State v. Maciolek, construing RCW 9.41.270

In Maciolek, several people were convicted under RCW 9.41.270, and they challenged the statute as being unconstitutionally vague. The Washington Supreme Court held that the statute was not vague, because "Clearly, the average person would know what conduct is proscribed by the two enactments: using a weapon to threaten another."

101 Wn.2d 259, 676 P.2d 996 (Wash. 1984)

What could be done?

Interesting reading: http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Spencer.pdf

Can this be challenged? - I read the document and personally think most of this is crap. I one is to take individual aspects of the case, and analyze them, none by them selves should be illegal, except for the singular fact that he seemed to have had the weapon "in an assaultive manner". I would hope that means "At the ready", as if immediately ready to fire... That being the case, then that should have been the ONLY aspect of the charge...

~ Correct me if i am wrong, but openly carrying a Slung/Holstered firearm would not be illegal, carrying in a residential area (even a bad one) would not be illegal, carrying at night or with a magazine attached would not be illegal, Walking your dog, or walking briskly is not illegal eaither.... But somehow the combination may be illegal ?

- That being said, one has to be careful of what sort of random environmental conditions or combinations may be construed as "warranting alarm" ??? -- Thats insane. The statute really is vague, regardless of what the court says, if you ask 10 random non gun owners, i bet you get 10 different answers.

- So what could be done to change or challenge the wording, or demand the state better define it's definitions in an effort to narrow and clarify the statute? It is a poorly written RCW at best.

Just my thoughts.

Bat

Is it possible that with recent US Supreme Court rulings that this statute might be viewed differently?. That is assuming there are new standards by which it could be scrutinized?

I find it interesting that the State Court found it not to be overly broad when the statute contains so many different "conditions". Does only one have to be present or do all of them? Is there a difference between "warrants" and "causes". Try and get agreement on that one.

amlevin said:

Is it possible that with recent US Supreme Court rulings that this statute might be viewed differently?

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Yes. It should also be viewed differently in light of State v. Sieyes.

Reasonable Person Theory

What is a reasonable person? In the event I am ever judged by my peers I can only hope they are like minded. The difficulty is the fact I do not get to choose my peers.

For the sake of argument I will presume the people on this forum are like minded. While I do not agree with all of the findings I can understand how a "Reasonable Person" might find cause to be "alarmed" to see this man under the conditions described. I only point this out because I frequently walk my dog after I get home from work while it is dark outside. I have a fairly long gait and move faster than the average bear. Since it has been rainy lately I carry a big flashlight and wear a bright yellow rain jacket that covers my sidearm. If I walk my dog under the same conditions with out the rain jacket would I cause or warrant alarm?

The court found in this instance the rifle did warrant alarm while the covered side arm did not. (duh it was covered) While I was not there I must presume that the fine upstanding citizens who saw this man were concerned by what they witnessed. My question is why? What happened in this event is not completely clear to me. I would submit that the conditions witnessed were not the "norm" and the basis for concern.

1. What is an "assaultive manner" ? (What would a reasonable person consider assaultive?)

2. If I walk too fast with a visible sidearm do I warrant alarm? (What if I have a drop rig or tactical holster?) I am positive I would cause some people to be alarmed but does my scenario "warrant" alarm.

3. Apples and Oranges because my scenario is a sidearm and this case involved a rifle.

4. With regard to regulation of firearms. Would this scenario be different if perhaps it was a shotgun as opposed to a rifle? My shotgun holds five rounds but if I am hunting it only holds three rounds. Can this regulation on number of rounds constitute regulation of my right to defend my self?

This is not meant to incite or illicit reaction; rather it is meant as logical rational debate from reasonable persons.

~Whitney

Whitney said:

In the event I am ever judged by my peers I can only hope they are like minded.

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That doesn't always work in ones favor. Just ask Josh how that worked out for him in his trial in Vancouver. The Jury, by conservatives estimates was overwhelmingly pro gun (at least they were gun owners). Still, he was convicted.

As for choosing your peers, you do have the right to challenge those that might be prejudiced during Jury Selection.

olypendrew said:

In Maciolek, several people were convicted under RCW 9.41.270, and they challenged the statute as being unconstitutionally vague. The Washington Supreme Court held that the statute was not vague, because "Clearly, the average person would know what conduct is proscribed by the two enactments: using a weapon to threaten another."

