Fish Or Man

Friday, July 22, 2005

Brief Of Appellant

For those able to (and willing to) follow the legal crap required in my case:


No. 05 1 00161 4


SUPERIOR COURT OF WASHINGTON FOR KITTITAS COUNTY



Fish Or Man, Appellant,

vs.

CITY OF ELLENSBURG, Respondent.

BRIEF OF APPELLANT




Fish Or Man,
Pro se Appellant

PO Box ******
******* WA 98***
(509) ***-****








TABLE OF CONTENTS

A. ASSIGNMENTS OF ERROR…………………………………….…… 1
Assignments of Error
No. 1….……………………………………………………. 1
No. 2……………………………………………………….. 1

Issues Pertaining to Assignment of Error
No. 1……………………………………………………….. 1
No. 2……………………………………………………….. 1

B. STATEMENT OF THE CASE……………………………….………... 2

C. ARGUMENT………………………………………………….……….. 3

D. CONCLUSION………………………………………………………... 4






TABLE OF AUTHORITIES

Table of Cases

State v. Spencer, 75 Wn. App. 118, 876 P.2d 939 (1994)………….……... 1

Constitutional Provisions

Article 1, section 24 of the Washington Constitution…………..……..…... 1

Statutes

RCW 9.41.270 (Weapons apparently capable of producing bodily
harm - Unlawful carrying or handling - Penalty – Exceptions)…….….….. 1
RCW 9.41.290 (State Preemption)………..……………………….…..…... 1

Other Authorities

Ellensburg City Code 7.32.08 (Making, Selling,
Concealing Weapons)……………………………………………….....….. 1






ASSIGNMENTS OF ERROR


Assignments of Error


1. The trial court erred in denying the defendant’s motion to dismiss by order entered on March 3, 2005.

2. The trial court erred in allowing Jury Instruction No. 5, the wording of which came from Ellensburg City Code 7.32.08, which the defendant was charged under. Both the Jury Instruction and the City Code are in violation of Article 1, section 24 of the Washington Constitution.


Issues Pertaining to Assignment of Error


Is Ellensburg City Code 7.32.08 (Making, Selling, Concealing Weapons), preempted by RCW 9.41.290, (State Preemption), for being more restrictive than RCW 9.41.270, (Weapons apparently capable of producing bodily harm -- Unlawful carrying or handling -- Penalty – Exceptions)? (Assignment of Error 1.)

Does Jury Instruction No. 5 and Ellensburg City Code 7.32.08 violate Article 1, section 24 of the Washington Constitution because neither allows exceptions in cases of self-defense? (Assignment of Error 2.)






B. STATEMENT OF THE CASE


On May 22, 2004, Fish Or Man withdrew money from his Washington Mutual account, located inside the Ellensburg, WA Fred Meyer store while openly carrying a handgun. On that same day, Fish Or Man was approached and questioned by Ellensburg Police. Fish Or Man was not cited and continued openly carrying a handgun.

On June 1, 2004, Fish Or Man filed a complaint against Ellensburg Police officers’ actions during the May 22, 2004 questioning, (Exhibit D-1, Ellensburg Police Department Report). Also on June 1, 2004, Ellensburg Police officer Ray Cedeno issued a citation against Fish Or Man under Ellensburg City Code 7.32.08 by way of summons, (Citation filed with Trial Court on June 3, 2004).

Fish Or Man’s Motion for Dismissal was denied on March 3, 2005. Fish Or Man was convicted on May 6, 2005.





C. ARGUMENT

Argument Issue 1

Ellensburg City Code 7.32.08 follows:

(a) It is unlawful for any person to manufacture, sell, dispose of or have in his possession any instrument or weapon of the kind usually know as a sling-shot, sand club, or metal knuckles; or to carry or conceal any dagger, dirk, knife, pistol, or other weapon apparently capable of producing bodily harm in a manner, under circumstances, and at a time or place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons; or to use any contrivance or device for suppressing the noise of any firearm.

(b) Any person violating the provisions of this section shall upon conviction thereof be guilty of a gross misdemeanor. (Ord. 3676 sl, 1990; Ord. 3492 sl, 1985)



The above Ellensburg City Code 7.32.08 uses the following italic wording from RCW 9.41.270:
(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

(2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.
(3) Subsection (1) of this section shall not apply to or affect the following:

(a) Any act committed by a person while in his or her place of abode or fixed place of business;

(b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;

(c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;

(d) Any person making or assisting in making a lawful arrest for the commission of a felony; or

(e) Any person engaged in military activities sponsored by the federal or state governments.
[1994 sp.s. c 7 § 426; 1969 c 8 § 1.]


Ellensburg City Code 7.32.08 declares some of the same activities illegal as RCW 9.41.270, but does not allow for any exceptions for these activities.

Ellensburg City Code 7.32.08 has no exceptions to “…manifests an intent to intimidate another or that warrants alarm…” yet:

  1. Corresponding state law, (RCW 9.41.270), allows for exceptions in cases of; “…place of abode or fixed place of business…”
  2. Corresponding state law, (RCW 9.41.270), allows for exceptions in cases of; “Any person…vested by law with a duty to preserve the public safety…”
  3. Corresponding state law, (RCW 9.41.270), allows for exceptions in cases of; “Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another…”
  4. Corresponding state law, (RCW 9.41.270), allows for exceptions in cases of; “Any person making or assisting in making a lawful arrest…”
  5. Corresponding state law, (RCW 9.41.270), allows for exceptions in cases of; “Any person engaged in military activities…”

If Ellensburg City Code 7.32.08 were enforced as written, any person, including those from law enforcement to citizens acting in self-defense, could be prosecuted. This is inconsistent with, more restrictive than, and exceeds the requirements of state law.

Authority to repeal firearm restrictions that are inconsistent with, more restrictive than, and exceed the requirements of state law is given in RCW 9.41.290, (State Preemption);
The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.


Argument Issue 2

Jury Instruction No. 5 is wording directly from Ellensburg City Code 7.32.08. As with the Ellensburg City Code, these firearms restrictions are stated without exceptions. As previously noted, supra, there are five exceptions allowed for in the state law version. In leaving out the exceptions for "presently threatened unlawful force by another", RCW 9.41.270(3)(c), Jury Instructions No. 5 and Ellensburg City Code 7.32.08 violate Article 1, section 24 of the Washington Constitution;
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.


Further discussion on the Constitutionality of carrying or displaying particular types of weapons in a manner that warrants alarm for the safety of other persons is found in State v. Spencer, 75 Wn. App. 118, 876 P.2d 939 (1994). At issue was whether RCW 9.41.270 was Unconstitutional. RCW 9.41.270 was ruled to not violate Article 1, section 24 of the Washington Constitution, because it included the exceptions for “presently threatened unlawful force by another,” [State v. Spencer, 75 Wn. App. 118, 876 P.2d 939 (1994)];
“…Spencer argues that RCW 9.41.270 improperly narrows an individual's right to bear arms in self-defense. However, as discussed, supra, we have concluded that the statute's restriction on self-defense is minimal because (1) weapons may be carried in response to "presently threatened unlawful force by another" and (2) if there is no present threat, weapons may be carried in a manner that does not warrant alarm in others…”

Both Jury Instructions No. 5 and Ellensburg City Code 7.32.08 are given without this exception.





D. CONCLUSION

In the interests of justice, the appellant seeks a reversal of the trial court’s findings in this matter, including the repealing of Ellensburg City Code 7.32.08. The appellant also requests just relief from costs associated with defending against this color of law charge.

DATED this ____ day of July, 2005


Respectfully submitted,



_______________________________

Fish Or Man,
Pro se Appellant