2023 Revised Code of Washington › Title 9 - Crimes and Punishments › Chapter 9.41 - Firearms and Dangerous Weapons. › 9.41.040 - Unlawful possession of firearms—Penalties.

RCW 9.41.040
Unlawful possession of firearms—Penalties.
(1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, accesses, has in the person's custody, control, or possession, or receives any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense.
(b) Unlawful possession of a firearm in the first degree is a class B felony punishable according to chapter 9A.20 RCW.
(2)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, accesses, has in the person's custody, control, or possession, or receives any firearm:
(i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of:
(A) Any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section;
(B) Any of the following crimes when committed by one family or household member against another or by one intimate partner against another, as those terms are defined by the statutes in effect at the time of the commission of the crime, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence (RCW 10.99.040 or any of the former RCW 26.50.060, 26.50.070, and 26.50.130);
(C) Harassment when committed by one family or household member against another or by one intimate partner against another, as those terms are defined by the statutes in effect at the time of the commission of the crime, committed on or after June 7, 2018;
(D) Any of the following misdemeanor or gross misdemeanor crimes not included under (a)(i) (B) or (C) of this subsection, committed on or after July 23, 2023: Domestic violence (RCW 10.99.020); stalking; cyberstalking; cyber harassment, excluding cyber harassment committed solely pursuant to the element set forth in RCW 9A.90.120(1)(a)(i); harassment; aiming or discharging a firearm (RCW 9.41.230); unlawful carrying or handling of a firearm (RCW 9.41.270); animal cruelty in the second degree committed under RCW 16.52.207(1); or any prior offense as defined in RCW 46.61.5055(14) if committed within seven years of a conviction for any other prior offense under RCW 46.61.5055;
(E) A violation of the provisions of a protection order under chapter 7.105 RCW restraining the person or excluding the person from a residence, when committed by one family or household member against another or by one intimate partner against another, committed on or after July 1, 2022; or
(F) A violation of the provisions of an order to surrender and prohibit weapons, an extreme risk protection order, or the provisions of any other protection order or no-contact order not included under (a)(i) (B) or (E) of this subsection restraining the person or excluding the person from a residence, committed on or after July 23, 2023;
(ii) During any period of time that the person is subject to a protection order, no-contact order, or restraining order by a court issued under chapter 7.105, 9A.40, 9A.44, 9A.46, 9A.88, 10.99, 26.09, 26.26A, or 26.26B RCW or any of the former chapters 7.90, 7.92, 10.14, and 26.50 RCW that:
(A) Was issued after a hearing for which the person received actual notice, and at which the person had an opportunity to participate, whether the court then issues a full order or reissues a temporary order. If the court enters an agreed order by the parties without a hearing, such an order meets the requirements of this subsection;
(B) Restrains the person from harassing, stalking, or threatening the person protected under the order or child of the person or protected person, or others identified in the order, or engaging in other conduct that would place the protected person in reasonable fear of bodily injury to the protected person or child or others identified in the order; and
(C)(I) Includes a finding that the person represents a credible threat to the physical safety of the protected person or child or others identified in the order, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the protected person or child or other persons that would reasonably be expected to cause bodily injury; or
(II) Includes an order under RCW 9.41.800 requiring the person to surrender all firearms and prohibiting the person from accessing, having in his or her custody or control, possessing, purchasing, receiving, or attempting to purchase or receive, firearms;
(iii) After having previously been involuntarily committed based on a mental disorder under RCW 71.05.240, 71.05.320, 71.34.740, 71.34.750, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047;
(iv) After dismissal of criminal charges based on incompetency to stand trial under RCW 10.77.088 when the court has made a finding indicating that the defendant has a history of one or more violent acts, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047;
(v) If the person is under 18 years of age, except as provided in RCW 9.41.042; and/or
(vi) If the person is free on bond or personal recognizance pending trial for a serious offense as defined in RCW 9.41.010.
(b) Unlawful possession of a firearm in the second degree is a class C felony punishable according to chapter 9A.20 RCW.
(3) A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Where no record of the court's disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge.
(4) Notwithstanding subsection (1) or (2) of this section, a person convicted or found not guilty by reason of insanity of an offense prohibiting the possession of a firearm under this section other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401 and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction or finding of not guilty by reason of insanity.