101 Wn.2d 259, 676 P.2d 996 (Wash. 1984)

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It might help if you described specifically the conduct of the accused.

olypendrew said:

In Maciolek, several people were convicted under RCW 9.41.270, and they challenged the statute as being unconstitutionally vague. The Washington Supreme Court held that the statute was not vague, because "Clearly, the average person would know what conduct is proscribed by the two enactments: using a weapon to threaten another."

101 Wn.2d 259, 676 P.2d 996 (Wash. 1984)

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http://www.mrsc.org/mc/courts/supreme/101wn2d/101wn2d0259.htm

State v. Maciolek

Petitioner, who had injured his hand, requested a prescription for Percodan from his physician. The doctor had previously determined that the petitioner was abusing prescription Percodan and refused to renew the prescription. Thereupon, the petitioner became very angry and deliberately pulled back his jacket to reveal a handgun which was carried within an inside pocket of the jacket. The doctor, alarmed and intimidated by this display, immediately wrote out a prescription for Percodan. Based upon these facts, the petitioner was found guilty of violating RCW 9.41.270 in Roxbury District Court but the court commissioner set aside the conviction and dismissed the charges after finding the statute unconstitutionally vague. The State appealed this ruling and the Superior Court reversed, finding the statute was neither vague on its face or as applied.

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What do you want to happen here Drew? A discussion that this does apply in some situations and not in others?

In the one you cite Maciolek threatened a doctor after being refused to fill a prescription Percodan by revealing his concealed weapon to intimidate him?
In this case I agree on his guilty verdict.

BigDave said:

http://www.mrsc.org/mc/courts/supreme/101wn2d/101wn2d0259.htm



What do you want to happen here Drew? A discussion that this does apply in some situations and not in others?

In the one you cite Maciolek threatened a doctor after being refused to fill a prescription Percodan by revealing his concealed weapon to intimidate him?
In this case I agree on his guilty verdict.

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I don't have a problem with the guilty verdicts in the three Maciolek cases. I'm not going to summarize their facts, but the behavior was clearly intended to induce fear in the victims. I have a problem with the statute being applied to behavior where someone happens to be frightened, but that was not the intention of the accused. It seems that under Maciolek, there should have to be proof that the actor intended to cause a reasonable fear in persons, not just proof that he inadvertently scared someone, without trying to do so.

olypendrew said:

I don't have a problem with the guilty verdicts in the three Maciolek cases. I'm not going to summarize their facts, but the behavior was clearly intended to induce fear in the victims. I have a problem with the statute being applied to behavior where someone happens to be frightened, but that was not the intention of the accused. It seems that under Maciolek, there should have to be proof that the actor intended to cause a reasonable fear in persons, not just proof that he inadvertently scared someone, without trying to do so.

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What would you considered proof? As in Maciolek case, a disagreement when told no on a narcotic, opening of a jacket to display a firearm is likely just a summary of what the testimony was but it does go down that path of natural progression.

BigDave said:

What would you considered proof? As in Maciolek case, a disagreement when told no on a narcotic, opening of a jacket to display a firearm is likely just a summary of what the testimony was but it does go down that path of natural progression.

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The proof would vary with every case, obviously. The need to prove some degree of mens rea should not. Vancouver takes the position that whether one intends to frighten or does so accidentally is irrelevant, and an intent to frighten is not something that needs to be proved.

olypendrew said:

The proof would vary with every case, obviously. The need to prove some degree of mens rea should not. Vancouver takes the position that whether one intends to frighten or does so accidentally is irrelevant, and an intent to frighten is not something that needs to be proved.

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Well I do agree with you Drew on this issue although I would point out as well in the two cases in Vancouver this last year, both could and maybe should have been avoided.

As with forum the concept is to make open carry the norm, what is normal can vary of course.
To me it would be that to carry in a manner that did not draw attention to me while exercising my right to be armed and carry in a responsible manner (holstered).

Should we asked, why were these two incidents noticed by so many? when so many on this forum and others do so daily and yet do not draw that kind of attention, we must take stock in what we do.