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     IN CLERKS OFFICE    X
                                                                    This opinion was
                                                                     filed for record
                                                                  at o'im.on JVLAin^ 3^/<j
suksme      amiE CF «»8HNeroM
; CATeJUILIM                                                        susan L. Carlson
                                                                  Supreme Court Clerk
         CHIEFJUSTIGE




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON


JERRY L. BARR III,
                                                   No. 96072-1
                        Respondent,

               V.                                  EN BANC


SNOHOMISH COUNTY SHERIFF,
                                                   Filed:      HAY 0 9 2019
                        Petitioner.



         YU, J. — This case asks us to decide whether the Snohomish County sheriff

(the Sheriff) is required to issue a concealed pistol license(CPE)to an individual

whose sealed juvenile record includes adjudications for class A felonies. In this

case, the answer is no. The Sheriff is not required to issue a CPL to a person who

"is prohibited from possessing a firearm under federal law." RCW 9.41.070(l)(a).

Due to respondent Jerry Barr's class A felony adjudications, federal law provides

that it is unlawful for him to "possess in or affecting commerce, any firearm or

ammunition." 18 U.S.C. § 922(g). We therefore reverse the Court of Appeals and
Barr v. Snohomish County Sheriff, No. 96072-1


hold that Barr is not entitled to a writ of mandamus requiring the Sheriff to issue

him a CPL.


                  Factual Background and Procedural History


       In 1992, when he was a juvenile, Barr was adjudicated guilty of three

offenses, two of which are classified as class A felonies.^ His criminal history also

includes three convictions as an adult between 1996 and 2000.


       In 2016, Barr received an order restoring his firearm rights as to the three

adult convictions and one of the offenses he committed as a juvenile. The order

was issued pursuant to RCW 9.41.040(4), which allows a court to restore firearm

rights after an individual has spent a number of consecutive years in the

community without being convicted of any other crimes. RCW 9.41.040(4) does

not apply to class A felonies and sex offenses.

       Barr's remaining two juvenile adjudications are class A felonies. In

September 2016, Barr secured orders sealing the records of these two adjudications

and declaring that "[s]o long as this case remains sealed, the offenses ... do not

prohibit [Barr] from possessing firearms under RCW 9.41.040." Clerk's Papers

(CP)at 46-47.




      'Because the records of these juvenile adjudications are sealed, we do not identify the
exact offenses.
Barr v. Snohomish County Sheriff, No. 96072-1


       With these orders in hand, Barr applied for a CPL from the Sheriff in

November 2016. The Sheriff denied the application based on the two sealed class

A felonies, which were revealed in a search of the National Instant Criminal

Background Check System and the Washington State Patrol criminal history

database. The Sheriff determined that the two class A felonies, whether sealed or

not, prohibited Barr from possessing a firearm pursuant to 18 U.S.C. § 922(g)(1),

which made him ineligible for a CPL. 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

Wn. 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 Wn.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 Wn.2d 68, 76, 17 P.3d 1178 (2001). We review questions of law

de novo. Cost Mgmt. Servs., Inc. v. City ofLakewood, 178 Wn.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 Wn.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 Wn. 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 Wn. App. at 474. Therefore,"there [were] no longer official records




                                               10
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.


                                                11
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.




                                                12
Barr v. Snohomish County Sheriff, No. 96072-1




WE CONCUR:




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