The Washington Supreme Court recently upheld the application of a state law prohibiting individuals accused of committing “serious crimes” from possessing firearms while free on bond or personal recognizance awaiting trial.  In State v. Jorgenson, the Court concluded that public safety considerations may justify the temporary suspension of an accused individual’s right to possess firearms consistent with both the Washington Constitution, art. I, § 24, and the Second Amendment to the U.S. Constitution. 


While released on bond awaiting trial on a charge of first degree assault with a firearm, Roy Jorgenson was arrested after police discovered multiple firearms in his car during an investigation into a reported shooting.  Jorgenson was then convicted of second degree unlawful possession of a firearm, in violation of RCW 9.41.040(2)(a)(iv), which prohibits individuals accused of a “serious offense” (e.g., crimes of violence) from possessing a firearm while free on bond awaiting trial.  The Court of Appeals, Division II, certified Jorgenson’s constitutional challenges to the possession statute, and the Supreme Court accepted review.


Writing for a five-justice majority, Justice Gonzáels framed Jorgenson’s appeal as involving only an as-applied challenge concerning the scope of Jorgenson’s right to possess firearms under the state and federal constitutions.  After determining, through a Gunwall analysis, that article I, § 24 of the Washington Constitution should be analyzed independent of the Second Amendment, the Court concluded the restriction on firearm possession applied to Jorgenson did not violate the state constitution.  Critical to this conclusion were the the history of gun regulation in the state, the scope of the proscription (possession, not ownership, which was struck down in an earlier case), and the particular facts of Jorgenson’s case. 

In examining the restriction under the Second Amendment, the Court followed the reasoning of a federal district court decision involving a federal statute barring an individual accused of a felony from receiving firearms and applied “intermediate scrutiny,” which requires that the law in question be substantially related to an important governmental purpose.  The firearms restriction survived, the Court explained, because there is an important and legitimate public safety goal in restricting potentially dangerous persons’ access to firearms, the statute applies only to individuals accused of serious crimes, and Jorgenson was charged with a serious crime involving a firearm.

In dissent, Justice Wiggins argued that the Court should have analyzed whether the statutory scheme violates procedural due process instead of limiting its analysis to Jorgenson’s as-applied challenge.  Despite Jorgenson’s failure to “directly discuss” it in his briefing, the dissent argued that it was incumbent on the Court to address the question because the categorical firearms restriction was “such a patently clear violation of procedural due process as to put a cloud of constitutional doubt over the statute.”  The restriction, the dissent urged, could not be upheld because it denied Jorgenson of a fundamental liberty interest without notice and opportunity to be heard or an individualized determination that he posed a danger that warranted application of the restriction.

Justice James Johnson concurred in the dissent authored by Justice Wiggins and wrote separately to explain his view that strict scrutiny is the appropriate test because the proscription interferes with a fundamental right.  Justice Johnson stopped short of explaining whether the statute, as applied to Jorgenson, would survive strict scrutiny.


Although this decision involves controversial legal, political, and social issues, it appears unlikely to attract the attention of the U.S. Supreme Court if a cert petition is filed.  The majority opinion avoided making any sweeping statements about federal constitutional rights and was careful to limit its holding to the unique facts of this case.  That the procedural due process question appears not to have been raised also lessens the likelihood that the Supreme Court would elect to add this case to its docket.

From a practitioner’s perspective, this case illustrates the importance and effect of identifying and framing issues on appeal.  Had facial challenge based on a due process argument been mounted, the outcome might very well have been different.