             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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CITY OF SEATTLE,                          )        NO. 67816-7-1
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                                                                                                  ••'•
                         Respondent,
                                          )        DIVISION ONE
       v.

                                          )        PUBLISHED OPINION
WAYNE EVANS,

                         Petitioner.      )        FILED: June 30,   2014



       Leach, J. — On this discretionary review of Wayne Evans's conviction for

unlawful use of weapons, we must decide the constitutionality of Seattle Ordinance

12A.14.080 under both article I, section 24 of the Washington State Constitution and the

Second Amendment to the United States Constitution.         Evans contends that Seattle's

prohibition on carrying a fixed-blade knife in public violates his federal and state

constitutional right to bear arms. Our state Supreme Court's City of Seattle v. Montana1

decision, rejecting a similar challenge to the same ordinance under the Washington

Constitution, requires rejection of Evans's state constitutional claim. As a matter of first

impression, we hold that as applied in this case, Seattle's prohibition on carrying a fixed-

blade knife in public did not violate Evans's federal constitutional right to bear arms and

affirm his conviction.




            129 Wn.2d 583, 919 P.2d 1218 (1996).
NO. 67816-7-1/2



                                        FACTS


      Seattle Police Officer Michael Conners discovered the knife at issue after a traffic

stop. Conners stopped Evans for speeding. The smell of marijuana, coupled with
furtive movements by Evans and his passenger, made Conners apprehensive about his
own safety. He directed Evans to get out of the vehicle and asked Evans if he had any
weapons on him.

      Evans told Conners that he had a knife in his front right pants pocket. Conners

took from that pocket a fixed-blade kitchen knife in a plastic sheath. Conners arrested
Evans for possessing a fixed-blade knife. Evans said that he had been "jumped" before
in the same neighborhood and that he carried the knife for protection.
      The city of Seattle (City) charged Evans under Seattle Municipal Code (SMC)
12A.14.080, which makes it unlawful to carry a dangerous knife. Evans challenged the
constitutionality of this ordinance in light of the United States Supreme Court's decision
in District of Columbia v. Heller.2 The trial court rejected this challenge. A jury
convicted Evans as charged. Evans appealed to the superior court, which affirmed his

conviction.

       Evans petitioned this court for discretionary review. On October 10, 2012, we
granted Evans's motion for discretionary review of his conviction "to the extent that he
challenges the constitutionality of Seattle Municipal Code 12A.14.080."




       2554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).
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                                 STANDARD OF REVIEW


         We review constitutional issues de novo.3 "This court will presume a legislative

enactment constitutional and, if possible, construe an enactment so as to render it

constitutional."4 Because this case does not involve First Amendment freedoms, we

determine only if SMC 12A.14.080 is unconstitutional as applied to the facts of this

case.5

                                        ANALYSIS


         Evans claims that SMC 12A.14.080 unconstitutionally infringes upon his right to

bear arms under article I, section 24 of the Washington Constitution and the Second

Amendment to the United States Constitution. This ordinance makes it unlawful for a

person knowingly to "[cjarry concealed or unconcealed on his or her person any
dangerous knife, or carry concealed on his or her person any deadly weapon other than
a firearm."6 A "dangerous knife" is "any fixed-blade knife and any other knife having a
blade more than three and one-half inches (3 1/2") in length."7 A "fixed-blade knife"

includes "any knife, regardless of blade length, with a blade which is permanently open
and does not fold, retract or slide into the handle of the knife, and includes any dagger,

sword, bayonet, bolo knife, hatchet, axe, straight-edged razor, or razor blade not in a
package, dispenser or shaving appliance."8

      3 State v. Jorqenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013) (citing State v.
Sieves, 168 Wn.2d 276, 281, 225 P.3d 995 (2010)).
      4 Jorqenson, 179 Wn.2d at 150 (citing Montana, 129 Wn.2d at 589-90).
      5 State v. Carver, 113 Wn.2d 591, 599, 781 P.2d 1308 (1989) (citing State v.
Worrell, 111 Wn.2d 537, 541, 761 P.2d 56 (1988)).
         6 SMC 12A.14.080(B).
         7 SMC 12A.14.010(C).
         8SMC12A.14.010(D).
NO. 67816-7-1/4




       The ordinance includes the following exemptions:

       A. A licensed hunter or licensed fisherman actively engaged in hunting
          and fishing activity including education and travel related thereto; or

       B. Any person immediately engaged in an activity related to a lawful
          occupation which commonly requires the use of such knife, provided
              such knife is carried unconcealed; provided further that a dangerous
              knife carried openly in a sheath suspended from the waist of the
              person is not concealed within the meaning of this subsection;

       C. Any person carrying such knife in a secure wrapper or in a tool box
          while traveling from the place of purchase, from or to a place of repair,
          or from or to such person's home or place of business, or in moving
          from one (1) place of abode or business to another, or while in such
              person's place of abode or fixed place of business.191
       Article I, section 24 of the Washington Constitution provides, "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." The Second Amendment to

the United States Constitution states, "A well regulated militia being necessary to the

security of a free state, the right of the people to keep and bear arms, shall not be

infringed."

