Barr v. Snohomish County Sheriff

FniE\
IN CLERKS OFFICE X
This opinion was
filed for record
at o'im.on JVLAin^ 3^/Id. at 61.
Barr petitioned the Thurston County Superior Court for a writ of mandamus
requiring the Sheriff to issue the CPL. The writ was denied, and Barr sought
review in the Court of Appeals. In a published decision. Division Two reversed
and remanded with an order to issue the writ. Barr v. Snohomish County Sheriff, 4
Wash. App. 2d 85, 89, 419 P.3d 867(2018). The Sheriff petitioned for review in this
court, which we granted. Barr v. Snohomish County Sheriff 191 Wash. 2d 1019
(2018). We also asked the parties to address in their supplemental briefs "whether
a juvenile conviction which has been sealed is still a 'conviction' for purposes of
the state and federal firearm statutes." Letter from Susan L. Carlson, Supreme Ct.
Clerk, Wash., to the parties(Nov. 5, 2018), Barr v. Snohomish County Sheriff No.
96072-1.
Barr v. Snohomish County Sheriff, No. 96072-1
Issues
A. Does the Sheriff have a mandatory duty to issue Barr a CPL?
B. Is Barr entitled to attorney fees and costs on review?
Analysis
RCW 9.41.0975(2)(a) allows an applicant to petition for a writ of mandamus
directing an issuing agency to issue a CPL "wrongfully refused." A CPL is
wrongfully refused if the issuing agency has a mandatory duty to issue one and
refuses to do so. See RCW 7.16.160 (writ issued to "compel the performance of an
act which the law especially enjoins as a duty resulting from an office"). We
therefore must decide whether RCW 9.41.070 imposes a mandatory duty on the
Sheriff to issue Barr a CPL. "The determination of whether a statute specifies a
duty that the person must perform is a question of law." River Park Square, LLC
V. Miggins, 143 Wash. 2d 68, 76, 17 P.3d 1178 (2001). We review questions of law
de novo. Cost Mgmt. Servs., Inc. v. City ofLakewood, 178 Wash. 2d 635, 641, 310
P.3d804(2013).
A. The Sheriff did not wrongfully refuse to issue Barr a CPL
To determine whether the Sheriff had a mandatory duty to issue a CPL to
Barr, we look to the plain language ofthe CPL statute. RCW 9.41.070(l)(a)
provides in relevant part that "the sheriff of a county shall within thirty days after
the filing of an application of any person, issue a license to such person to carry a
Ban V. Snohomish County Sheriff, No. 96072-1
pistol concealed on his or her person," unless the applicant "is prohibited from
possessing a firearm under federal law." The issuing authority is required to
perform a criminal history background check and "shall deny a permit to anyone
who is found to be prohibited from possessing a firearm under federal or state
law." RCW9.41.070(2)(b).
Federal law provides that if a person "has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year," then it is
unlawful for that person to "possess in or affecting commerce, any firearm or
ammunition."^ 18 U.S.C. § 922(g). "What constitutes a conviction of such a crime
shall be determined in accordance with the law of the jurisdiction in which the
proceedings were held." 18 U.S.C. § 921(a)(20). In addition, "[a]ny conviction
which has been expunged, or set aside or for which a person has been pardoned or
has had civil rights restored shall not be considered a conviction." Id.
Our inquiry is thus straightforward. First, we ask whether Barr has been
convicted of a crime punishable by over one year of imprisonment pursuant to
Washington law. Van Der Hule v. Holder, 759 F.3d 1043, 1046 (9th Cir. 2014)
(quoting United States v. Valeria, 441 F.3d 837, 840 (9th Cir. 2006)). As detailed
^ "A person who is prohibited from possessing, shipping, transporting, or receiving
firearms or ammunition may make application to the Attorney General for relief from the
disabilities imposed by Federal laws." 18 U.S.C. § 925(c). There is no indication that Barr has
made such an application.
Barr v. Snohomish County Sheriff, No. 96072-1
below, we conclude that he has. We then ask whether any of the specified
subsequent events (expungement, setting aside, pardon, or restoration of civil
rights) have occurred. Id. Again as detailed below, we conclude they have not.^
Therefore, the Sheriff correctly determined that Barr is prohibited from possessing
firearms pursuant to federal law. As a result, the Sheriff is not required to issue
Barr a CPL.
