WPIC 133.02.08 Unlawful Possession of a Firearm—Second Degree—Subject to Qualifying Protection ...
11A WAPRAC WPIC 133.02.08Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 133.02.08 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XIII. Miscellaneous Crimes
WPIC CHAPTER 133. Weapon Offenses
WPIC 133.02.08 Unlawful Possession of a Firearm—Second Degree—Subject to Qualifying Protection Order—Elements
To convict the defendant of the crime of unlawfully possessing a firearm in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant [knowingly owned a firearm] [or] [knowingly had a firearm in [his] [her] possession or under [his] [her] control];
(2) That at that time, the defendant was subject to a [protection] [restraining] [no-contact] order that met all of the following five requirements:
(a) The [protection] [restraining] [no-contact] order was issued after a hearing of which the defendant received actual notice;
(b) The defendant had an opportunity to participate at the hearing in which the [protection] [restraining] [no-contact] order was issued;
(c) The [protection] [restraining] [no-contact] order restrained the defendant from [harassing] [stalking] [or] [threatening] [the person protected under the order] [or] [[the defendant's] [or] [protected person's] child] [or] [engaging in other conduct that would place the protected person in reasonable fear of bodily injury to the [protected person] [or] [child]];
(d) The [protection] [restraining] [no-contact] order included a finding that the defendant represented a credible threat to the physical safety of the [protected person] [or] [child]; and
(e) The [protection] [restraining] [no-contact] order explicitly prohibited the [use] [or] [attempted use] [or] [threatened use] of physical force that would reasonably be expected to cause bodily injury against the [protected person] [or] [child] [or] [included an order requiring the defendant to surrender all firearms and prohibiting the defendant from accessing, obtaining or possessing firearms];
and
(3) That the defendant's [ownership] [or] [possession or control] of the firearm occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction for crimes committed on or after July 28, 2019. For crimes committed prior to July 28, 2019, the phrase “intimate partner” should be substituted for “protected person” and the final bracketed phrase of element (2)(e) should not be used.
Use bracketed material as applicable. With this instruction, use WPIC 2.10 (Firearm—Definition as Element), WPIC 10.02 (Knowledge—Knowingly—Definition). Use WPIC 133.54 (Unlawful Possession of a Firearm—Intimate Partner—Definition) only for offenses committed prior to July 28, 2019.
COMMENT
RCW 9.41.040(2)(a)(iii). This instruction is revised for this edition to remove references to “intimate partner” to be consistent with the statutory definition of the crime effective July 28, 2019, see Laws of 2019, Chapter 245, § 3. For offenses committed prior to July 28, 2019, the phrase “intimate partner” should be used instead of “protected person.”
Qualifying orders and provisions. A conviction under RCW 9.41.040(2)(a)(iii) may be based on some court orders issued pursuant to: RCW Chapter 7.90 (order for the protection of a sexual assault victim), RCW Chapter 7.92 (order for the protection of a stalking victim), RCW Chapter 9A.46 (harassment conviction order), RCW Chapter 10.14 (harassment protection order), RCW Chapter 10.99 (no-contact order), RCW Chapters 26.09, 26.10, 26.26A (restraining order issued in conjunction with a uniform parentage action), and 26.26B (restraining order issued in conjunction with a parentage action), or RCW Chapter 26.50 (domestic violence protection order), as well as an order issued pursuant to RCW 9.41.800.
Courts may issue emergency ex parte orders under RCW Chapters 7.90, 7.92, 9A.46, 10.14, 10.99, 26.09, 26.10, 26.26A, 26.26B, and 26.50. The notice requirement of RCW 9.41.040(2)(a)(iii) excludes all ex parte orders serving as a basis for prosecution. Orders entered after a hearing or following the restrained person's failure to appear for the contested hearing will both satisfy the “opportunity to participate” element. Cf. U.S. v. Calor, 340 F.3d 428 (6th Cir. 2003) (a temporary order issued at a hearing that is adjourned at the request of the respondent may form the basis of a § 922(g)(8) prosecution); U.S. v. Banks, 339 F.3d 267 (5th Cir. 2003) (an uncontested order may form the basis of a § 922(g)(8) prosecution).
Validity of court order. In State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005), the Supreme Court held that the validity of an order is not a question of fact for the jury but rather a question of law for the court when the court determines whether to admit the order as evidence of the crime.
[Current as of March 2020.]
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