LICENSES ‑- PERMIT TO CARRY CONCEALED WEAPON ‑- ISSUANCE TO PERSON CONVICTED OF A CRIME OF VIOLENCE ‑- PROBATION ‑- RESTORATION

LICENSES ‑- PERMIT TO CARRY CONCEALED WEAPON ‑- ISSUANCE TO PERSON CONVICTED OF A CRIME OF VIOLENCE ‑- PROBATION ‑- RESTORATION.

(1) A license permitting a person to carry a concealed weapon, issued pursuant to RCW 9.41.070, may not be issued to a person who has pleaded or been found guilty of a "crime of violence" as defined in RCW 9.41.010, and who is thereupon granted a probation in accordance with RCW 9.95.200.

(2) In the event that such a person successfully fulfills the conditions of his probation and obtains an order of dismissal of the indictment or information pursuant to RCW 9.95.240, his eligibility to receive a concealed weapon permit should be regarded as restored.

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                                                               November 28, 1966

Honorable George A. Kain
Prosecuting Attorney
Spokane County Court House
Spokane, Washington 99201

                                                                                                              Cite as:  AGO 65-66 No. 120

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) May a concealed weapon permit be issued, pursuant to RCW 9.41.070, to a person who has pleaded or been found guilty of a "crime of violence" as defined in RCW 9.41.010, and who is thereupon granted probation in accordance with RCW 9.95.200?

            (2) If question (1) is answered in the negative, would such a person be restored to eligibility for a concealed weapon permit upon fulfillment of the conditions of his probation and resulting dismissal of the proceedings pursuant to RCW 9.95.240?

            We answer question (1) in the negative, and question (2) in the affirmative.  Our reasoning is set forth in the following analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            RCW 9.41.070 provides for the issuance of concealed weapon permits, as follows:

            "The judge of a court of record, the chief of police of a municipality, or the sheriff of a county, shall within thirty days after the filing of an application of any person issue a license to such person to carry a pistol concealed on his person within this state for not more than one year from date of issue, for the purposes of protection or while engaged in business, sport or while traveling.  Such citizen's constitutional right to bear arms shall not be denied to him, unless there exists a record of his prior court conviction of a crime of violence, or of drug addiction or of habitual drunkenness or of confinement to a mental institution.  The license shall be in triplicate, in form to be prescribed by the state director of licenses, and shall bear the name, address, description and signature of the licensee and the reason given for desiring a license.  The original thereof shall be delivered to the licensee, the duplicate shall within seven days be sent by registered mail to the director of licenses and the triplicate shall be preserved for six years, by the authority issuing said license.  The fee for such license shall be one dollar which shall be paid into the state treasury."  (Emphasis supplied.)

            Notably, the sentence containing the underscored disqualification was added to this statute by an amendment in 1961.  See, § 6, chapter 124, Laws of 1961.  Presumably, this amendment was predicated, in part, by a desire to conform the concealed weapon permit section of the basic act (chapter 172, Laws of 1935, as amended)1/ with a provision contained in another section‑-RCW 9.41.040 (§ 4, chapter 172, Laws of 1935, as amended by § 3, chapter 124, Laws of 1961)‑-which reads:

             [[Orig. Op. Page 3]]

            "No person who has been convicted in this state or elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control.  Such person upon being convicted of a violation of this section shall be guilty of a felony and punished by imprisonment in the state penitentiary for not less than one year nor more than ten years."

            The term "crime of violence," it should also be preliminarily noted, is expressly defined by RCW 9.41.010 (§ 1, chapter 172, Laws of 1935, as amended by § 1, chapter 124, Laws of 1961), as follows:

            "'Crime of violence' as used in RCW 9.41.010 through 9.41.160 means any of the following crimes or an attempt to commit any of the same: Murder, manslaughter, rape, mayhem, first degree assault, robbery, burglary and kidnapping."

