Barr v. Snohomish County Sheriff
Barr v. Snohomish County Sheriff
Opinion
*132
*332
¶ 1 This case asks us to decide whether the Snohomish County sheriff (the Sheriff) is required to issue a concealed pistol license (CPL) to an individual whose sealed juvenile record includes adjudications for class A felonies. In this case, the answer is no. The Sheriff is not required to issue a CPL to a person who "is prohibited from possessing a firearm under federal law." RCW 9.41.070(1)(a). Due to respondent Jerry Barr's class A felony adjudications, federal
*333
law provides that it is unlawful for him to "possess in or affecting commerce, any firearm or ammunition."
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶ 2 In 1992, when he was a juvenile, Barr was adjudicated guilty of three offenses, two of which are classified as class A felonies. 1 His criminal history also includes three convictions as an adult between 1996 and 2000.
¶ 3 In 2016, Barr received an order restoring his firearm rights as to the three adult convictions and one of the offenses he committed as a juvenile. The order was issued pursuant to RCW 9.41.040(4), which allows a court to restore firearm rights after an individual has spent a number of consecutive years in the community without being convicted of any other crimes. RCW 9.41.040(4) does not apply to class A felonies and sex offenses.
¶ 4 Barr's remaining two juvenile adjudications are class A felonies. In September 2016, Barr secured orders sealing the records of these two adjudications and declaring that "[s]o long as this case remains sealed, the offenses ... do not prohibit [Barr] from possessing firearms under RCW 9.41.040." Clerk's Papers (CP) at 46-47.
¶ 5 With these orders in hand, Barr applied for a CPL from the Sheriff in November 2016. The Sheriff denied the application based on the two sealed class A felonies, which were revealed in a search of the National Instant Criminal Background Check System and the Washington State Patrol criminal history database. The Sheriff determined that the two class A felonies, whether sealed or not, prohibited
*334
Barr from possessing a firearm pursuant to
¶ 6 Barr petitioned the Thurston County Superior Court for a writ of mandamus requiring the Sheriff to issue the CPL. The writ was denied, and Barr sought review in the Court of Appeals. In a published decision, Division Two reversed and remanded with an order to issue the writ.
Barr v. Snohomish County Sheriff
, 4 Wash. App. 2d 85, 89,
ISSUES
¶ 7 A. Does the Sheriff have a mandatory duty to issue Barr a CPL?
¶ 8 B. Is Barr entitled to attorney fees and costs on review?
ANALYSIS
¶ 9 RCW 9.41.0975(2)(a) allows an applicant to petition for a writ of mandamus directing an issuing agency to issue a CPL "wrongfully refused." A CPL is wrongfully refused if the issuing agency has a mandatory duty to issue one and refuses to do so. See RCW 7.16.160 (writ issued to "compel the performance of an act which the law especially enjoins as a duty resulting from an office").
*133 We therefore must decide whether RCW 9.41.070 imposes a mandatory duty on the Sheriff to issue Barr a CPL. "The determination of whether a statute specifies a duty that the person must perform is a question of law."
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River Park Square, LLC v. Miggins
,
A. The Sheriff did not wrongfully refuse to issue Barr a CPL
¶ 10 To determine whether the Sheriff had a mandatory duty to issue a CPL to Barr, we look to the plain language of the CPL statute. RCW 9.41.070(1)(a) provides in relevant part that "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 or her person," unless the applicant "is prohibited from possessing a firearm under federal law." The issuing authority is required to perform a criminal history background check and "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).
¶ 11 Federal law provides that if a person "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year," then it is unlawful for that person to "possess in or affecting commerce, any firearm or ammunition."
2
¶ 12 Our inquiry is thus straightforward. First, we ask whether Barr has been convicted of a crime punishable by over one year of imprisonment pursuant to Washington law.
Van Der Hule v. Holder
,
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(quoting
United States v. Valerio
,
1. Barr's sealed juvenile adjudications are convictions
¶ 13 The parties do not dispute that Barr's juvenile adjudications qualified as "convictions" before they were sealed.
4
We agree with the parties on this point. Our state firearms statute provides that "a person has been 'convicted',
whether in an adult court or adjudicated in a juvenile court,
at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed." RCW 9.41.040(3) (emphasis added). The legislature has thus made it clear that in the context of firearm possession, an unsealed juvenile adjudication carries the same consequences as an adult conviction.
See
In re Det. of Anderson
,
¶ 14 The parties' disagreement focuses on what happens to disqualifying juvenile adjudications *134 after they are statutorily sealed. Barr argues that once the records of his juvenile adjudications were sealed, they were no longer *337 "convictions" because the record sealing statute provides that once the records are sealed, "the proceedings in the case shall be treated as if they never occurred." RCW 13.50.260(6)(a). Barr Teasons that if the proceedings are treated as if they never occurred, the result-a conviction-must also be treated as if it never occurred. Therefore, a sealed juvenile adjudication is no longer a "conviction."
