "On its face, RCW 9.41.040(4) gives no discretion to the restoring court once the enumerated, threshold requirements are met." Id. If the petitioner has met the statutory requirements, the court merely performs a ministerial function to restore the petitioner's right to possess a firearm. Id. at 78.

Here, Kincer declared, and the State has not contested, that he had satisfied all the requirements of RCW 9.41.040(4)(a). Because Kincer has met these requirements, we hold that he is entitled to the restoration of his right to possess a firearm under Washington law. B. Federal Preemption of RCW 9.41.040(4)

Kincer argues that federal law does not preempt RCW 9.41.040(4) and does not preclude him from having his right to possess a firearm restored under Washington law. We agree.

1. Legal Principles

The Supremacy Clause of the United States Constitution, article VI, clause 2, gives the federal government the power to preempt state law. Glacier NW, Inc. v. Int'l Brotherhood of Teamsters Loc. Union No. 174, 198 Wn.2d 768, 783, 500 P.3d 119 (2021), cert. granted, 145 S.Ct. 82 (2022). Conflict preemption occurs when federal and state laws conflict because compliance with both is impossible or state law operates as an obstacle to accomplishing the purpose of federal law. Sherwood Auburn LLC v. Pinzon, 24 Wn.App. 2d 664, 677, 521 P.3d 212, (2022), review denied, 1 Wn.3d 1005 (2023). "Compliance is impossible when a federal law forbids an action that state law requires." West v. Seattle Port Comm'n, 194 Wn.App. 821, 830-31, 380 P.3d 82 (2016).

However, there is a strong presumption against federal preemption of state law. Waste Mgmt. of Wash., Inc. v. Wash. Utils. & Transp. Comm'n, 24 Wn.App. 2d 338, 350, 519 P.3d 963 (2022), review denied, 1 Wn.3d 1003 (2023). Our Supreme Court" 'adhere[s] to a rigorous analysis of the preemption issue because of [its] continuing desire to uphold state sovereignty to the maximum extent, tempered only by the mandate of the Supremacy Clause of the United States Constitution.'" Kissan Berry Farm v. Whatcom Farmers Coop., 23 Wn.App. 2d 490, 501, 516 P.3d 821 (2022) (quoting Hue v. Farmboy Spray Co., 127 Wn.2d 67, 77, 896 P.2d 682 (1995)). And the party claiming preemption has the burden of proof. Gartner, Inc. v. Dep't of Revenue, 11 Wn.App. 2d 765, 788, 455 P.3d 1179 (2020).

We review federal preemption issues de novo. Wal-Mart Stores, Inc. v. United Food & Com. Workers Int'l Union, 190 Wn.App. 14, 21, 354 P.3d 31 (2015).

2. Federal Law

Under 18 U.S.C. § 922(g)(9), it is unlawful for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport . . . or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." This provision is known as the Lautenberg Amendment. United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013).

A "misdemeanor crime of domestic violence" is defined as "a misdemeanor under Federal, State, Tribal, or local law" and

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former

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