Whether A Criminal Conviction In A Foreign Country Disqualifies An Applicant From Obtaining A Concealed Pistol License

FIREARMS—CRIMES—Whether A Criminal Conviction In A Foreign Country Disqualifies An Applicant From Obtaining A Concealed Pistol License

1. An individual who has been convicted in a foreign country of a crime that is comparable to a felony under Washington law is prohibited from possessing a firearm in Washington and, accordingly, is ineligible for a concealed pistol license.

2. An issuing authority is prohibited from issuing a concealed pistol license to any applicant with a foreign conviction comparable to a Washington felony.
    

June 2, 2014

Dear Representative Overstreet:

By letter previously acknowledged, you have requested our opinion on two questions we have paraphrased as follows:

1. Is an individual who has been convicted of aggravated assault or another serious offense in a foreign country prohibited from obtaining a concealed pistol license in Washington State?

2. Must the issuing authority issue a concealed pistol license to an applicant notwithstanding the applicant’s criminal conviction of aggravated assault or another serious offense in a foreign country?

BRIEF ANSWER

    If an individual has been convicted in a foreign country of a crime that is comparable to a serious offense or any other felony under Washington law, he or she is prohibited from possessing a firearm in Washington and, accordingly, ineligible for a concealed pistol license (CPL).  Whether a foreign conviction[1] is comparable to a disqualifying Washington offense is determined on a case-by-case basis considering the applicable law in both jurisdictions and, when necessary, the facts underlying the foreign conviction.

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    The answer to your second question depends upon whether the foreign conviction is comparable to a disqualifying Washington conviction.  If it is comparable, the issuing authority is prohibited from issuing the CPL.  If it is not, the issuing authority must issue the CPL to an otherwise qualified applicant.

FACTUAL BACKGROUND

 

    Your request sets forth an actual scenario involving a nonresident who sought and was denied a CPL from one municipality or county in Washington State, but received a CPL from a different Washington State municipality or county.  CPLs are issued by the chief of police of the municipality or the sheriff of the county in which the applicant resides.  RCW 9.41.070(1), (13).  If the applicant is a nonresident, he or she may apply to any municipality or county.  RCW 9.41.070(13)(c).  The purpose of this opinion is to provide a legal analysis of the questions posed and not to resolve a specific controversy.  Consequently, this opinion should not be construed as advice as to whether a CPL should be issued to a specific individual.  While this opinion does not address any particular circumstance, it is helpful to describe a hypothetical set of facts we can use to discuss and analyze your questions in context.

    Your questions arise in the context of an individual with dual American and Canadian citizenship who currently resides in Canada.  This individual has no criminal convictions in the United States.  He does, however, have a conviction in Canada for assault with a deadly weapon, a conviction that would disqualify him from obtaining a CPL if it were a Washington conviction.[2]  You have asked us whether the Canadian conviction disqualifies the individual from the legal authority to possess a firearm and receive a CPL in Washington State.
  

LEGAL BACKGROUND: THE UNIFORM FIREARMS ACT

 

    In 1935, the legislature adopted the Uniform Firearms Act, which regulates the use and purchase of firearms and other weapons.  Laws of 1935, ch. 172.  The law in its current form prohibits persons from possessing firearms if they were “previously [] convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense,” any other felony, or certain misdemeanors when committed by one family or household member against another.[3]  RCW 9.41.040(1), (2) (emphasis added).  The Act specifically defines “felony” and “serious offense” to include “any federal or out-of-state” conviction that is comparable to a felony or serious offense under Washington law.  RCW 9.41.010(6), (18)(o).

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    Individuals ineligible to possess a firearm under RCW 9.41.040 are also ineligible for CPLs.  RCW 9.41.070(1)(a).  Issuing authorities “shall deny a permit to anyone who is found to be prohibited from possessing a firearm under federal or state law.”  RCW 9.41.070(2)(b).  CPLs should also be denied in certain other circumstances, such as when the applicant is under twenty-one years of age, is free on bond pending trial for a felony offense, or has been subjected to a court order regarding firearms.  RCW 9.41.070(1)(b)-(g).  Aside from the reasons set forth in the statute, however, the legislature instructs that issuing authorities “shall” issue a license, and that the applicant’s “constitutional right to bear arms shall not be denied[.]”[4]  RCW 9.41.070(1).