            Question (1):

            Your first question assumes that the applicant for a concealed weapon permit has pleaded guilty to, or been found guilty of, one of the crimes specifically mentioned in RCW 9.41.010, supra.  It further assumes however that instead of being sentenced in accordance with RCW 9.95.010, the person has been granted probation in accordance with RCW 9.95.200, which reads, in material part, as follows:

            "After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. . . ."2/

             [[Orig. Op. Page 4]]

            The issue to be determined, in relation to the foregoing, relates specifically to the meaning of the term "conviction" as used in RCW 9.41.070,supra.  In its ordinary sense, and in the way it has been used most often by both legislators and courts, the term "conviction" simply denotes the result of having pleaded or having been found guilty of a crime.  See,In re Towne, 14 Wn.2d 633, 129 P.2d 230 (1942);State ex rel. Brown v. Superior Court, 79 Wash. 570, 140 Pac. 555 (1914);State v. Proctor, 68 W.D.2d 808 [[68 Wn.2d 817]], 415 P.2d 634 (1966);In re Mempa v. Rhay, 68 W.D.2d 871 [[68 Wn.2d 882]](1966); andState v. Wills, 68 W.D.2d 891 [[68 Wn.2d 903]](1966), (dissenting opinion).  State v. Wills, 68 W.D.2d 891 (1966), (dissenting opinion).

            However, in certain instances the courts have been constrained to place a more restrictive meaning on the term.  A recent example of this isTembruell v. City of Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964), in which the court concluded that a plea of guilty to a felony charge coupled with an award of probation under RCW 9.95.200, supra, did not result in such a "conviction" as would cause a retired police officer to forfeit his pension in accordance with RCW 41.20.110.3/   See, also,State v. Burnett, 144 Wash. 598, 258 Pac. 484 (1927).

            In the case ofState ex rel. Brown v. Superior Court, supra, the court stated the problem as follows:

             [[Orig. Op. Page 5]]

            ". . . Numerous cases have been cited as to the proper meaning to be given the word 'conviction' in criminal statutes; whether it means the finding of guilty by either court or jury, or the status of a defendant after the finding of guilt and the imposition of judgment and sentence.  It is enough to say that sometimes it means the one thing and sometimes it means the other, and we must look to the context to ascertain the real meaning to be given in the particular case. . . ."

            Our task, then, is to determine what the term "conviction," as used in the phrase "record of a prior conviction," means within the context of RCW 9.41.070,supra.  In making this determination it is to be noted that the ultimate objective in construing a statute is to ascertain and give effect to the intention of the legislature which enacted the statute.  Public Hosp. Dist. v. Taxpayers, 44 Wn.2d 623, 269 P.2d 594 (1954);Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948); andLynch v. Dept. of Labor & Industries, 19 Wn.2d 802, 145 P.2d 265 (1944).  It is a fundamental rule of construction that in arriving at the intent of a legislature, first resort is to be made to the context and subject matter of the legislation because the intention of the lawmakers must be ascertained from what they have said.  Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957); see, also,Driscoll v. Bremerton, 48 Wn.2d 95, 291 P.2d 642 (1955).

            The general purpose of statutes restricting the right to bear arms has been stated by the supreme court of Illinois, in People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950), as follows:

            ". . . The second amendment to the constitution of the United States provides the right of the people to keep and bear arms shall not be infringed.  This, of course, does not prevent the enactment of a law against carrying concealed weapons,but it does indicate it should be kept in mind, in the construction of a statute of such character, that it is aimed at persons of criminal instincts, and for the prevention of crime. . ."  (Emphasis supplied.)

             [[Orig. Op. Page 6]]

            Clearly, the legislature, in enacting RCW 9.41.070, supra, and, as well, RCW 9.41.040, supra, was cognizant of this principle.  By enacting these statutes, the legislature restricted the right to carry concealed weapons by limiting the class of persons to whom concealed weapon permits could be issued.  Implicit in its designation of the specific class with which we are presently concerned is a legislative determination that persons who stand convicted of crimes of violence represent such a substantial danger to the public that they should not be permitted to own or carry a concealed weapon.  It is significant that in making this determination, the legislature gave consideration not only to the fact of a conviction but, as well, to the nature of the crime committed.  Thus, many persons with criminal records, including those with certain felony convictions, may nevertheless be permitted to carry concealed weapons.  It is only those who have been convicted of crimes of violence who are barred.

            In other words, the legislature has determined that a person who has been convicted of a crime of violence has demonstrated that he represents too great a risk to the public to be entrusted with a concealed weapon permit.  In this context, it is manifest that the legislature was using the term "conviction" in its usual sense.  Consequently, it is our opinion that a person who has been found guilty, whether by verdict or plea, of a crime of violence as defined in RCW 9.41.010,supra, is a person with a "record of a prior court conviction" within the meaning of RCW 9.41.070, supra, even though placed on probation under RCW 9.95.200,supra.4/   Therefore, it follows that such a person, during the period of his probation, is not eligible to obtain a concealed weapon permit.

