USE OF CONCEALED WEAPON WITHOUT LICENSE

FIREARMS ‑- STATE, COUNTY AND CITY POLICEMEN ‑- USE OF CONCEALED WEAPON WITHOUT LICENSE

(1) A state patrolman, county sheriff or deputy sheriff, city policeman, town marshal or other law enforcement officer need not actually be on duty as such in order to be exempt, under RCW 9.41.060, from the prohibition in RCW 9.41.050 against carrying a pistol concealed on his person without a license.

(2) The exemption of RCW 9.41.060 is applicable both to law enforcement officers of our own state and its political subdivisions and to those from other states and municipalities.

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                                                                February 18, 1975

Honorable James E. Keefe
State Senator, Third District
Senate Office Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 16

Dear Senator Keefe:

            By recent letter you have asked for our opinion on two questions which we paraphrase as follows:

            (1) Must a state patrolman, county sheriff or deputy sheriff, city policeman, town marshal or other law enforcement officer actually be on duty as such in order to be exempt, under RCW 9.41.060, from the prohibition in RCW 9.41.050 against carrying a pistol concealed on his person without a license?

            (2) Does the foregoing exemption apply both to law enforcement officers of our own state and its political subdivisions and to those from other states or municipalities?

            We answer question (1) in the negative and question (2) in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 9.41.050 provides that:

            "No person shall carry a pistol in any vehicle unless it is unloaded or carry a pistol concealed on his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided."

            The term "pistol," as used in that statute, is defined by RCW 9.41.010 to mean:

            ". . . any firearm with a barrel less than twelve inches in length."

            As an exception to the above‑quoted statutory prohibition, however, RCW 9.41.060 provides that:

             [[Orig. Op. Page 2]] "The provisions of RCW 9.41.050 shall not apply to marshals, sheriffs, prison or jail wardens or their deputies, policemen or other law enforcement officers, or to members of the army, navy or marine corps of the United States or of the national guard or organized reserveswhen on duty, or to regularly enrolled members of any organization duly authorized to purchase or receive such weapons from the United States or from this state, or to regularly enrolled members of clubs organized for the purpose of target shooting or modern and antique firearm collecting or to individual hunters:  Provided, Such members are at, or are going to or from their places of target practice, or their collector's gun shows and exhibits, or are on a hunting, camping or fishing trip, or to officers or employees of the United States duly authorized to carry a concealed pistol, or to any person engaged in the business of manufacturing, repairing, or dealing in firearms or the agent or representative of any such person having in his possession, using, or carrying a pistol in the usual or ordinary course of such business, or to any person while carrying a pistol unloaded and in a secure wrapper from the place of purchase to his home or place of business or to a place of repair or back to his home or place of business or in moving from one place of abode or business to another."  (Emphasis supplied.)

            The issue raised by your first question is whether the phrase "when on duty," which we have above underscored, modifies all of the cases which precede it.  It is our opinion, grammatically and legally, that it does not.

            The applicable rule of construction is set forth in Martin v. Aleinikoff, 63 Wn.2d 842, 846, 389 P.2d 422 (1964), quoting fromDavis v. Gibbs, 39 Wn.2d 481, 483, 236 P.2d 545 (1951), as follows:

            "'Where no contrary intention appears in a statute, relative and qualifying words and phrases, both grammatically and legally, refer to the last antecedent.  [authorities cited]'  (Italics ours.)  Accord:  Parkhurst v. Everett, 51 Wn.(2d) 292, 295, 318 P.  [[Orig. Op. Page 3]] (2d) 327 (1957); In re Andy, 49 Wn.(2d) 449, 451, 302 P.(2d) 963 (1956)."

            We find no evidence of any contrary intent in RCW 9.41.060.  By that point in the statute at which the phrase "when on duty" appears, the statute has dealt with two distinct classes of persons.  First, it has dealt with ". . . marshals, sheriffs, prison or jail wardens or their deputies, policemen or other law enforcement officers, . . ." and then, secondly, the statute has covered, after the separating words "or to," the following:

            ". . . members of the army, navy or marine corps of the United States or of the national guard or organized reserves . . ."

            The words "when on duty" appear in the statute only as a modification of this second category of individuals listed.  Thus it follows, in our opinion, that it is only those individuals, and not such as fall within the first category above enunciated, who must be on duty in order to obtain the benefit of the statutory exemption to RCW 9.41.050 which is provided for by RCW 9.41.060.  For this reason we must answer your initial question, as above paraphrased, in the negative.

            With regard to your second question, we find nothing in RCW 9.41.060 which purports to distinguish in any way between law enforcement officers of our own state or its political subdivisions and those from other states or municipalities.  For that reason, we answer this question in the affirmative.  Of course, if the legislature, being now in session, desires to change that result or, in response to our answer to your first question, to impose an "on duty" requirement for law enforcement personnel as well as the military, it is entirely free to do so.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General