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Thread: sentencing guidelines question

  1. #1
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    My friend and no it wasn’t me was ticketed for discharge of a fire arm in Port Angeles. I’ve looked on the internet and couldn’t find what the sentencing guidelines are. I know it’s a misdemeanor and wanted to know if it was just a fine or county jail time. He has no criminal record and doesn’t carry that gun anymore due to it firing when he bumped a counter and the firing pin engaged.(hammerless gun). All the police reports state that it was an accidental discharge (and there records showed this model had a history for that.) but due to it happening in a subway they had to charge him with something.



    And the bullet ended up in his leg there was no damages to the place or anyone ells, only a 22 round.





    Well any help would be appreciated. Thanks and try not to dog him to much but I understand due to what happened there will be some.

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    Regular Member sempercarry's Avatar
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    was this a phoenix hp-22?

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    WTF happened to intent?


    Ala Mens Rhea?
    Evangelical lessons are provided upon request. Anyone wishing to meet Jesus can just kick in my door.

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    Regular Member Gene Beasley's Avatar
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    If this took place in Port Angeles, rather than the PA area of Clallam County then he would probably have been charged under PAMC 9.41.020:

    9.42.010 Discharging Firearms. It shall be unlawful for any person to fire or discharge any gun pistol or firearm of any type within the City of Port Angeles provided that this Section shall not apply to peace officers engaged in the lawful performance of their duties or persons discharging starting guns at athletic events or to persons target shooting at a duly licensed shooting gallery in a carnival, circus, fair, parade or unless otherwise allowed by ordinances of City or State or specifically authorized in writing by the Chief of Police. Discharging firearms shall be a Class II misdemeanor.
    (Ord. 2447 § 1, 6/16/1987)
    A Class II misdemeanor is a city defined classification. Charges under the RCW's would either be a misdemeanor or a gross misdemeanor.
    9.01.070 Classes of Crimes. An offense defined by this Title constitutes a misdemeanor of the first class or a misdemeanor of the second class. A Class I misdemeanor may be punished by either fine or imprisonment, or both, up to the maximum sentence allowed under the jurisdiction of the court in which the charge is filed. A Class II misdemeanor may be punished by a maximum fine of one thousand dollars. A sentence of imprisonment shall not be imposed for any Class II misdemeanor. (Ord. 2442, 5/11/987; Ord. 2220 § 1, 6/29/1982; Ord. 2213 § 1 5/4/1982; Ord. 2129, 4/11/981)
    So, it looks like the most he'll be on the hook for would be a fine and maybe court costs.

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    thanks gene that was exactly what I was searching for. I will tell him I think he will be relieved to know its only going to cost money and not his job for being put in jail and missing work.

    I'll find out what he was carrying to sempercarry

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    If an act is committed by accident, then it lacks Mens Rea, and there should be no criminal culpability. Even homicide has an exception for "by accident."

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    I would say if the firearm went off without his interaction (bumped a table?) then there is no crime. He should have a good lawyer and fight the charge.

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    sirpuma wrote:
    I would say if the firearm went off without his interaction (bumped a table?) then there is no crime. He should have a good lawyer and fight the charge.
    And a check by a good gunsmith

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    I would look over this. Haven't read the whole thing yet, but it is arguing that accident counts for assault 1 (assault with firearm et al) even though the statutes only specify that it is a defense for homicide. Appellate courts have upheld this.
    There is also the theme of "lesser included offenses," and discharge of a firearms seems to be a lesser included offense in homicide.
    I'll see what else I can find.
    I'd advise your friend to plead not guilty if it's not too late.

    http://www.courts.wa.gov/content/Bri...0appellent.pdf

    I'll see what else I can find.

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    While I'm at it, recall the the Fishorman case won because Ellensburg didn't have a clause about CPL holders (I think) or some unrelated thing like that that made it incompatible with RCWs 9.41.290/300. These specify that ordinances against discharging a firearm may not preclude self-defense, and Port Angeles' statute doesn't have a clause permitting self-defense, so therefore is incompatible with RCWs 9.41.290/300.