(5) In addition to any other penalty provided for by law, if a person under the age of 18 years is found by a court to have possessed a firearm in a vehicle in violation of subsection (1) or (2) of this section or to have committed an offense while armed with a firearm during which offense a motor vehicle served an integral function, the court shall notify the department of licensing within 24 hours and the person's privilege to drive shall be revoked under RCW 46.20.265, unless the offense is the juvenile's first offense in violation of this section and has not committed an offense while armed with a firearm, an unlawful possession of a firearm offense, or an offense in violation of chapter 66.44, 69.52, 69.41, or 69.50 RCW.
(6) Nothing in chapter 129, Laws of 1995 shall ever be construed or interpreted as preventing an offender from being charged and subsequently convicted for the separate felony crimes of theft of a firearm or possession of a stolen firearm, or both, in addition to being charged and subsequently convicted under this section for unlawful possession of a firearm in the first or second degree. Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection.
(7)(a) A person, whether an adult or a juvenile, commits the civil infraction of unlawful possession of a firearm if the person has in the person's possession or has in the person's control a firearm after the person files a voluntary waiver of firearm rights under RCW 9.41.350 and the form has been accepted by the clerk of the court and the voluntary waiver has not been lawfully revoked.
(b) The civil infraction of unlawful possession of a firearm is a class 4 civil infraction punishable according to chapter 7.80 RCW.
(c) Each firearm unlawfully possessed under this subsection (7) shall be a separate infraction.
(d) The court may, in its discretion, order performance of up to two hours of community restitution in lieu of a monetary penalty prescribed for a civil infraction under this subsection (7).
(8) Each firearm unlawfully possessed under this section shall be a separate offense.
(9) A person may petition to restore the right to possess a firearm as provided in RCW 9.41.041.
[ 2023 c 295 § 3; 2023 c 262 § 2; 2022 c 268 § 28; 2021 c 215 § 72; 2020 c 29 § 4. Prior: 2019 c 248 § 2; 2019 c 245 § 3; 2019 c 46 § 5003; 2018 c 234 § 1; 2017 c 233 § 4; 2016 c 136 § 7; 2014 c 111 § 1; 2011 c 193 § 1; 2009 c 293 § 1; 2005 c 453 § 1; 2003 c 53 § 26; 1997 c 338 § 47; 1996 c 295 § 2; prior: 1995 c 129 § 16 (Initiative Measure No. 159); 1994 sp.s. c 7 § 402; prior: 1992 c 205 § 118; 1992 c 168 § 2; 1983 c 232 § 2; 1961 c 124 § 3; 1935 c 172 § 4; RRS § 2516-4.]
NOTES:
Reviser's note: This section was amended by 2023 c 262 § 2 and by 2023 c 295 § 3, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1).
Findings—Intent—2023 c 295: "(1) The legislature finds that gun violence is a multifaceted public health problem that includes suicide, homicide, intimate partner violence, community violence, mass violence, nonfatal gunshot injuries and threats, with community violence and mass violence often committed by those with a history of domestic violence. National data indicates that in 2021, approximately 20,996 Americans died by firearm homicide and that 81 percent of all homicides are committed with a firearm. According to United States centers for disease control and prevention data, gun homicide disproportionately impacts people of color, especially Black males ages 15 to 34, who are 20 times more likely to die by gun violence than white males in the same age group. Black, Indigenous, and Latinx women are at higher risk for intimate partner violence-related homicide, and disparities in homicide rates are especially pronounced among women between 18 and 29 years of age. Nearly 60 percent of intimate partner violence-related homicides involve firearms.
(2) When perpetrators of intimate partner violence, including physical violence, sexual abuse, stalking, and psychological aggression of a current or former intimate partner, have access to firearms, women are especially at risk of serious or deadly harm. When an abusive partner or former partner owns or has access to a firearm, the likelihood of intimate partner homicide increases by a factor of five. Women in the United States are 21 times more likely to be killed with a gun than women in other high-income countries. There are about 4,500,000 women in America who have been threatened with a gun and nearly 1,000,000 women who have been shot or shot at by an intimate partner. Perpetrators of intimate partner violence who have access to firearms also use them to coerce, control, and intimidate their partners.