    As previously noted, both a “felony” and a “serious offense” as defined by the Uniform Firearms Act include “any federal or out-of-state offense comparable” to either a felony or serious offense under Washington law.  RCW 9.41.010(6), (18)(o).  To determine whether an out-of-state conviction would disqualify an individual from possessing a firearm under Washington law pursuant to RCW 9.41.040, Washington courts apply the same analysis used for determining comparability of out-of-state convictions for sentencing purposes.  State v. Stevens, 137 Wn. App. 460, 465, ¶ 6, 153 P.3d 903 (2007), review denied, 162 Wn.2d 1012, 175 P.3d 1094 (citing RCW 9.41.040(1)(a); RCW 9.94A.525(3)).  Under that analysis, an out-of-state conviction is classified “according to the comparable offense definitions and sentences provided in Washington law.”  Stevens, 137 Wn. App. at 465, ¶ 6.  This entails three steps:  “(1) identify the comparable Washington offense, (2) classify the comparable Washington offense, and (3) treat the out-of-state conviction as if it were a conviction for the comparable Washington offense.”  Id. at 465, ¶ 7.  If the elements of the out-of-state and Washington state crime are not identical, “it may be necessary to look into the record of the out-of-state conviction to determine whether the defendant’s conduct would have violated the comparable Washington offense.”  State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999).  In determining comparability of the prior offense, courts may “consider only facts that were admitted, stipulated to, or proved beyond a reasonable doubt.”  State v. Olsen, No. 89134-6, 2014 WL 1942102, at *3 (Wash. May 15, 2014).

    Additionally, in order for RCW 9.41.040 to apply, the predicate conviction must be constitutionally valid.  State v. Gore, 101 Wn.2d 481, 485-86, 681 P.2d 227 (1984).  Once the defendant challenges the constitutionality of a prior conviction that the state wishes to use as a predicate offense for a violation of RCW 9.41.040, the state must prove beyond a reasonable doubt that the predicate conviction is constitutionally valid.  Id. at 486; State v. Swindell, 93 Wn.2d. 192, 196-97, 607 P.2d 852 (1980).

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    With this background, we now turn to your specific questions of (1) whether a foreign conviction may be the predicate conviction disqualifying an individual from possessing a firearm and obtaining a CPL, and (2) whether an issuing authority may deny a CPL based on the foreign conviction. 
  

ANALYSIS

1. Is an individual who has been convicted of aggravated assault or another serious offense in a foreign country prohibited from obtaining a concealed pistol license in Washington State?

    An applicant who is ineligible to possess a firearm under RCW 9.41.040 is also ineligible for a CPL.  RCW 9.41.070(1)(a), 2(a)-(b).  Therefore, to answer your question, we must first decide whether a foreign conviction disqualifies an individual from possessing a firearm under RCW 9.41.040.  That statute provides that a person is guilty of unlawful possession of a firearm if the person “owns, has in his or her possession, or has in his or her control any firearm” after having been previously convicted or found not guilty by reason of insanity “in this state or elsewhere” of one or more crimes referenced in the statute.  RCW 9.41.040(1)(a).

    The answer to your first question hinges on whether, when the legislature used the phrases “or elsewhere” in RCW 9.41.040(1)(a) and “out-of-state” in RCW 9.41.010(6) and (18)(o), it intended to include convictions in foreign countries.  As you note in your request, there does not appear to be any Washington case law interpreting the “or elsewhere” language in RCW 9.41.040 to determine whether it pertains to convictions for equivalent offenses in foreign countries.  Although the Act has been amended several times over the years, the “or elsewhere” language has existed since the first enactment in 1935.  Laws of 1935, ch. 172, § 4; Laws of 1961, ch. 124, § 3; Laws of 1983, ch. 232, § 2; Laws of 1994, 1st Sp. Sess., ch. 7, § 402.  Similarly, there does not appear to be any Washington case law determining whether RCW 9.41.010(6) and (18)(o), which define “felony” and “serious offense,” include foreign convictions.

    We do, however, have the benefit of case law addressing a similar statute with identical language.  In State v. Morley, 134 Wn.2d 588, 599-600, 952 P.2d 167 (1998), the Washington Supreme Court decided that a military court martial could be included as part of a defendant’s criminal history during sentencing pursuant to the Sentencing Reform Act of 1981, RCW 9.94A.  In so deciding, the court broadly interpreted the term “or elsewhere” to include “all foreign convictions, whether from other state courts, federal courts, military courts, and perhaps even courts in foreign countries.”  Morley, 134 Wn.2d at 599 (interpreting former RCW 9.94A.030(12)(a) (1996)) (citing Webster’s Third International Dictionary 737 (1986); State v. Herzog, 48 Wn. App. 831, 740 P.2d 380 (1987)).  The Court further noted that “out-of-state” is “equally broad in its scope.”  Id. at 600 (interpreting former RCW 9.94A.360(3) (1996)).  While the Court did opine that the terms “or elsewhere” and “out-of-state” are broad, and might include foreign countries, it has not had occasion to resolve that issue.  Several courts have noted that the purpose of the statutes providing that out-of-state convictions be classified according to

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comparable offenses under Washington law is to treat people convicted outside the state as if they had been convicted in Washington.  See, e.g., Stevens, 137 Wn. App. at 465, ¶ 6; State v. Winings, 126 Wn. App. 75, 94, ¶ 36, 107 P.3d 141 (2005).

