FIREARMS ‑- LAW ENFORCEMENT ‑- STATE PATROL ‑- SHERIFF ‑- CITIES AND TOWNS ‑- AUCTION OF FIREARMS

FIREARMS ‑- LAW ENFORCEMENT ‑- STATE PATROL ‑- SHERIFF ‑- CITIES AND TOWNS ‑- AUCTION OF FIREARMS 

In order to comply with the auction requirements of RCW 9.41.098, a law enforcement agency must conduct its initial auction of firearms within one year after accumulating ten "forfeited" firearms as defined in the statute, excluding any firearms which the agency is legally entitled to retain for its own use; agencies which have not accumulated ten "forfeited" firearms may use their own discretion in deciding when to conduct an auction.

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                                                                October 23, 1989

Honorable Marlin Appelwick
State Representative, 46th District
335 House Office Building
Olympia, WA 98504

Cite as:  AGO 1989 No. 19                                                                                                           

 Dear Representative Appelwick:

             By letter previously acknowledged you requested our opinion on the following question:

            By what date must an agency conduct the first auction of firearms required by RCW 9.41.098?

            We answer your question in the manner set forth in our analysis.

                                                                      ANALYSIS

             RCW 9.41.098, the statute about which you inquire, provides for the auction of certain firearms to commercial sellers.1/  [[Orig. Op. Page 2]] Firearms subject to auction include those forfeited pursuant to judicial proceedings, primarily where the firearms have been illegally used or possessed.  RCW 9.41.098(1).  Also subject to auction are firearms coming into the possession of the Washington State Patrol, city police, or county sheriffs and remaining unclaimed.  RCW 9.41.098(2).  Illegal firearms, those that may not be legally possessed by any citizen, must be destroyed.  They are not subject to auction.  RCW 9.41.098(2).

             The portion of RCW 9.41.098(2) governing the auction of firearms provides in part:

             All firearms legal for citizen possession that are judicially forfeited or forfeited due to failure to make a claim under RCW 63.32.010, 63.40.010, or 63.‑-.‑-- (section 2 of this 1989 act)2/

             shall be submitted for auction to commercial sellers once a year if the submitting agency has accumulated at least ten firearms authorized for sale.  Law enforcement agencies may conduct joint auctions for the purpose of maximizing efficiency.  A maximum of ten percent of such firearms may be retained for use by local law enforcement agencies and the Washington state patrol.  Before submission for auction, a court may temporarily retain forfeited firearms if needed for evidence . . . .

                 If a firearm is delivered to a law enforcement agency and the agency no longer requires use of the firearm, the agency shall dispose of the firearm by auction as provided by this subsection.

 (Emphasis added.)

             This language addresses the timing of firearm auctions to the extent of providing that firearms forfeited by judicial order or firearms unclaimed under certain statutory provisions are to be auctioned "once a year if the submitting agency has accumulated at least ten firearms authorized for sale."  This provides some guidance in determining when firearm auctions must take place.  However, it falls short of fully answering the question you have posed.  First, as to agencies accumulating ten firearms authorized for sale, RCW 9.41.098(2) does not specifically identify the date from which its one‑year period  [[Orig. Op. Page 3]] begins to run.  Second, the statute does not directly address the timing of auctions by agencies that have not accumulated ten firearms.

             To determine when the one‑year period in RCW 9.41.098(2) begins, it is helpful to consider statutory provisions related to RCW 9.41.098(2)‑-specifically, RCW 63.32.010, 63.40.010, and section 2, chapter 222, Laws of 1989.  See Department of Transp. v. State Employees' Ins. Bd., 97 Wn.2d 454, 458, 645 P. 2d 1076 (1982) (recognizing that consideration of other statutes relating to the same subject is an appropriate aid in determining legislative intent.)