¶ 15 The problem with this argument is that it sidesteps the required federal statutory analysis. Under that analysis, the question is not how a conviction is currently treated by state law. Instead the question is whether there was a conviction and, if so, whether a subsequent event has occurred such that the conviction is no longer "considered a conviction" that prohibits firearm possession pursuant to the federal statute.
¶ 16 Washington State law clearly provides that Barr's juvenile class A felonies are convictions punishable by over one year imprisonment. While the sealing order makes those convictions invisible to most people, they do still exist.
¶ 17 Moreover, it is evident that the Sheriff was required to consider Barr's juvenile class A adjudications when deciding whether to issue him a CPL. The Sheriff was required by statute to check "the Washington state patrol electronic database," RCW 9.41.070(2)(a), and the state patrol database must "provide[ ] criminal justice agencies access to sealed juvenile records information," RCW 13.50.260(8)(d). If the legislature requires law enforcement to *338 search a database that must contain information on sealed convictions, then the legislature must have intended that law enforcement use information about the sealed convictions in determining whether to issue a CPL.
¶ 18 Barr's juvenile adjudications are clearly convictions that do still exist as a matter of state law, the sealing order notwithstanding. We must therefore ask whether Barr has obtained expungement, setting aside, pardon, or restoration of civil rights in relation to those convictions.
2. None of the subsequent events specified by
¶ 19 As a matter of federal law, "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter."
¶ 20 Barr relies heavily on
In re Firearm Rights of Nelson
,
¶ 21 First, the issue in
Nelson
was whether, as a matter of state law, "carrying a firearm is unlawful for a person who committed serious offenses as a juvenile, but has since obtained a court order expunging the record of those offenses."
Id.
at 472,
¶ 22 Second,
Nelson
explicitly states that the juvenile records at issue there were expunged, while Barr's were merely sealed. Some courts have read
Nelson
to mean that "the sealing of a juvenile case constitutes expungement of the juvenile offense," but that is not the case.
Siperek,
¶ 23 For purposes of the federal firearms statutes, Barr's juvenile class A felonies are convictions punishable by over one year of imprisonment as a matter of state law. They remain convictions even though they have been sealed because they unquestionably still exist and the Sheriff was *340 required to access them through the Washington State Patrol electronic database to determine whether to issue Barr a CPL. Barr's convictions have not been expunged or set aside, and Barr has not received a pardon or restoration of civil rights for these convictions. The Sheriff therefore correctly determined that it was not required to issue Barr a CPL and Barr is not entitled to a writ of mandamus.
B. Barr is not entitled to attorney fees or costs on review
¶ 24 Barr requests attorney fees on review pursuant to RAP 18.1(a) and RCW 9.41.0975(2), which provides that an individual who successfully petitions for a writ of mandamus to obtain a CPL is entitled to reasonable attorney fees and costs. Because we hold Barr is not entitled to a writ of mandamus, he is not entitled to attorney fees or costs on review.
CONCLUSION
¶ 25 This case presents a narrow question to which we provide a narrow answer. The Sheriff was not required to issue Barr a CPL because, the sealing order notwithstanding, Barr's class A felony adjudications are predicate, disqualifying convictions for purposes of
WE CONCUR:
Fairhurst, C.J.
Johnson, J.
Madsen, J.
Owens, J.
Stephens, J.
González, J.
Wiggins, J.
Gordon McCloud, J.
Because the records of these juvenile adjudications are sealed, we do not identify the exact offenses.
"A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws."
If any such subsequent event had occurred, we would need to engage in a third step and ask whether the pardon, expungement, or restoration of civil rights expressly prohibits firearm possession.
Van Der Hule
,
It is also undisputed that the offenses at issue here were punishable by imprisonment over one year pursuant to Washington State law. See former RCW 13.40.0357 (1992).
As noted above, Barr did obtain an order in relation to his class A felonies declaring that "[s]o long as this case remains sealed, the offenses ... do not prohibit respondent from possessing firearms under RCW 9.41.040." CP at 46-47. However, this order does not restore his civil rights for purposes of
The parties disagree on whether Nelson was qualified to have his records expunged pursuant to the sealing and expungement statutes in place at the time. We need not decide that question. It is clear from the opinion that properly or not, Nelson's records were in fact expunged and destroyed.
Reference
- Full Case Name
- Jerry L. BARR III, Respondent, v. SNOHOMISH COUNTY SHERIFF, Petitioner.
- Cited By
- 11 cases
- Status
- Published