    We have been able to locate one case in which a Washington court considered whether a foreign conviction would count against a defendant in sentencing. Applying the Sentencing Reform Act, the Court of Appeals considered whether a West German conviction could be used to determine a defendant’s offender score under RCW 9.94A.360.  Herzog, 48 Wn. App. at 832‑34.  In that case, however, the court concluded that the West German conviction was constitutionally invalid because it was procured by a two-person jury and, as a result, could not be considered in the defendant’s offender score.  Id.  It does not appear the court or the defendant questioned whether a foreign conviction could be used in sentencing at all, instead assuming that it could if it was constitutionally valid.

    While none of these cases absolutely controls here, the Washington Supreme Court’s discussion in Morley strongly suggests that the plain meaning of “elsewhere” and “out-of-state” include foreign jurisdictions.  Morley, 134 Wn.2d at 599-600.  The plain meaning of statutory language is of course the primary focus in statutory construction (Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186 (2010)), and as the Supreme Court noted in Morley, “elsewhere” “could hardly be considered ambiguous.”  Morely, 134 Wn.2d  at 599.  “The term is all-encompassing and it contains no restrictions.”  Id.   “The term, out-of-state, is equally broad in its scope.”  Id. at 600.  In light of this plain meaning, we believe that these statutory phrases include foreign convictions.

    As you mentioned in your request, the United States Supreme Court has taken a more restrictive approach under a different statutory framework.  See Small v. United States, 544 U.S. 385, 125 S. Ct. 1752, 161 L. Ed. 2d 651 (2005).  In Small, the Court was interpreting the federal Gun Control Act, which prohibits firearm possession by a person “‘who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[.]’”  Id. at 387 (quoting 18 U.S.C. § 922(g)(1)).  The Court concluded that the phrase “convicted in any court” with reference to predicate offenses excluded convictions entered in foreign courts.  Id. at 394.

    Several concerns motivated the Court’s decision in Small.  First, under federal law, the predicate crimes subject to unlawful possession were defined by length of punishment, not by specific crimes or classifications of crimes.  Id. at 387.  Because conduct that is illegal in other countries may be legal in the United States, a contrary reading of the statute could have meant that a person would be barred from firearm possession for having done something overseas that would have been legal here.  Id. at 389.  Second, the Court was concerned that foreign legal systems may be “inconsistent with an American understanding of fairness.”  Id.  Third, the Court noted several anomalies that would be created by the broader interpretation.  For example, an exception to the federal prohibition on gun possession applied to “‘Federal or State’ antitrust or regulatory offenses.”  Id. at 391 (quoting 18 U.S.C. § 921(a)(20)(A)).  By its plain language, the exception would not apply to foreign antitrust or regulatory convictions.  Id.  Thus, if the law were interpreted broadly such that a conviction from another country could be the predicate

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offense, an individual convicted of a Canadian antitrust offense would be prohibited from possessing a gun, but an individual convicted of an antitrust offense in the United States would not.  Small, 544 U.S. at 391.  In light of these concerns, the Court presumed that Congress intended the statute to be “domestically oriented” (id. at 390), and thus intended to include only domestic convictions as predicate offenses to the federal possession statute.  Id. at 392.  

    None of the concerns the Court noted in Small arise from interpreting Washington law to include foreign convictions.  First, because RCW 9.41.070 defines the predicate offense by specific categories of crimes, rather than the length of punishment, there is no concern that punishment in another country for conduct our country permits could subject the individual to liability for possessing a weapon in Washington.  In Washington, an out-of-state conviction constitutes a disqualifying “felony” or “serious offense” under the Uniform Firearms Act only if it is comparable to a Washington “felony” or “serious offense.”  RCW 9.41.010(6), (18)(o).  Thus, for RCW 9.41.070 to apply, the individual must have been convicted of a crime equivalent to a disqualifying crime under Washington law.  RCW 9.41.070(1)-(2); RCW 9.41.010(6), (18)(o); Stevens, 137 Wn. App. at 465, ¶ 6.[5] 

    Second, under Washington law, a necessary element of unlawful possession under RCW 9.41.040 is a constitutionally valid predicate offense.  Gore, 101 Wn.2d at 485-86.  Defendants are permitted to challenge the possession charge by asserting that the underlying predicate conviction is constitutionally invalid, in which case the prosecutor has the burden of proving beyond a reasonable doubt that the predicate conviction is constitutionally valid.  Swindell, 93 Wn.2d at 197.  In contrast, under federal law, the criminal prohibition on possession of firearms applies “despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds.”  Lewis v. United States, 445 U.S. 55, 65, 100 S. Ct. 915, 63 L. Ed. 2d 198 (1980).