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    cynicist wrote:
    If an act is committed by accident, then it lacks Mens Rea, and there should be no criminal culpability. Even homicide has an exception for "by accident."
    Your legal acumen is slightly off. SOME crimes have an intent element, some don't.

    The crime stated is classified as a strict liability crime. Did you do it? Is there a legal defense (self-defense, necessity, etc.)? If yes to the first and no to the second you are guilty regardless of what you intended. "I did it on accident" is not a defense to a strict liability crime.

    If the crime said "intentionally fired a weapon..." then intent would be important and an accident would not be held against you. But here that is not the case.

    -adamsesq

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    cynicist wrote:
    While I'm at it, recall the the Fishorman case won because Ellensburg didn't have a clause about CPL holders (I think) or some unrelated thing like that that made it incompatible with RCWs 9.41.290/300. These specify that ordinances against discharging a firearm may not preclude self-defense, and Port Angeles' statute doesn't have a clause permitting self-defense, so therefore is incompatible with RCWs 9.41.290/300.
    .300 specifically authorizes them to create ordinances that restrict the discharge where there is a reasonable likelihood that humans, animals, or property will be jeapordized.

    This is why it does not have to be inline with the RCW's.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    .300 specifically authorizes them to create ordinances that restrict the discharge where there is a reasonable likelihood that humans, animals, or property will be jeapordized. This is why it does not have to be inline with the RCW's.
    I think that's off on two points. One is that it says nothing about danger to others, and two it doesn't have an exception for self-defense.
    If it "doesn't have to be" in line with the RCW (which is not possible,) then it falls within pre-emption.

    I haven't found it yet, but I'm sure there is case law regarding accident as a defense to unlawful discharge. I did find that drive-by shooting and reckless endangerment have accident exceptions, and unlawful discharge is a "lesser included offense" to reckless endangerment, the only difference is how likely you are to hit someone.

    If it is a liability offense, the irony is that if the bullet had killed someone, he would be not-guilty, but since it didn't, it's a misdemeanor.

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    ... due to it happening in a subway they had to charge him with something.
    Huh???



    ETA: by "Huh" I mean, "so there's something special in the PA municipal code that singles out Subway for special treatment?"

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    cynicist wrote:
    .300 specifically authorizes them to create ordinances that restrict the discharge where there is a reasonable likelihood that humans, animals, or property will be jeapordized. This is why it does not have to be inline with the RCW's.
    I think that's off on two points. One is that it says nothing about danger to others, and two it doesn't have an exception for self-defense.
    If it "doesn't have to be" in line with the RCW (which is not possible,) then it falls within pre-emption.
    There is an exemption for self defense in it and because the code is authorized explicitly by .300 it does not have to be in line with any RCW to be a valid ordinance. PA only needs to believe that there is a likelihood that humans, animals, or property will be jeopardized and they do not have to spell it out in their code.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    adamsesq wrote:
    cynicist wrote:
    If an act is committed by accident, then it lacks Mens Rea, and there should be no criminal culpability. Even homicide has an exception for "by accident."
    Your legal acumen is slightly off. SOME crimes have an intent element, some don't.

    The crime stated is classified as a strict liability crime. Did you do it? Is there a legal defense (self-defense, necessity, etc.)? If yes to the first and no to the second you are guilty regardless of what you intended. "I did it on accident" is not a defense to a strict liability crime.

    If the crime said "intentionally fired a weapon..." then intent would be important and an accident would not be held against you. But here that is not the case.

    -adamsesq
    Some laws that do not specify a mens rea are classified as strict liability. Others, however, have had a knowingly elemnet written into them by the courts, under a due process argument.

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    _____________update________________

    friend is getting a lawyer

    He went to court today and the deffence eterney was reading her statment, she was laughing and giggleing when she was reading the chardges like it was a big joke and was saying he had intent of fireing the firearm in city limmits. Whenmy friendasked the judge what the intent was he replied the intent was you were carrying a fire arm in city limits and it firedwithin city limits.

    next date is on the 6th of may


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    So they believe he intended to shoot himself in the leg?