1. Barr's sealed juvenile adjudications are convictions
The parties do not dispute that Barr's juvenile adjudications qualified as
"convictions" before they were sealed.'^ We agree with the parties on this point.
Our state firearms statute provides that "a person has been 'convicted', whether in
an adult court or adjudicated in ajuvenile court, at such time as a plea of guilty
has been accepted, or a verdict of guilty has been filed." ROW 9.41.040(3)
(emphasis added). The legislature has thus made it clear that in the context of
firearm possession, an unsealed juvenile adjudication carries the same
consequences as an adult conviction. See In re Del ofAnderson, 185 Wash. 2d 79,
86, 368 P.3d 162(2016)("when considering whether a statutory reference to
^ If any such subsequent event had occurred, we would need to engage in a third step and
ask whether the pardon, expungement, or restoration of civil rights expressly prohibits firearm
possession. Van Der Hule, 759 F.3d at 1046.
It is also undisputed that the offenses at issue here were punishable by imprisonment
over one year pursuant to Washington State law. See former RCW 13.40.0357 (1992).
Barr v. Snohomish County Sheriff, No. 96072-1
convictions includes juvenile adjudications," courts must "consider the particular
statutory context and purposes to determine what the legislature intended").
The parties' disagreement focuses on what happens to disqualifying juvenile
adjudications after they are statutorily sealed. Barr argues that once the records of
his juvenile adjudications were sealed, they were no longer "convictions" because
the record sealing statute provides that once the records are sealed,"the
proceedings in the case shall be treated as if they never occurred." RCW
13.50.260(6)(a). BarrTeasons that if the proceedings are treated as if they never
occurred, the result—a conviction—must also be treated as if it never occurred.
Therefore, a sealed juvenile adjudication is no longer a "conviction."
The problem with this argument is that it sidesteps the required federal
statutory analysis. Under that analysis, the question is not how a conviction is
currently treated by state law. Instead the question is whether there was a
conviction and, if so, whether a subsequent event has occurred such that the
conviction is no longer "considered a conviction" that prohibits firearm possession
pursuant to the federal statute. 18 U.S.C. § 921(a)(20). Thus, our inquiry at the
first step is limited to asking whether there was, in fact, a conviction of a crime
punishable by over one year of imprisonment as a matter of state law. Siperek v.
United States, 270 F. Supp. 3d 1242, 1248(W.D. Wash. 2017).
Barr v. Snohomish County Sheriff, No. 96072-1
Washington State law clearly provides that Barr's juvenile class A felonies
are convictions punishable by over one year imprisonment. While the sealing
order makes those convictions invisible to most people, they do still exist. Id. at
1248-49. This conclusion is evident from the simple fact that the sealing order will
be nullified by "[a]ny charging of an adult felony subsequent to the sealing."
RCW 13.50.260(8)(b). If that happens, the convictions do not somehow come
back into existence; they merely come back into public view.
Moreover, it is evident that the Sheriff was required to consider Barr's
juvenile class A adjudications when deciding whether to issue him a CPL. The
Sheriff was required by statute to check "the Washington state patrol electronic
database," RCW 9.41.070(2)(a), and the state patrol database must "provide[]
criminal justice agencies access to sealed juvenile records information," RCW
13.50.260(8)(d). If the legislature requires law enforcement to search a database
that must contain information on sealed convictions, then the legislature must have
intended that law enforcement use information about the sealed convictions in
determining whether to issue a CPL.
Barr's juvenile adjudications are clearly convictions that do still exist as a
matter of state law, the sealing order notwithstanding. We must therefore ask
whether Barr has obtained expungement, setting aside, pardon, or restoration of
civil rights in relation to those convictions.
Barr v. Snohomish County Sheriff, No. 96072-1
2. None of the subsequent events specified by 18 U.S.C. § 921(a)(20)
have occurred
As a matter of federal law,"[a]ny conviction which has been expunged, or
set aside or for which a person has been pardoned or has had civil rights restored
shall not be considered a conviction for purposes ofthis chapter." 18 U.S.C.
§ 921(a)(20). A sealing order is not equivalent to an expungement, and Barr does
not argue that his class A felonies have been set aside or pardoned, or that he has
had his civil rights restored in relation to those convictions.^ Therefore, they
remain disqualifying predicate convictions for purposes of 18 U.S.C. § 922(g).