       "Where feasible, we resolve constitutional questions first under our own state

constitution before turning to federal law.10 Evans invites us to apply recent United

States Supreme Court Second Amendment jurisprudence to reject the Washington

Supreme Court's interpretation of article I, section 24. This invitation ignores our state




       9SMC12A.14.100.
       10 Jorqenson, 179 Wn.2d at 152.

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Supreme Court's binding determination "that the state and federal rights to bear arms
have different contours and mandate separate interpretation."11

      In Montana, our Supreme Court addressed a similar challenge to SMC

12A. 14.080 under article I, section 24. The four justices signing the lead opinion

concluded that this ordinance does not violate the state constitution because it is a

"reasonable police regulation."12 Two justices concurred in the result on the basis that
the defendants' "ordinary knives" were not "arms" for purposes of article I, section 24
and considered it unwise "to speculate about the boundaries of the 'reasonable

regulation' limit on the constitutional right to bear arms in self-defense."13 Three other
justices agreed that the defendants' knives were not arms but believed that the
ordinance unreasonably restricted a citizen's state constitutional right to carry arms for
self-defense.14 Montana did not involve a challenge under the Second Amendment.

       When a divided court decides a case and no single rationale explaining the result

enjoys the assent of a majority, the narrowest ground upon which a majority agreed
represents the court's holding.15 Applying this rule, the narrow decision that the
defendants' "ordinary knives" were not "arms" for purposes of article I, section 24,
represents Montana's holding. Evans offers no meaningful distinction between his knife
and those at issue in Montana.        Although the City does not respond to Evans's
 argument that his knife qualifies as "arms," this failure does not alter the precedential

       11 Jorqenson, 179 Wn.2d at 152.
       12 Montana, 129 Wn.2d at 599.
       13 Montana, 129 Wn.2d at 599-600.
       14 Montana, 129 Wn.2d at 600-01.
        15 State v Valdez, 167 Wn.2d 761, 775, 224 P.3d 751 (2009).
NO. 67816-7-1/6



authority of Montana. Therefore, Evans's knife was not "arms" for purposes of article I,

section 24 and was not afforded any protected status.

      We next turn to Evans's Second Amendment challenge.                Primarily, he relies

upon Heller, decided after our Supreme Court decided Montana. There, the United

States Supreme Court struck down a District of Columbia ordinance prohibiting

possession of handguns in the home, declaring that the Second Amendment

guarantees "the right of law-abiding, responsible citizens to use arms in defense of
hearth and home."16 This right applies to states through the Fourteenth Amendment to

the United States Constitution.17

       However, the Heller Court qualified its decision, emphasizing that "since this

case represents this Court's first in-depth examination of the Second Amendment, one

should not expect it to clarify the entire field."18 The Court also stated,

       [Njothing in our opinion should be taken to cast doubt on longstanding
       prohibitions on the possession offirearms by felons and the mentally ill, or
       laws forbidding the carrying offirearms in sensitive places such as schools
       and government buildings, or laws imposing conditions and qualifications
       on the commercial sale of arms.1191

Since the Supreme Court decided Heller, it has not defined the full scope of an

individual's Second Amendment right.




       16 Heller, 554 U.S. at 635.
       17 McDonald v. Citv of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3050, 177 L. Ed.
2d 894 (2010); Sieves, 168 Wn.2d at 291 (Second Amendment protects an individual
right to bear arms from state interference through the due process clause of the
Fourteenth Amendment).
       18 Heller, 554 U.S. at 635.
       19 Heller, 554 U.S. at 626-27.
NO. 67816-7-1/7



      As a result, state courts and lower federal courts have struggled to decide the

extent, if any, that Second Amendment rights extend beyond the home.20 We assume,
for purposes of this opinion, that the Second Amendment right to bear arms includes
some right to bear arms outside of the home for purposes of self-defense.21 We also
assume that Evans's knife qualifies as "arms" under the Second Amendment.