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    Granum wrote:
    _____________update________________

    friend is getting a lawyer

    He went to court today and the defense attorney was reading her statement, she was laughing and giggling when she was reading the charges like it was a big joke and was saying he had intent of firing the firearm in city limits. Whenmy friendasked the judge what the intent was he replied the intent was you were carrying a fire arm in city limits and it firedwithin city limits.

    next date is on the 6th of may
    That's pretty F'd because he "was carrying" a pistol that means the "he planned on shooting". By that judges logic all of us who carry in public discharge our weapons at least once. I think there's a difference between intent to use something and being prepared to use something. I have a vacuum not because I intend to make messes but because if I make a mess I'll be able to clean it up. She goes from Intent to carry to intent to fire that's really stretching it.

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    TechnoWeenie wrote:
    WTF happened to intent?


    Ala Mens Rhea?
    "intent' isn't the only "Mens Rea" that we have.

    First off, the RCW has multiple crimes in which there is no Mens Rea. Possession of a controlled substance, for example, is a crime where there doesn't have to be an intent.

    Second, Mens Rea refers to the latin phrase stating the body is not guilty of an act if the mind is not guilty. We have multiple crimes in which that is not true. Manslaughter, for example, is a crime where you don't mean to kill someone, but someone dies due to an act you caused. You don't have to prove intent to arrest on manslaughter. Negligent driving is another example. Hell, the wording implies that the person didn't intend to drive that way, they were negligent wether intentionally or unintentionally, it doesn't matter. Well, it kind of does. If you can prove the person was intentionally negligent, then it becomes reckless driving.

    Third, our RCW outlines that crimes can be committed without intent. RCW 9A.08.010 specifically spells out our mental states. We've got 4, Intent, Knowledge, Recklessness, and Criminal Negligence. There doesn't have to be a Mens Rea for every crime, because our RCW was designed to address the fact that not every person who screws up, intends to.

    Fourth, you ask where's the intent. I have addressed the flaw with that argument above, but let's actually look at how mental states are assessed. Generally, in the RCW, if a crime is to be punished due to the Mens Rea, it will state that in the RCW. For example, RCW 9A.32.050, Murder in the second dgree states:
    (1) A person is guilty of murder in the second degree when:

    (a) With intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person; or
    There are other ways to commit Murder 2, but most of them lack the same kind of Mens Rea specifically stated in section A. You see that section A specifically states "with intent," meaning this particular crime has to have a Mens Rea to be sustained.

    Fifth, the Port Angeles Code states:
    942010 DischargingFirearms It shall be unlawful for any person to fire or discharge any
    gun pistol or firearm of any type within the City of Port Angeles provided that this Section shall not
    apply to peace officers engaged in the lawful performance of their duties or persons discharging
    starting guns at athletic events or to persons target shooting at a duly licensed shooting gallery in a
    carnival circus fair parade or unless otherwise allowed by ordinances of City or State or specifically
    authorized in writing by the Chief of Police Discharging firearms shall be a Class II misdemeanor
    You will notice that nowhere in there does it state you have to intend to discharge a firearm. The mere act of discharging a firearm within the city is enough to be arrested. The mental state can be argued at court and MAY get him off, but frankly...shooting yourself in the leg is pretty negligent. I'd say that satisfies the culpability test.

    Finally, if you search online you will find that the courts have consistently ruled that the lack of intent does not fail the culpability test.

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    Seriously? Tell your friend to get a lawyer. I'd much rather pay a lawyer twice as much money than pay a frivolous fine. Plus it will always be on his record.

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    The mental state can be argued at court and MAY get him off, but frankly...shooting yourself in the leg is pretty negligent. I'd say that satisfies the culpability test.
    I would argue that it was an inchoate crime for homicide, and was an accident. The bullet could have killed him or others, and in that case would have not been a crime.