            Question (2):

            Having acquired the status of a convicted person, the question  [[Orig. Op. Page 7]] you next ask is whether the probationer is forever barred from being licensed to carry a concealed weapon.  The answer to this problem depends not so much upon the foregoing reasoning and analysis as it does upon analysis of the rights afforded to a probationer under RCW 9.95.240.  This statute provides as follows:

            "Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, may at any time prior to the expiration of the maximum period of punishment for the offense for which he has been convicted be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant,who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.  The probationer shall be informed of this right in his probation papers:  Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed."  (Emphasis supplied.)

            Speaking of this statute in AGO 65-66 No. 66, a copy enclosed, we said:

            "The language of this statute is quite clear.  Once the criminal proceedings have been dismissed pursuant thereto, the defendant is thereafter 'released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.' . . ."

            In that opinion, we were specifically concerned with the constitutional exclusion from the elective franchise which is provided for by Article VI, § 3, of our state constitution, reading:

             [[Orig. Op. Page 8]]

            "All idiots, insane persons, and persons convicted of infamous crime unless restored to their civil rights are excluded from the elective franchise."

            We concluded that a person whose felony information or indictment is dismissed pursuant to RCW 9.95.240, supra, is "released from all penalties and disabilities resulting from the offense or crime of which he has been convicted" and may, therefore, qualify for or hold any elective state or county office for which he is otherwise qualified as an elector.

            On the basis of this same reasoning, it follows that a person whose "crime of violence" information or indictment is similarly dismissed would, by virtue of being "released from all penalties and disabilities resulting from the offense or crime of which he has been convicted," be restored to eligibility to be issued a concealed weapon permit pursuant to RCW 9.41.070, supra.

            This conclusion is supported by two California cases discussing the effect of a statute substantially similar to our RCW 9.95.240, supra.  InPeople v. Banks, 53 Cal.2d 370, 388, 348 P.2d 102 (1959), the defendant had been convicted under a statute making it a crime for "any person . . . who has been convicted of a felony . . ." to have any weapon (in this case, a revolver) in his possession.  The defendant had been placed on probation pursuant to the California counterpart of RCW 9.95.200 and had completed the probationary period but had not requested or received a dismissal of the information.  In sustaining the conviction, the court concluded as follows:

            "It does not appear that compliance with the statutory procedure which results in dismissal of a charge as to a defendant who has successfully completed probation should be brushed aside as a meaningless formality.  Such a defendant should comply with the statutory procedure as an indication of his appreciation that he has fulfilled the conditions upon which he was granted clemency and that he has acquired a status more like that of the person who has never been convicted of crime than would have been possible without the court's act of grace and defendant's acceptance of its meaning."

             [[Orig. Op. Page 9]]

            InPeople v. Taylor, 178 Cal.App.2d 472, 3 Cal.Rep. 179 [[3 Cal.Rptr. 186]](1960), the court had before it a person who had successfully completed her probation and had taken advantage of the dismissal provision.  Thereafter, she was charged with a violation of the same statute that had been the basis for the charge in Banks.  Affirming an order setting aside the information, and expressly rejecting the argument that legislative intent was that a probationer should forever remain among the class of persons not entitled to possess weapons, the court said:

            "The clear intent of the probation sections of the Penal Code . . . is to effect the complete rehabilitation of those convicted of crime.  The record of one released under this section is wiped clean, subject only to reinstatement when . . . the person commits another crime . . .  If one . . . has fulfilled the requirements of probation and secured a release . . . it is a fair inference that such a person should also be released from that class of convicted felons . . . and should be restored to the right to possess a revolver or other handgun . . . just as any other citizen. . . ."

            Accordingly, we conclude that a person such as you have described may not be issued a concealed weapon permit during the period of his probation.  Nor may he be issued such a permit thereafter until the dismissal has been entered pursuant to RCW 9.95.240, supra, at which time his eligibility to receive a concealed weapon permit should be regarded as restored.

            We trust the foregoing will be of assistance to you.