       In Heller, the Supreme Court "declinfed] to establish a level of scrutiny for

evaluating Second Amendment restrictions."22 It reasoned, "Under any of the standards
of scrutiny that we have applied to enumerated constitutional rights, banning from the
home 'the most preferred firearm in the nation to "keep" and use for protection of one's
home and family,' would fail constitutional muster."23 The Court rejected a "rational

       20 The Second, Third, and Fourth Circuits have assumed the Second
Amendment has some application outside the home, without deciding the issue. See
Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Kachalskv v. County of Westchester,
701 F.3d 81, 89 (2d Cir. 2012); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.
2013). Those courts concluded, however, that because Heller described the "core" of
the right to bear arms as the "right of law-abiding, responsible citizens to use arms in
defense of hearth and home," Heller, 554 U.S. at 635, any right of armed self-defense
outside the home would be outside the "core" of the Second Amendment. Drake, 724
F.3d at 430-31; Kachalskv, 701 F.3d at 93-94; Woollard, 712 F.3d at 876. The Seventh
and Ninth Circuits have disagreed with that analysis. After reviewing the historical
record, those courts found that the "core" of the Second Amendment right extends to
armed self-defense outside the home. Peruta v. County of San Diego, 742 F.3d 1144,
1166 (9th Cir. 2014); Moore v. Madigan, 702 F.3d 933, 936-37 (7th Cir. 2012).
Accordingly, both courts concluded that the firearms regulations at issue were
unconstitutional without reference to a level of scrutiny. Peruta, 742 F.3d at 1175-76;
Moore, 702 F.3d at 941.
       21 See Peruta, 742 F.3d at 1155 ("[Mjany of the same cases that the Heller
majority invoked as proof that the Second Amendment secures an individual right may
just as easily be cited for the proposition that the right to carry in case of confrontation
means nothing if not the general right to carry a common weapon outside the home for
self-defense.").
       22 Heller, 554 U.S. at 634.
       23 Heller, 554 U.S. at 628-29 (footnote and citation omitted) (quoting Parker v.
 District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)).
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NO. 67816-7-1/8



basis scrutiny" as too low a standard24 and also rejected an "interest-balancing"

approach.25

      The level of scrutiny (if any) applicable to an arms restriction challenged under

the Second Amendment remains unsettled.26 Evans argues that we should apply strict

scrutiny, but he fails to cite any authority establishing this as the appropriate standard.
Following Heller, courts have generally applied intermediate scrutiny to evaluate
Second Amendment restrictions.27 We apply intermediate scrutiny to evaluate SMC

12A.14.080 under the Second Amendment.28


       24 Heller, 554 U.S. at 629 n.27.
       25 Heller, 554 U.S. at 634-35. The court reasoned,
          We know of no other enumerated constitutional right whose core
         protection has been subjected to a freestanding "interest-balancing"
         approach. The very enumeration of the right takes out of the hands of
         government—even the Third Branch of Government—the power to
         decide on a case-by-case basis whether the right is really worth insisting
          upon. A constitutional guarantee subject to future judges' assessments
          of its usefulness is no constitutional guarantee at all.
Heller, 554 U.S. at 634.
        26 Jorqenson, 179 Wn.2d at 159.
       27 See Jorqenson, 179 Wn.2d at 160-61 (applying intermediate scrutiny to uphold
statute limiting person's right to possess arms when charged with a serious offense);
Drake, 724 F.3d at 436-40 (applying intermediate scrutiny to uphold requirement of
"justifiable need" to carry handgun in public); Schrader v. Holder, 704 F.3d 980, 989-
91 (D.C. Cir. 2013) (applying intermediate scrutiny to uphold prohibition on person
convicted of misdemeanor from possessing a firearm); Woollard, 712 F.3d at 876
(applying intermediate scrutiny to uphold requirement of "good and substantial
 reason" for a permit to carry, wear, or transport a handgun in public); Heller v. District
of Columbia, 670 F.3d 1244, 1256-57, 1261-62 (D.C. Cir. 2011) (applying
 intermediate scrutiny to statutes requiring registration of firearms and prohibiting
 assault weapons); United States v. Booker, 644 F.3d 12, 25-26 (1st Cir. 2011)
 (applying intermediate scrutiny to law prohibiting domestic violence misdemeanor
 offender from possessing a firearm), cert, denied, 132 S. Ct. 1538 (2012); United
 States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (same); United States v. Skoien,
 614 F3d 638, 641-42 (7th Cir. 2010) (same), cert, denied, 131 S. Ct. 1674 (2011);
 United States v. Marzzarella, 614 F.3d 85, 99 (3d Cir. 2010) (applying intermediate
 scrutiny to uphold statute prohibiting possession of handgun with an obliterated serial
 number), cert, denied, 131 S. Ct. 958 ft>ni1V United States v. Reese, 627 F.3d 792,
 802 (10th Cir. 2010) (applying intermediate scrutiny to uphold law prohibiting possession
 of firearm by person subject to domestic violence protection order), cert, denied, 131 S.
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NO. 67816-7-1/9



