State v. Spencer

• Decision Date: 25 July 1994
• Docket Number: No. 32136-6-I,32136-6-I
• Citation: 876 P.2d 939,75 Wn.App. 118
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Randolph J. SPENCER, Petitioner.

Page 118

75 Wn.App. 118

876 P.2d 939

The STATE of Washington, Respondent, v. Randolph J. SPENCER, Petitioner.

No. 32136-6-I.

Court of Appeals of Washington Division 1.

July 25, 1994.

Adam Shapiro, Appellate Defender, Seattle, for petitioner.

Richard Sanders, Bellevue, for amicus curiae.

Roger Rogoff, Janet Capps, Deputy Pros. Attys., Seattle, for respondent.

COLEMAN, Judge.

Randolph J. Spencer was granted discretionary review of his conviction for one count of brandishing a weapon. He argues that (1) RCW 9.41.270 violates his right to bear arms under the Washington State Constitution, (2) the statute is unconstitutionally vague, and (3) the statute is unconstitutionally overbroad. We affirm.

On August 19, 1991 at approximately 10 p.m., Spencer was taking a walk with his dog. He carried his AK-47S semi-automatic rifle, with the clip attached, on his shoulder as he walked. ¹ A passing motorist, Verrill Olsen, saw Spencer and noticed that he was "walking briskly and carrying a rifle." Olsen became concerned when he saw that the rifle had a clip attached to it. He approached some firefighters who were investigating a propane leak nearby and suggested that they call the police. Olsen then saw police officer Heather Wall and told her that a man was walking down the street with a "military rifle slung on his shoulder."

Several firefighters also observed Spencer walking with his rifle and became concerned. Eric Tomlinson saw Spencer walking "rather fast with his head down." Tomlinson saw the rifle and noticed that it had a clip in it. He became alarmed "[b]ecause there was no obvious reason to have a weapon like that, given the surroundings." He also thought that the manner in which Spencer carried the rifle was threatening.

Officer Wall approached Spencer in her vehicle and noticed that he was carrying a rifle in "a hostile, assaultive type manner with the weapon ready". She also noticed that the rifle had a clip attached to it. Wall stopped her vehicle at a distance from Spencer and ordered him to put the gun down and walk towards her with his hands in the air. She then took him into custody, searched him, and found a .45 caliber automatic pistol under his jacket, as well as a valid concealed weapons permit.

Spencer was arrested and charged with unlawfully displaying a weapon, as prohibited by RCW 9.41.270. The District Court found him guilty, and the Superior Court affirmed the conviction. This court granted Spencer's motion for discretionary review.

We initially consider whether RCW 9.41.270 unconstitutionally restricts the right to bear arms under the Washington State Constitution.

RCW 9.41.270(1) provides, in part:

It shall be unlawful for anyone to carry, exhibit, display or draw any firearm ... in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

A statute is presumed constitutional, and the party challenging it has the burden of proving that it is unconstitutional beyond a reasonable doubt. State v. Maciolek, 101 Wash.2d 259, 263, 676 P.2d 996 (1984) (citing State v. Dixon, 78 Wash.2d 796, 479 P.2d 931 (1971); State v. Rhodes, 92 Wash.2d 755, 600 P.2d 1264 (1979)). If possible, a court will construe a statute so as to render it constitutional. State v. Luther, 65 Wash.App. 424, 427, 830 P.2d 674 (1992) (citing State v. Reyes, 104 Wash.2d 35, 41, 700 P.2d 1155 (1985)).

Article 1, 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. ²

Although this provision is stated in absolute terms, the right to bear arms is subject to reasonable regulation by the State under its police power. State v. Rupe, 101 Wash.2d 664, 707 n. 9, 683 P.2d 571 (1984). However, the regulation must be reasonably necessary to protect the public safety, health, morals, and general welfare and must be substantially related to the legitimate ends sought. Second Amendment Found. v. Renton, 35 Wash.App. 583, 586, 668 P.2d 596 (1983) (citing Homes Unlimited, Inc. v. Seattle, 90 Wash.2d 154, 158, 579 P.2d 1331 (1978)).

In Second Amendment Found., the appellants challenged a provision in the Renton Municipal Code which prohibited the carrying of firearms in places where alcoholic beverages are dispensed by the drink. The court upheld the ordinance, concluding that it was narrowly drawn because it prevented the carrying of firearms only in bars. ³ In addition, the court reasoned, the statute promoted public safety by reducing the possibility of armed conflict between people under the influence of alcohol. Thus, the court upheld the ordinance, concluding that the public's interest in safety outweighed the individual's right to bear arms in public places where liquor is served. Second Amendment Found., 35 Wash.App. at 586-87, 668 P.2d 596.