(3) Many who seek protection from harm through the civil legal system, and obtain a protection order and an order to surrender and prohibit weapons, may not wish to engage the criminal legal system or to have the threat or violence they have experienced be prosecuted. According to the national intimate partner and sexual violence survey, more than one in two non-Hispanic Black women, American Indian, or Alaskan Native women, three in five multiracial non-Hispanic women, and two in five Hispanic women have been a victim of physical violence, rape, and/or stalking by a partner in their lifetime. But they are far less likely to report the crimes, due to distrust of the criminal legal system, intergenerational trauma, fear of police interaction, and concern about over incarceration. For many, the threat of violence continues over a long period of time, making it critical that access to firearms is appropriately limited when there are ongoing indicators of risk as reflected by a protection order, an order to surrender and prohibit weapons, or violations of these orders.
(4) An extensive body of research has identified specific risk factors that increase the likelihood of individuals engaging in future violence, including gun violence, and presenting further risk to public safety. The strongest predictor of future violence is prior violent behavior, including perpetration of domestic violence and violent misdemeanors. Other particularly strong risk factors for future violence include recent violation of a domestic violence protection order or other protection order; frequent risky alcohol use or certain types of controlled substance use; and cruelty to animals. Unlawful or reckless use, display, or brandishing of a firearm and recent acquisition of firearms, ammunition, or other deadly weapons are also risk factors for future violence, as is access to firearms in general. Multiple research studies have also shown that easy access to firearms by the general public increases risk of death by both homicide and suicide. Individuals returning from incarceration are a vulnerable population for whom these risks may be compounded. Furthermore, homicide and suicide (by any means) are leading causes of death for returning residents after they are released from prison, especially soon after release. Research provides important guidance regarding events that should result in temporary prohibition of firearm rights so that the laws regarding firearm possession and the restoration of firearm rights are grounded in risk assessment data to help protect public health and safety while upholding individual liberty. These changes are not intended to punish, but to provide a regulatory framework to help ensure the safety of those with a heightened risk of experiencing gun violence.
(5) The laws requiring certain individuals who are subject to protection orders, no-contact orders, or restraining orders to immediately relinquish dangerous weapons and concealed pistol licenses, and be prohibited from possessing or purchasing firearms, have been strengthened in recent years to help better address the risks that access to firearms by those individuals poses for survivors and their children. The legislature finds that similarly strengthening the laws regarding unlawful possession and restoration of firearm rights will protect these survivors, and their families and communities, from added risk of harm, and include their personal knowledge regarding possible violations of firearm prohibitions in the restoration petition process.
(6) The legislature also finds it would be helpful to refine statutory language that was at issue in the Washington state supreme court's decision in State v. Dennis, 191 Wn.2d 169 (2018). In that decision, the court held that absent more specific language in RCW 9.41.040 regarding the five-year waiting period before a person may petition to have the person's firearm rights restored, the requisite waiting period may include any conviction-free period of five or more consecutive years, even if a person had been convicted of a new crime within the five years immediately preceding the person's filing of a petition for restoration of firearm rights. The legislature intends to clarify that a person may not petition to have the person's firearm rights restored if the person has been convicted of a new prohibiting crime within the specified number of consecutive years immediately preceding the person's filing of a petition.
(7) The legislature also finds that it is important to recognize and remove barriers for individuals who have demonstrated that they have safely reintegrated into their communities." [ 2023 c 295 § 1.]
Effective dates—2022 c 268: See note following RCW 7.105.010.
Effective date—2022 c 268; 2021 c 215: See note following RCW 7.105.900.
Effective date—2020 c 29: See note following RCW 7.77.060.
Severability—2005 c 453: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 2005 c 453 § 7.]
Intent—Effective date—2003 c 53: See notes following RCW 2.48.180.
Finding—Evaluation—Report—1997 c 338: See note following RCW 13.40.0357.
Severability—Effective dates—1997 c 338: See notes following RCW 5.60.060.
Findings and intent—Short title—Severability—Captions not law—1995 c 129: See notes following RCW 9.94A.510.
Finding—Intent—Severability—1994 sp.s. c 7: See notes following RCW 43.70.540.
Effective date—1994 sp.s. c 7 §§ 401-410, 413-416, 418-437, and 439-460: See note following RCW 9.41.010.
Part headings not law—Severability—1992 c 205: See notes following RCW 13.40.010.
Severability—1992 c 168: See note following RCW 9.41.070.
Severability—1983 c 232: See note following RCW 9.41.010.