    The New Hampshire Supreme Court has reversed convictions for attempted murder in one case, and second degree assault in another finding REPLY BRIEF OF APPELLANT-9 that the court committed error by failing to give a defense instruction on the defense of accident even though it is not contained as a defense in the criminal code. State v. Gamarsh, 126 N.H. 228,489 A. 2d 157 (1985), State v. Aubert, 120 N.H. 634,42 1 H. 2d 124 (1 980), both cases involved accidental shootings.
    FYI, precendent from other states is valid in WA.

    From the same source (the PDF I linked to earlier in this thread)
    Washington courts have recognized defenses not enumerated in RCW 9A16.
    Anything in the Common Law about defense of accident?




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    cynicist wrote:
    The mental state can be argued at court and MAY get him off, but frankly...shooting yourself in the leg is pretty negligent. I'd say that satisfies the culpability test.
    I would argue that it was an inchoate crime for homicide, and was an accident.* The bullet could have killed him or others, and in that case would have not been a crime.*
    Wow...this is wrong on so many levels...

    The defendant in this case was not charged with attempted murder or reckless endangerment. Had he been charged with that, we'd be arguing a different case. You can't go to court and argue that he didn't commit a crime he wasn't charged with, and expect that to be a defense for what he was charged for.

    If you did that, you'd be fired as my lawyer so fast...

    What you are arguing is "Yes, he did shoot the gun in the city, but he was actually about to kill someone accidently, so since he didn't mean to do that, he's innocent of all crimes." That's not how our RCW is set up. Further, this is a logical fallacy.

    Because the defendant in this case was not charged with a crime that specifies "intent" as the test for culpability, any of the other tests are in play. Which goes back to "Negligence" being a mental state for culpability.

    The New Hampshire Supreme Court has reversed convictions for attempted murder in one case, and second degree assault in another finding REPLY BRIEF OF APPELLANT-9 that the court committed error by failing to give a defense instruction on the defense of accident even though it is not contained as a defense in the criminal code. State v. Gamarsh, 126 N.H. 228,489 A. 2d 157 (1985), State v. Aubert, 120 N.H. 634,42 1 H. 2d 124 (1 980), both cases involved accidental shootings.
    FYI, precendent from other states is valid in WA.[/quote][/quote]

    Negative. Precedence from other states is only valid when the courts take it into consideration into establishing precedence for WA. There have been multiple times when WA has gone against other states.

    Almost every other state in the Union allows a "pretext" stop, but WA does not. I can't think of any other state that doesn't allow it. Hell, the US Supreme court has said that pretext stops are valid, but WA doesn't allow it. This is just one example of WA going against other states precedence. We have our own Supreme Court to establish our own precedence.

    From the same source (the PDF I linked to earlier in this thread)
    Washington courts have recognized defenses not enumerated in RCW 9A16.
    Anything in the Common Law about defense of accident?*


    Absolutely. Case law in WA has stated that an accident is a valid defense when the crime specifies intent. Here's one example:
    http://www.courts.wa.gov/content/Bri...0appellent.pdf

    You keep arguing tossing out more serious crimes as if it matters. The more serious crimes, Homicide, Manslaughter...they all have specific culpability's necessary to convict. As I demonstrated above, there are other crimes that do not require "intent" or "recklessness" to be the culpability.

    None of that matters, because there is no "intent" portion of the Port Angeles law of which the defendant was charged. So since there is no "intent" written in this law, Washington case law states has established that there is no burden of proof to establish mental state.

    The PA law specifically states what the defenses to discharging a firearm in the city of PA are.

    Oh, and FYI...you can be charged with murder, sans Mens Rea. If you are committing a felony, and accidently kill someone during the commission of that felony, you will be charged (and convicted) of Murder 2 or 1, depending on the felony you are committing. No mental state is required for that.
    My advice to the OP is to listen to the advice that makes logical sense, not emotional, and then hire an attorney. Or just have your friend pay the fine and accept the misdemeanor conviction.

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    BigDaddy5 wrote:
    God I love the writings and humor of Roberts.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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