FIREARMS

CRIMES ‑- FIREARMS

It is not unlawful under RCW 9.41.250 to merely possess a device for suppressing the noise of a firearm.

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                                                                 August 30, 1988

Honorable Kent Pullen
State Senator, 47th District
Institutions Building
Olympia, Washington 98504

Cite as:  AGO 1988 No. 16                                                                                                                 

 Dear Senator Pullen:

             By letter previously acknowledged, you have asked for our opinion on a question we have paraphrased as follows:

            Is it unlawful under RCW 9.41.250 to possess a device for suppressing the noise of a firearm?

             We answer your question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             RCW 9.41.250, the provision about which you have inquired, provides:

             Every person who shall manufacture, sell or dispose of or have in his possession any instrument or weapon of the kind usually known as slung shot, sand club, or metal knuckles, or spring blade knife, or any knife the blade of which is automatically released by a spring mechanism or other mechanical device, or any knife having a blade which opens, or falls, or is ejected into position by the force of gravity, or by an outward, downward, or centrifugal thrust or movement; who shall furtively carry with intent to conceal any dagger, dirk, pistol, or other dangerous weapon; or who shall use any contrivance or device for suppressing the noise of any firearm, shall be guilty of a gross misdemeanor.

 (Emphasis added.)

              [[Orig. Op. Page 2]]

             In essence, your question is concerned with whether the term "use" in the underscored language of RCW 9.41.250 includes mere possession of a noise suppression device.  Absent a statutory definition, words in a statute are to be given their ordinary meaning.  Davis v. Department of Empl. Sec., 108 Wn.2d 272, 737 P.2d 1262 (1987).  The ordinary meaning of the term "use" is to put a thing into service or action.  Webster's Third New International Dictionary, 2523-2524 (1981).  Thus, the use of a device for suppressing the noise of a firearm contemplates employing that device or putting it into service.  Although use of such a device may be incident to possession, use is quite different from simply possessing the device or exercising control over it.

             In our opinion, the language of RCW 9.41.250 about which you have inquired is unambiguous.  It does not prohibit mere possession of a device to suppress the noise of a firearm.

             Even if the term "use" in RCW 9.41.250 were ambiguous, rules of statutory construction would dictate against interpreting the term to include mere possession.  First, RCW 9.41.250 is a criminal statute.  Where two reasonable constructions of a criminal statute are possible, a court is required to adopt the interpretation most favorable to a person accused of violating the statute.  State v. Gore, 101 Wn.2d 481, 681 P.2d 227 (1984).  Here, of course, that would be an interpretation excluding mere possession.  Second, where the Legislature employs certain language in one part of a statute and different language in another part, a difference in legislative intent is indicated.United Parcel Serv., Inc. v. Department of Rev., 102 Wn.2d 355, 687 P.2d 186 (1984).  The Legislature has employed the term "possession" in RCW 9.41.250 and thereby has made mere possession of certain weapons a misdemeanor.  The Legislature did not employ that same term with reference to noise suppression devices.  According to this rule of construction, the Legislature's failure to do so indicates that is did not intend "use" to include mere possession.

             We trust that the foregoing will be of assistance to you.

 Sincerely,
KENNETH O. EIKENBERRY
Attorney General 

MAUREEN HART
Sr. Assistant Attorney General