State v. Anderson

"[W]hether a statute defines a strict liability crime is a question of statutory construction focusing on legislative intent." State v. Groom, 133 Wash.2d 679, 688, 947 P.2d 240 (1997). Here, the majority ignores the Legislature's clear intent to impose strict liability. Thus, I respectfully dissent.

While I do not fault the majority's reliance on the eight, nonexclusive factors cited in State v. Bash, I take issue with the majority's application thereof. To begin with, there are at least three defects in the majority's analysis of RCW 9.41.040's legislative history. First, in support of its conclusion that we should insert a mental element within RCW 9.41.040, the majority relies heavily upon the fact that "the Legislature did not employ ... measures it could easily have used to evidence an intent to make the offense a strict liability crime [, such as removing an existing intent element.]" The majority overemphasizes the absence of these "measures"; these "measures" are merely indicators of strict liability and not requirements to a finding thereof.

Ironically, the third defect in the majority's analysis also involves the inferences that can or should be drawn from legislative silence. In its opinion, the Majority makes no mention of the fact that in a similar weapons possession statute, RCW 9.41.300, the Legislature explicitly included a mental element. This statute, which prohibits the possession of a firearm in certain restricted areas, specifically requires that the person "knowingly [possess] or knowingly [have] under his or her control a weapon." RCW 9.41.300(1) (emphasis added). As this statute clearly demonstrates, the Legislature knows how to require "knowing possession." Thus, omitting the same mental element in a similar weapons possession statute, such as RCW 9.41.040, strongly indicates that the omission was purposeful and that strict liability was intended.

Moving to the other factors cited in Bash, they either support the presumption in favor of strict liability created by the statute's legislative history or fail to overcome it. Beginning with the second Bash factor, the majority completely ignores the Legislature's intent to address the crime of unlawful possession of a firearm as a "public welfare," and thus a strict liability, offense.

"Public welfare offenses" are a subset of malum prohibitum offenses as they are typically regulatory in nature and often " 'result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.' " In Washington, public welfare offenses relate to public health and safety, including highway safety.

Prior to Bash, Washington courts generally imposed strict liability for malum prohibitum offenses. The problem with that approach, however, was that the analysis was often circular and arbitrary: It hardly seems helpful to say that a crime which requires no bad intent is malum prohibitum, and that therefore no bad intent is required to commit the crime.

Our decision in Bash marked a change in that approach. With that case, the malum in se/prohibitum distinction was relegated to only one of eight, nonexclusive factors for determining the Legislature's intent to impose strict liability.

The majority opinion attempts to take this relegation one step further. Through its cursory examination, the majority essentially removes this factor from the analysis without ever discussing its rationale for doing so. The Legislature's intent to treat a crime as a public welfare offense, however, remains an important indicator of strict liability.

Applying the second factor to the instant case, it becomes even more clear that strict liability should be imposed. In its 1994 amendments to chapter 9.41 RCW, the Legislature noted that "the increasing violence in our society causes great concern for the immediate health and safety of our citizens." Laws of 1994, 1st Sp. Sess., ch. 7, § 101 (emphasis added). The Legislature further stated: "State efforts at reducing violence must include changes in criminal penalties, reducing the unlawful use of and access to firearms." Id. By noting its concerns for the public's "immediate health and safety" created by the "unlawful use of and access to firearms," the Legislature clearly indicated its intent to treat unlawful gun possession as a public welfare offense. This fact is reinforced by the Legislature's subsequent statement that "the problem of violence can be addressed with many of the same approaches " as used with other public welfare offenses.

Turning to the third Bash factor, I find the majority's concern that imposing strict liability would lead to criminalizing apparently innocent conduct misplaced and unwarranted. First, felons do not lose their right to possess firearms accidentally. As the Legislature itself recognized in enacting RCW 9.41.040, felons have demonstrated that they present an ongoing threat to society. Consequently, it does not seem unduly burdensome to require felons to take extra precautions to ensure that they are not in possession of firearms.

Second, in its haste to rewrite legislation, the majority ignores the fact that all strict liability crimes have the potential of sweeping in apparently innocent actors, at least initially. If we were to impute a mental element whenever it becomes a possibility, we would be forever frustrating the Legislature's intent to impose strict liability.

Finally, even if we were to assume that imposing strict liability would unfairly criminalize apparently innocent behavior, any unfairness is ameliorated by the availability of unwitting possession as an affirmative defense. Consequently, the risk of overburdening felons is significantly diminished and should not prevent this court from carrying out the Legislature's intent.

Regarding the harshness of the penalty imposed for violating RCW 9.41.040, the fourth Bash factor, the majority makes much of the fact that those found guilty of violating RCW 9.41.040 face up to five years' imprisonment. As the majority correctly points out, however, there remains no per se rule in Washington requiring a mental element for all felony offenses.In fact, in the very case the majority cites for this proposition, this court found a statute stated a strict liability offense even though violation of that statute warranted five years' imprisonment--the same maximum length of imprisonment involved here. Therefore, there is precedent for the proposition that strict liability may be imposed where lengthy terms of imprisonment are involved.

In applying the fifth Bash factor, the majority "fail[s] to see how [a felon's] unwitting possession of a firearm poses a significant danger to the public." The problem with the majority's position is a problem that plagues the majority's entire opinion-its failure to acknowledge that the Legislature, not this court, decides matters of legislative policy. Consequently, the Legislature is entitled to weigh, and in fact has weighed, the seriousness of harm to the public against the interests of felons and determined that the risk of harm to the public was both serious and high. See Laws of 1994, 1st Sp. Sess., ch. 7, § 101; see also Laws of 1995, ch. 129, § 1(a) ("Armed criminals pose an increasing and major threat to public safety[.]"). These findings are binding upon this court and, contrary to the majority's position, strongly favor imposing strict liability.

In its "seriousness of harm" discussion, the majority also asserts that imposing strict liability under the statute would not "further a goal of deterrence." The majority's view of deterrence, however, is too narrow. A comparison between this case and Bash illustrates this point.

In Bash, the court found that imposing strict liability under the dangerous dog statute would not accomplish the goal of deterrence "because unless the owner knows or reasonably should know of the dog's dangerous propensities, it is unlikely that the owner would think it necessary to use extraordinary care in controlling the dog." Here, however, felons should always be on alert regarding the presence of firearms. As even the majority acknowledges knowledge that the possession is unlawful is imputed to all felons. Thus, imposing strict liability simply gives felons an additional incentive to take extra precautions to avoid firearms and, in turn, creates an even greater deterrent effect.

Regarding the remaining Bash factors, the majority is correct that they add little to the determination in this case. Consequently, based on the factors discussed above, it appears that the majority attempts to contradict the Legislature's clear intent to strict liability and rewrites a statute it deems unduly harsh. The Court of Appeals should be affirmed.

SMITH, TALMADGE, and BRIDGE, JJ., concur.