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"Quiet Enjoyment":

"Eckenrode argues that there was no direct evidence that any weapons were, in fact, there to protect any illicit business, as opposed to merely expressions of Eckenrode's quiet enjoyment of his article I, section 24 right to bear arms." State v. Eckenrode, 2007 WL 177917 para. 17 (Wash. Sup. Ct. Jan. 25). The Washington Supreme Court finds that the circumstantial evidence was enough to rebut the quiet enjoyment theory.

(The reason for the inquiry is indeed the right to bear arms: "In the 'Hard Time for Armed Crime Act' of 1995, the people of the State of Washington recognized that '[a]rmed criminals pose an increasing and major threat to public safety and can turn any crime into serious injury or death.' Accordingly, under I-159, defendants who commit armed crimes generally receive enhanced sentences. Our constitution also guarantees the right to bear arms. [Wash.] Const. art. I, ยง 24. Over the years we have tried to harmonize both legal commands to ensure that people are not punished merely for exercising this constitutional right. To this end, to establish that a defendant was armed for purposes of the sentencing enhancement, the State must prove that a weapon was easily accessible and readily available for use and that there was a nexus or connection between the defendant, the crime, and the weapon.")

eric (mail):
Passively being armed while committing a crime seems to me to be a really low bar. The test seems to be is a person is in possession of a readily accessible firearm while committing a crime then the harsher sentence applies. The court insists that the nexus requirement was reached by circumstantial evidence, while only discussing the police scanner. Possession of a police scanner, while obviously showing that the defendant was keeping track of police movements, seems to say nothing about what his weapons were for. Furthermore, he apparently called the police (as dumb criminals are know to do) because he was using the weapon in a defensive manner.

Gun + Scanner + Weed (lots in this case) = Harsher Conviction

Seems arbitrary to me.
1.26.2007 6:39pm
jnet (mail):
This doesn't strike me as surprising or unusual - criminal juries in WA don't need direct evidence. Circumstantial evidence will suffice.
1.26.2007 6:42pm
eric (mail):
Oh yeah, apparently these are dangerous weapons:

The following instruments are included in the term deadly weapon: Blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.

Mind those sling shots Washington residents.
1.26.2007 6:44pm
Annonymous coward (mail):
Notice that the traditional wording, as carried throughout at least the mountain west from territorial days was slung shot a variety of morning star used as a blackjack - cf. flashlight batteries in a sock or a sand filled sock watered with whatever was convenient for use as a weapon.

The traditional usage and meaning of slung shot was here replaced for whatever reason but the normal usage was slung shot and of course though there are rightous uses for a blackjack it has commonly been considered a thieve's tool.
1.26.2007 7:18pm
Doug Sundseth (mail):
For that matter, "any knife having a blade longer than three inches" includes some butter knives and nearly all kitchen knives. I guess you'd better stay out of the kitchen in Washington if you plan to violate any laws; "deadly weapons" are often "easily accessible" there. Heck, if you're cutting up enhanced brownies when the police arrive, all the elements of the enhancement would be, on their face, satisfied.
1.26.2007 7:18pm
Eugene Volokh (www):
In all states, criminal juries generally don't need direct evidence, and circumstantial evidence is enough (of course, assuming it's strong enough).
1.26.2007 7:26pm
Cornellian (mail):
For that matter, "any knife having a blade longer than three inches" includes some butter knives and nearly all kitchen knives.

Let's not forget the plastic cutlery one sees in many cafeterias.
1.26.2007 8:49pm
Cornellian (mail):
I've sometimes wondered whether a "right to bear arms" in a state constitution has been relied upon to strike down a prohibition on owning or possessing firearms imposed as part of a sentence for a criminal conviction. E.g. a state statute provides for a lifetime ban on owning or possessing firearms for anyone convicted of speeding - what result?
1.26.2007 8:52pm
Andy Freeman (mail):
To achieve the life-time ban, the state statute need merely have a possible sentence longer than one year. That possibility triggers a life-time ban by the feds.

Thus even if the state constitution would forbid a life-time ban for such a crime, a state statute can cause a life-time ban to occur.

Unless, of course, there's some rule against states causing actions by others that the state is itself forbidden to do.
1.26.2007 9:33pm
eric (mail):
Anon Coward:

So my sling shot is safe if I travel to Washington to pick up the "crop?"
1.26.2007 11:26pm
P_A_C_O (mail):
Apply this hypothetical to the Washington sentencing enhancement law:

A drug dealer, who is also an avid hunter with an extensive collection of shotguns, is arrested following a search (with a warrant) of her home. The search uncovers irrefutable evidence of drug dealing, as well as the dealer's gun collection which was kept in an unlocked gun cabinet in a trophy room with ammunition.

The drug dealer has no history of gun crimes, but she does have a documented history of frequent hunting trips, and a home filled with hunting trophies and various prints, drawings, and paintings, depicting hunting scenes.

The prosecutor argues that the guns were both accessible and readily available for use, because they were stored in an unlocked cabinet with the amunition. As for the nexus between the defendant, the crime, and the weapon, the defendant in this instance is charged with drug dealing, an integral part of dealing drugs is protecting yourself and securing your product, the guns were used for this purpose, even if they were also used for the purpose of hunting.

The prosecutor backs up the nexus argument with some policy: regardless of the dealer's purposes, guns in the home of a drug dealer endangers law enforcement when they seek to enforce the law, and allowing an exception for this drug dealer under these facts will encourage criminals to surround themselves with the trappings of a gun hobby in order to avoid sentence enhancement.

How does the defense pick apart the nexus requirement?

How does the defense argue that the drug dealer's interest in her right to bear arms outweighs the state's interests in enforcing drug laws, and protecting law enforcement personnel in their enforcement efforts?
1.27.2007 10:06pm
ReaderY:
A recall a North Carolina case representing an extreme example of the problem, a domestic rape case involving sex during an argument by a couple on the living room couch in the presence of a dinner knife which had been used for dinner but had been left on the table because the dishes hadn't been cleared. Noting the defendant had no other criminal record, the trial judge concluded, with much regret, that he had no choice but to apply a mandatory sentence of life without parole for rape "in the presence of" a dangerous weapon. And the Supreme Court of North Carolina affirmed.
1.28.2007 12:29am