    Third, unlike the federal law interpreted in Small, there do not appear to be related statutes or exceptions to the possession statute applicable only to “federal or state” convictions that would suggest the legislature intended to include only state or federal convictions to begin with.  Indeed, whereas the United States Supreme Court presumed that Congress intended to limit the scope of this federal law to the federal government’s territorial reach (Small, 544 U.S. at 390), here the statute’s plain language—referencing convictions “out-of-state” and “elsewhere”—makes clear that Washington’s legislature intended to include convictions from beyond Washington’s borders in the analysis.

    Given the legislature’s use of the broad terms “out-of-state” and “elsewhere,” and the lack of evidence that the legislature intended to limit the plain meaning of these terms, we conclude that a conviction in a foreign country would disqualify an individual from the right to possess a firearm in Washington State if the foreign conviction is equivalent to a serious offense or other felony under Washington law.

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2. Must the issuing authority issue a concealed pistol license to an applicant notwithstanding the applicant’s criminal conviction of aggravated assault or another serious offense in a foreign country? 

    Based upon our answer to your first question, the issuing authority would be legally required to deny the CPL if the foreign conviction was comparable to a disqualifying Washington conviction.  On the other hand, if the foreign conviction is not comparable to a disqualifying Washington conviction, then the issuing authority would be required to issue the CPL to an otherwise qualified individual.  RCW 9.41.070(1).

    We recognize that issuing authorities may face some challenges in applying this statute.  In particular, the statute specifies no procedure by which county and city officials should determine the comparability of potentially disqualifying offenses.  Nonetheless, for purposes of determining eligibility for a CPL, the legislature requires local issuing authorities to make that initial determination of whether an applicant is ineligible under RCW 9.41.040 to possess a firearm.  RCW 9.41.070(2).  We believe the approach described in Washington precedent provides a roadmap for issuing authorities.  See, e.g., Stevens, 137 Wn. App. at 465, ¶ 6; Ford, 137 Wn.2d at 479; Olsen, 2014 WL 1942102, at *3.

    Finally, we would like to underscore that this opinion is limited only to Washington State statutory provisions regarding firearm possession.  Federal law imposes its own set of conditions regarding firearm possession, which can be different from our state law.  The CPL statute acknowledges these differences with the following language to be set forth in the license and application:

CAUTION:  Although state and local laws do not differ, federal law and state law on the possession of firearms differ.  If you are prohibited by federal law from possessing a firearm, you may be prosecuted in federal court.  A state license is not a defense to a federal prosecution.

RCW 9.41.070(4).

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
    Attorney General     

ALICIA O. YOUNG
    Assistant Attorney General 
    (360)586-6300

wros
  

[1] Courts tend to use the phrase “foreign conviction” to reference any conviction other than from the state at issue (to include convictions from other states and the federal government).  See, e.g., State v. Morley, 134 Wn.2d 588, 599-600, 952 P.2d 167 (1998).  In this opinion, we use the term “foreign convictions” exclusively to reference convictions from other countries.

[2] Assault with a firearm or any deadly weapon is a felony.  RCW 9A.36.011, .021.  It also constitutes a “serious offense” under RCW 9.41.010(18)(o).

[3] A person previously convicted of a “serious offense” who possesses a firearm is subject to charges for unlawful possession of a firearm in the first degree, and a person convicted of any other felony or the misdemeanors identified in RCW 9.41.040(2)(a)(i) is subject to unlawful possession of a firearm in the second degree.  RCW 9.41.040(1), (2).

[4] We are aware of one situation in which our office concluded that a reason not stated in the statute would be sufficient grounds for denying a CPL.  In a 1987 opinion, we were asked whether an issuing authority could refuse issuance of a CPL if the applicant stated his or her intent to commit a crime in the future.  AGO 1987 No. 28, at 5-6.  We qualifiedly opined that a CPL could be denied under such circumstances, but noted that the issue was ripe for legislative action.  Id. at 6.  Our opinion was based on the conclusion that the statutes must be construed so as to avoid strained or absurd consequences that could result from a literal reading.  Id. at 5 (citing Marine Power & Equip. Co. v. Dep’t of Transp., 102 Wn.2d 457, 687 P.2d 202 (1984); State v. Keller, 98 Wn.2d 725, 728, 657 P.2d 1384 (1983)).

[5] Because your question focuses on felonies and serious offenses, we do not address the question of whether the same analysis applies to the misdemeanors enumerated in RCW 9.41.040(2)(a)(i).