             RCW 63.32.010 and RCW 63.40.010 are virtually identical, except that the former applies to city police and the latter to county sheriffs.  They govern the disposition of unclaimed property (including firearms) in the hands of these law enforcement agencies.  In general, these statutes establish several disposal options when these local law enforcement agencies receive personal property in connection with the performance of official duties and when that property remains unclaimed for a prescribed period.  Particularly relevant to your inquiry are RCW 63.32.010(2) and RCW 63.40.010(2), which authorize city police and county sheriffs, respectively, to retain unclaimed property under certain circumstances.  RCW 63.32.010(2) provides in part that a city may:

             Retain the property for the use of the police department subject to giving notice in the manner prescribed in RCW 63.32.020 and the right of the owner, or the owner's legal representative, to reclaim the property within one year after receipt of notice, without compensation for ordinary wear and tear if, in the opinion of the chief of police, the property consists of firearms or other items specifically usable in law enforcement work: . . . .  At the end of the one‑year period any unclaimed firearm shall be disposed of pursuant to RCW 9.41.098(2).

 (Emphasis added.)  County sheriffs are given this same authority by RCW 63.40.010(2), which similarly provides that at the end of the one‑year period any unclaimed firearm is to be disposed of under RCW 9.41.098(2).  A virtually identical provision, section 2, chapter 222, Laws of 1989, applies to the Washington State Patrol's retention of unclaimed property.  This statute, like its counterparts governing local law enforcement authorities, provides that at the end of one year, unclaimed firearms shall be disposed of pursuant to RCW 9.41.098(2).

             Thus, city police, county sheriffs, and the Washington State Patrol may retain firearms for one year after the agency complies  [[Orig. Op. Page 4]] with applicable notice requirements, before those firearms are subject to auction under RCW 9.41.098(2) as ones "forfeited" for "failure to make a claim under RCW 63.32.010, 63.40.010, or [section 2, chapter 222, Laws of 1989]."  By contrast, firearms confiscated by judicial order ordinarily are immediately "forfeited" and available for auction unless the court, acting pursuant to RCW 9.41.098(2), temporarily retains the forfeited firearm because it is needed for evidence.

             When RCW 9.41.098(2) is considered together with these statutes governing retention of firearms by local law enforcement agencies and the Washington State Patrol, it appears that an auction is to be conducted under RCW 9.41.098(2) within one year from the date an agency first accumulates a total of ten "forfeited" firearms, as defined above.  In determining whether ten "forfeited" firearms have been accumulated, up to ten percent of "forfeited" firearms may be excluded.  RCW 9.41.098(2) authorizes local law enforcement agencies and the Washington State Patrol to permanently retain this percentage for use.

            We next consider time constraints on the auction of firearms when an agency has not accumulated ten forfeited firearms statutorily authorized for sale.  RCW 9.41.098(2) does not prescribe any specific period within which an auction is to be held under these circumstances.  The legislative history of RCW 9.41.098(2) is helpful in resolving this issue.3/

              The provisions of RCW 9.41.098(2) relating to the time by which firearm auctions must be conducted were added with the enactment of House Bill 1043 in 1989.  Laws of 1989, ch. 222, § 8, p. 1094.  In its original form, section 8 of House Bill 1043 would have amended RCW 9.41.098(2) in part as follows:

             All firearms legal for citizen possession that are judicially forfeited or forfeited due to failure to make a claim under RCW 63.32.010 (([H)), 63.40.010, or 63.‑-.‑-- (section 2 of this 1989 act) shall be submitted for auction to commercial sellers once a year or when the submitting agency has accumulated ten firearms authorized for sale, whichever occurs first.

 This original provision was amended on the floor of the Senate on April 5, 1989, deleting the language requiring an auction once a  [[Orig. Op. Page 5]] year or when the agency has accumulated ten firearms, whichever occurs first.  The Senate amendment replaced that language with the language now appearing in RCW 9.41.098(2) that requires firearms to "be submitted for auction to commercial sellers once a year if the submitting agency has accumulated at least ten firearms authorized for sale."  The House concurred in the Senate amendments and passed House Bill 1043, as amended by the Senate, on April 18, 1989.

             In light of the Legislature's deletion of the requirement that firearm auctions be held at least annually where fewer than ten forfeited firearms have been accumulated and its failure to provide for any other specific period, we conclude that the Legislature intended to leave the timing of auctions under these circumstances to the discretion of the law enforcement agency.  Further, because the legislative amendment effectively requires an annual auction only when ten firearms have been accumulated, we believe it is clearly within the discretion of the submitting law enforcement agency to hold sales less frequently than once a year, when it has accumulated fewer than ten firearms.

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MAUREEN A. HART
Sr. Assistant Attorney General