Barr relies heavily on In re Firearm Rights ofNelson, 120 Wash. App. 470, 85
P.3d 912(2003), and at first glance, the underlying facts of Nelson appear similar
to this case. In 1992, Nelson pleaded guilty as a juvenile to unspecified serious
offenses that would have prohibited him from possessing a firearm. Id. at 472-73.
In 2000, he applied for and received an order "sealing and expunging" his juvenile
convictions. Id. at 473. Based on this order. Nelson held "that RCW 9.41.040
does not make it unlawful for Nelson to carry a firearm so long as he has no
^ As noted above, Barr did obtain an order in relation to his class A felonies declaring that
"[s]o long as this case remains sealed, the offenses ... do not prohibit respondent from
possessing firearms under RCW 9.41.040." CP at 46-47. However, this order does not restore
his civil rights for purposes of 18 U.S.C. § 921(a)(20) because "the civil rights relevant under
[that] provision are the rights to vote, hold office, and serve on a jury." Logan v. United States,
552 U.S. 23, 28, 128 S. Ct. 475, 169 L. Ed. 2d 432(2007). Barr's order purports only to allow
him to possess a firearm on a conditional basis as a matter of state law.
Ban V, Snohomish County Sheriff, No. 96072-1
convictions other than those expunged." Id. at 481. However, Barr's reliance on
Nelson is misplaced for two reasons.
First, the issue in Nelson was whether, as a matter of state law,"carrying a
firearm is unlawful for a person who committed serious offenses as a juvenile, but
has since obtained a court order expunging the record of those offenses." Id. at
472. Here, we do not need to decide whether state law prohibits Barr from
possessing or carrying a firearm, and we expressly decline to do so. The only issue
in this case is whether the Sheriff is required to issue Barr a CPL. The Sheriff
declined to issue Barr a CPL after determining that federal law prohibited Barr
from possessing firearms. Therefore we can and do decide this case based solely
on the federal firearms statutes.
Second, Nelson explicitly states that the juvenile records at issue there were
expunged, while Barr's were merely sealed. Some courts have read Nelson to
mean that "the sealing of a juvenile case constitutes expungement of the juvenile
offense," but that is not the case. Siperek, 270 F. Supp. 3d at 1249. As detailed
above, sealing merely hides a record from the view of the general public. Nelson,
meanwhile,"had a full expungement, and the records have been destroyed."
Nelson, 120 Wash. App. at 474. Therefore,"there [were] no longer official records
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Barr v. Snohomish County Sheriff, No. 96072-1
of any such [disqualifying] offense." Id. at 480. That is clearly not the case here,
so Nelson does not apply.^
For purposes of the federal firearms statutes, Barr's juvenile class A felonies
are convictions punishable by over one year of imprisonment as a matter of state
law. They remain convictions even though they have been sealed because they
unquestionably still exist and the Sheriff was required to access them through the
Washington State Patrol electronic database to determine whether to issue Barr a
CPL. Barr's convictions have not been expunged or set aside, and Barr has not
received a pardon or restoration of civil rights for these convictions. The Sheriff
therefore correctly determined that it was not required to issue Barr a CPL and
Barr is not entitled to a writ of mandamus.
B. Ban" is not entitled to attorney fees or costs on review
Barr requests attorney fees on review pursuant to RAP 18.1(a) and RCW
9.41.0975(2), which provides that an individual who successfully petitions for a
writ of mandamus to obtain a CPL is entitled to reasonable attorney fees and costs.
Because we hold Barr is not entitled to a writ of mandamus, he is not entitled to
attorney fees or costs on review.
^ The parties disagree on whether Nelson was qualified to have his records expunged
pursuant to the sealing and expungement statutes in place at the time. We need not decide that
question. It is clear from the opinion that properly or not, Nelson's records were in fact
expunged and destroyed.
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Barr v. Snohomish County Sheriff, No. 96072-1
Conclusion
This case presents a narrow question to which we provide a narrow answer.
The Sheriff was not required to issue Barr a GPL because, the sealing order
notwithstanding, Barr's class A felony adjudications are predicate, disqualifying
convictions for purposes of 18 U.S.C. § 922(g). We express no opinion on Barr's
right to possess firearms as a matter of state law. We therefore reverse the Court of
Appeals and hold that the trial court correctly denied Barr's petition for a writ of
mandamus.
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Barr v. Snohomish County Sheriff, No. 96072-1
WE CONCUR:
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