      "A law survives intermediate scrutiny if it is substantially related to an important

government purpose."29      Phrased differently, a Seattle ordinance burdening an

individual's Second Amendment rights "passes constitutional muster if it is substantially

related to the achievement of an important government interest."30

      Evans contends that SMC 12A. 14.080 is unconstitutional even applying

intermediate scrutiny because this ordinance has no temporal limitation, Evans carried

the knife for self-defense purposes, and Evans was not "untrustworthy." But public

safety and crime prevention are compelling government interests.31 In Montana, the

court determined,

               SMC 12A.14.080 furthers a substantial public interest in safety,
      addressing the threat posed by knife-wielding individuals and those
      disposed to brawls and quarrels, through reducing the number and
      availability of fixed-blade knives in public places in Seattle. It addresses
      the reality of life in our state's largest city, where at all hours residents
      must step outside their homes and workplaces and mingle with numerous




Ct. 2476 (2011); United States v. Miller, 604 F. Supp. 2d 1162, 1171-72 (W.D. Tenn.
2009) (applying intermediate scrutiny and upholding federal felon-in-possession
statute); People v. Mitchell, 209 Cal. App. 4th 1364, 1374, 148 Cal. Rptr. 3d 33 (2012)
(applying intermediate scrutiny to uphold statute prohibiting carrying concealed dirk or
dagger) review denied (Jan. 23, 2013). But see United States v. Enqstrum, 609 F.
Supp. 2d 1227, 1231-35 (D. Utah 2009) (applying strict scrutiny to law prohibiting
domestic violence offenders from possessing firearms).
      28 Jorqenson, 179 Wn.2d at 160-62. Although the court in Jorqenson applied this
standard on the basis that the firearm restriction at issue was limited in the scope of
affected persons and its duration, we conclude that the ordinance at issue here is a
limited restriction applying only to certain types of knives. Thus, intermediate scrutiny is
appropriate.
       29 Jorqenson, 179 Wn.2d at 162 (citing Sieves, 168 Wn.2d at 294 n.18).
       30 Kachalskv, 701 F.3d at 96.
       31 United States v. Salerno, 481 U.S. 739, 748-50, 107 S. Ct. 2095, 95 L. Ed. 2d
697(1987).
NO. 67816-7-1/10


      strangers in public places. Unfortunately, street crime involving knives is a
      daily risk.'32!

       Evans relies upon Moore v. Madiqan.33 where the United States Court of Appeals

for the Seventh Circuit stated, "Heller repeatedly invokes a broader Second Amendment

right than the right to have a gun in one's home, as when it says that the amendment

'guarantee^] the individual     right to   possess and carry weapons in case of

confrontation.' Confrontations are not limited to the home." The court in Moore struck

down an Illinois law that prohibited carrying guns in public, with limited exceptions. The

court explained,

              A blanket prohibition on carrying gun[s] in public prevents a person
      from defending himself anywhere except inside his home .... Illinois has
      lots of options for protecting its people from being shot without having to
      eliminate all possibility of armed self-defense in public.

              Remarkably, Illinois is the only state that maintains a flat ban on
      carrying ready-to-use guns outside the home.'341

      Here, SMC 12A. 14.080 does not "eliminate all possibility of armed self-defense in

public." It does not destroy the right to bear arms in public under the guise of regulating

it.35 This ordinance prohibits carrying a concealed or unconcealed dangerous knife or

carrying a concealed deadly weapon.        It does not ban all knives, nor does it ban

firearms. Therefore, Moore does not support Evans's position.




      32 Montana, 129 Wn.2d at 592-93; see also State v. Spencer, 75 Wn. App. 118,
124, 876 P.2d 939 (1994) ("People have a strong interest in being able to use public
areas without fearing for their lives.").
       33 702 F.3d 933, 935-36 (7th Cir. 2012) (alteration in original) (citation omitted)
(quoting Heller, 554 U.S. at 592).
       34 Moore, 702 F.3d at 940 (citation omitted).
      35 See Heller, 554 U.S. at 628-29.

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NO. 67816-7-1/11




       Because SMC 12A. 14.080 is substantially related to Seattle's important interest

in public safety, we hold that it survives intermediate scrutiny. This ordinance limits the

availability of fixed-blade knives in public places while including adequate exemptions to

limit its effect on innocent conduct.


                                        CONCLUSION


       Because Evans fails to show that prohibiting him from carrying a concealed fixed-

blade kitchen knife in public violates his right to bear arms under either article I, section

24 of the Washington State Constitution or the Second Amendment to the United States

Constitution, we affirm his conviction.




WE CONCUR:




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