Spencer attempts to distinguish Second Amendment Found. by arguing that the statute in this case constitutes an effective ban on the right to bear arms in self-defense from past or future aggression. He also argues that the statute here is overly broad because it is unclear which weapons will cause alarm. Thus, he argues, people will decide not to carry any weapon for fear of prosecution, and the statute will have an undue chilling effect on the constitutional right to bear arms. Furthermore, he argues, the statute does not promote public safety because "preventing alarm" is an overly ambiguous objective.

We do not find these arguments persuasive. First, the statute does not prevent a person from carrying weapons in self-defense. Weapons may be carried in response to "presently threatened unlawful force by another". RCW 9.41.270(3)(c). If there is no present threat, weapons must be carried in a manner that does not warrant alarm in others. The statute does not prohibit the ownership of weapons, and it limits the possession of certain weapons only when they are carried or displayed in a manner and under circumstances that warrant alarm. Thus, for example, the statute does not prohibit an individual from legally carrying a concealed weapon such as the .45 caliber pistol Spencer carried under his jacket. We conclude that the statute's restriction on an individual's right to bear arms in self-defense is minimal. The statute is narrowly drawn and demonstrates the Legislature's awareness of and concern with preserving the rights of the individual.

In addition, the statute does not have an undue chilling effect on the right to bear arms. As the Superior Court found, the statute only prohibits the carrying or displaying of weapons when objective circumstances would warrant alarm in a reasonable person. ⁴ Thus, the restriction applies only in a limited number of situations. Furthermore, the prohibition is not so vague that it would prevent persons of common intelligence from ever carrying a weapon on the street. In the vast majority of situations, a person of common intelligence would be able to ascertain when the carrying of a particular weapon would reasonably warrant alarm in others. Although some areas of uncertainty may exist, these potential "grey areas" of the statute are small and do not render it unconstitutional. Cf. Maciolek, 101 Wash.2d at 265, 676 P.2d 996 (possible areas of disagreement do not render statute unconstitutionally vague). ⁵

Finally, contrary to Spencer's argument, the statute does promote public welfare and safety. People have a strong interest in being able to use public areas without fearing for their lives. The statute protects this interest by requiring people who carry weapons to do so in a manner that will not warrant alarm. Therefore, we conclude that the statute is reasonably necessary and substantially promotes the public welfare.

To summarize, we have determined that the statute minimally restricts the rights of the individual, it is narrowly drawn, and it promotes a substantial public interest. This public interest in security, and in having a sense of security, outweighs the individual's interest in carrying weapons under circumstances that warrant alarm in others. For these reasons, we hold that the restriction in RCW 9.41.270 on the right to bear arms is not unconstitutional.

We next determine whether RCW 9.41.270 is unconstitutionally vague as applied to Spencer's conduct.

The text of RCW 9.41.270 is set forth, supra. A statute is unconstitutionally vague and violates due process if it (1) fails to provide adequate notice to citizens of which conduct is prohibited or (2) fails to contain ascertainable standards to prevent arbitrary enforcement. State v. Maciolek, 101 Wash.2d 259, 264, 676 P.2d 996 (1984) (quoting State v. Foster, 91 Wash.2d 466, 474, 589 P.2d 789 (1979)). A statute that is not vague on its face may nonetheless be vague as applied to conduct that falls outside the statute's "constitutional core". Maciolek, 101 Wash.2d at 266, 676 P.2d 996 (citing Bellevue v. Miller, 85 Wash.2d 539, 541, 536 P.2d 603 (1975)).

In Maciolek, three petitioners challenged RCW 9.41.270, arguing that it was unconstitutionally vague. In one case, when the petitioner's doctor refused to give him a prescription for Percodan, the petitioner became angry and pulled back his jacket, revealing a handgun. The doctor was frightened and immediately wrote the prescription. In another case, the petitioner, a juvenile, fired his BB gun at two children and took one of their bicycles. In the third case, the petitioner, a juvenile, got into an argument with a woman and chased her with a knife. Maciolek, 101 Wash.2d at 261-62, 676 P.2d 996. The petitioners argued that the statute was unconstitutionally vague because it contained an unclear definition of weapons and an unclear description of the conduct...