WPIC 2.10 Firearm—Definition as Element

Use this instruction with to-convict instructions that use the term firearm and that are based on statutes that refer to firearm as defined in RCW 9.41.010. Examples of such to-convict instructions are: WPIC 30.03 (Aggravated First Degree Murder—Aggravating Factors); WPIC 35.30 (Drive-By Shooting—Definition); WPIC 70.12 (Theft of a Firearm—Definition); WPIC 70.13 (Theft of a Firearm—Elements); WPIC 77.12 (Possessing a Stolen Firearm—Definition); WPIC 77.13 (Possessing a Stolen Firearm—Elements); WPIC 133.01 (Unlawful Possession of a Firearm—First Degree—Definition); WPIC 133.02 (Unlawful Possession of a Firearm—First Degree—Elements); WPIC 133.02.01 (Unlawful Possession of a Firearm—Second Degree—Definition); WPIC 133.02.02 (Unlawful Possession of a Firearm—Second Degree—Previous Felony Conviction—Elements); WPIC 133.02.03 (Unlawful Possession of a Firearm—Second Degree—Previous Domestic Violence Conviction—Elements); WPIC 133.20 (Aiming or Discharging a Firearm—Definition); WPIC 133.21 (Aiming a Firearm—Elements); WPIC 133.22 (Discharging a Firearm—Elements); and WPIC 133.50 (Pistol—Definition).

For a discussion of the relationship of this instruction to other instructions defining “firearm” and “deadly weapon” see the Note on Use and Comment to WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive).

The instruction may need to be modified for cases involving the operability of a firearm. See discussion in the Comment.

This definition appears in RCW 9.41.010(11). It applies to weapons offenses under RCW Chapter 9.41, to firearm enhancements under RCW 9.94A.533(3), to the crime of theft of a firearm under RCW 9A.56.300, and to the crime of possessing a stolen firearm under RCW 9A.56.310.

A temporarily disabled or malfunctioning gun may still meet this statutory definition of firearm. State v. Padilla, 95 Wn.App. 531, 533, 978 P.2d 1113 (1999) (statutory element of unlawful possession of a firearm in the second degree); see also State v. Anderson, 94 Wn.App. 151, 158–63, 971 P.2d 585 (1999), reversed on other grounds, 141 Wn.2d 357, 5 P.3d 1247 (2000). The Padilla court held that a “disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a firearm within the meaning of RCW 9.41.010(1).” State v. Padilla, 95 Wn.App. at 535. Under Padilla and Anderson, temporarily disabled guns may qualify as “firearms” under the statute, but “gun-like objects” and permanently disabled guns do not. State v. Padilla, 95 Wn.App. at 535; State v. Anderson, 94 Wn.App. at 162.

RCW 9A.04.110(6), which defines “deadly weapon” for other purposes, also uses the term “firearm.” In that context, the term has no statutory definition. It is not clear whether the same definition would apply. See State v. Edwards, 17 Wn.App. 355, 563 P.2d 212 (1977) (under former deadly weapon and firearm enhancement statutes, dictionary definition acceptable in absence of statutory definition of firearm).

See also the Comment to WPIC 2.10.01 (Firearm—Definition for Sentence Enhancement—Special Verdict) regarding the firearms enhancement statute.