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WPIC 133.02.05 Unlawful Possession of a Firearm—Second Degree—Minor—Authority to Own or Possess

11A WAPRAC WPIC 133.02.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 133.02.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part XIII. Miscellaneous Crimes
WPIC CHAPTER 133. Weapon Offenses
WPIC 133.02.05 Unlawful Possession of a Firearm—Second Degree—Minor—Authority to Own or Possess
A person who is under the age of eighteen is authorized to [own] [or] [possess] a firearm when he or she is
[[traveling with an unloaded firearm to or from] [or] [in attendance at] a hunter's safety course or a firearms safety course] [; or]
[[traveling with an unloaded firearm to or from] [or] [engaging in] practice in the use of a firearm or target shooting at an authorized range or other area where the discharge of a firearm is not prohibited] [; or]
[[traveling with an unloaded firearm to or from] [or] [engaging in] organized competition involving the use of a firearm] [or] [participating in or practicing for] [a performance by an organized group that used firearms in a part of the performance]] [; or]
[[traveling with an unloaded firearm to or from] [or] [hunting or trapping under a valid license]] [; or]
[[traveling with an unloaded firearm to or from] [or] [in] [an area where the discharge of a firearm is permitted, is not trespassing, and is
[(a)] [at least fourteen years of age, has been issued a hunter safety certificate, and is using a lawful firearm other than a pistol] [; or]
[(b)] [under the supervision of a parent, guardian or other adult approved for the purpose by the parent or guardian]]
[; or]
[on real property under the control of [his] [her] parent, [other relative, or legal guardian,] and has the permission of the parent [or legal guardian] to possess a firearm] [; or]
[at [his] [her] residence and, with the permission of [his] [her] parent [or legal guardian] possesses a firearm for the purpose of the use of lawful force, as defined elsewhere in these instructions] [; or]
[a member of the [armed forces of the United States] [national guard] [organized reserves] and on duty].
NOTE ON USE
Use this instruction with WPIC 133.02.04 (Unlawful Possession of a Firearm—Second Degree—Minor—Elements) when a specific exception to the statute is claimed.
As applicable, also use WPIC 133.50 (Pistol—Definition) and WPIC 17.02 (Lawful Force—Defense of Self and Others).
Use the bracketed phrases as appropriate.
COMMENT
RCW 9.41.042.
RCW 9.41.040(2)(a)(iv) provides that a person under eighteen is prohibited from owning or possessing a firearm “except as provided in RCW 9.41.042.” The latter provides that “RCW 9.41.040(2)(a) [(iv)] shall not apply” to persons under eighteen who meet one of nine listed criteria.
This instruction is drafted to permit inclusion of these exceptions or exclusions as optional elements in a charge of second degree unlawful possession of a firearm by a minor, because it appears to the WPI Committee that this was the Legislature's intent. The statute does not indicate, however, whether the prosecution or the defense has the burden of proof regarding these “exceptions.” For a discussion of the status of statutory defenses in the courts, see WPIC 14.00 (Defenses—Introduction).
If it is determined that the Legislature intended these provisions to be affirmative defenses, then WPIC 133.02.05 should be given as a separate instruction and the instruction's opening clause should be changed to: “It is a defense to a charge of second degree unlawful possession of a firearm by a minor that the defendant was …” In addition, the following paragraph should be added at the end:
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
Traveling. RCW 9.41.042(6) provides an exception for “traveling with any unloaded firearm in the person's possession to or from any activity described in subsection [(1) through (5)].” This provision has been incorporated as an optional phrase in the instruction's corresponding paragraphs. The term “loaded” is defined in RCW 9.41.010(17), and it may be appropriate to incorporate relevant provisions in a separate instruction.
Lawful force. RCW 9.41.042(8) provides an exception for a minor at his residence who, with the permission of a parent or guardian, possesses “a firearm for the purpose of exercising the rights specified in RCW 9A.16.020(3).” The instruction setting forth the provisions of RCW 9A.16.020(3) is WPIC 17.02 (Lawful Force—Defense of Self and Others). Because “lawful force” rather than “self defense” is used in that instruction, “lawful force” is the phrase used in the instruction above.
[Current as of December 2019.]
End of Document