First Case Charged Under I-594

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Jered
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First Case Charged Under I-594

Post by Jered »

I think that this is the best story.
In what’s believed to be the first prosecution under a 2014 voter-approved background check law, a former Oak Harbor, Washington, resident has been charged with illegally transferring a .22-caliber pistol that was later used in a homicide.
"Firearm" means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder
That's how the state law defines a firearm.
Twenty-five-year-old Mark Mercado is charged with one count of unlawful transfer of a firearm. That’s a gross misdemeanor punishable by up to a year in jail. A warrant for his arrest has been issued, but the prosecutor’s office says his whereabouts are not known.
In charging documents, the Island County prosecutor alleges that on November 9, 2015, Mercado gave a Phoenix Arms HP-22 pistol to David Nunez. The following evening, investigators believe that same gun was used to murder Johnson in a dispute over an impounded car.
Here's some of the Washington State Jury Instructions:
A temporarily disabled or malfunctioning gun may still meet this statutory definition of firearm. State v. Padilla, 95 Wn.App. 531, 533, 978 P.2d 1113 (1999) (statutory element of unlawful possession of a firearm in the second degree); see also State v. Anderson, 94 Wn.App. 151, 158–63, 971 P.2d 585 (1999), reversed on other grounds 141 Wn.2d 357, 5 P.3d 1247 (2000). The Padilla court held that a “disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time period is a firearm within the meaning of RCW 9.41.010(1).” State v. Padilla, 95 Wn.App. at 535. Under Padilla and Anderson, temporarily disabled guns may qualify as “firearms” under the statute, but “gun-like objects” and permanently disabled guns do not. State v. Padilla, 95 Wn.App. at 535; State v. Anderson, 94 Wn.App. at 162.
As far as I can tell, Washington has not released any jury instructions for the RCWs where I-594 is located.

Here is a Washington court case about that definition of a firearm.

Oh, and...here's the evidence that they're using:
According to charging documents, Nunez contacted Mercado via text message looking for a “toolie,” a slang word for a gun. Mercado allegedly wrote back, “Not a problem” and asked “can you get here in less than 10 minutes.”
Detectives say they also recovered a partial text message from Nunez to Mercado sent the night of the murder that read in part, “I took your bullets and then put gloves on to …”
Later, Mercado gave a statement to detectives in which he said that he met with Nunez and provided him a .22 caliber-pistol. Since that interview, detectives have been unable to locate Mercado, who moved out of his apartment in Oak Harbor. The gun has also not been recovered. Detectives believe it was disposed of in the ocean after Johnson’s murder.
Derp...

Of course, it's still kind of hard to prosecute someone for unlawfully selling a firearm, if you can't find the alleged firearm.

I wonder if the lawyer in this case could use Haynes for a defense, because it requires him to report an unlawful activity he is engaged in to the authorities.
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Frankingun
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Re: First Case Charged Under I-594

Post by Frankingun »

My brain is hurting from watching the debate.

So, they're prosecuting based on a text message thread?
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Jered
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Re: First Case Charged Under I-594

Post by Jered »

Frankingun wrote:My brain is hurting from watching the debate.

So, they're prosecuting based on a text message thread?
Well, that and a confession.

They can't actually find the gun that he sold.

:roll:
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Netpackrat
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Re: First Case Charged Under I-594

Post by Netpackrat »

Not sure whether to be glad it's a POS and not some normal dude getting jacked up by this, or annoyed that he isn't a very sympathetic defendant from the standpoint of challenging the law.
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Kommander
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Re: First Case Charged Under I-594

Post by Kommander »

Netpackrat wrote:Not sure whether to be glad it's a POS and not some normal dude getting jacked up by this, or annoyed that he isn't a very sympathetic defendant from the standpoint of challenging the law.
The annals of the Supreme Court are filled with unsympathetic defendants. Miranda in particular was a scumbag and that contributed to the treatment he got by the local PD.
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Netpackrat
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Re: First Case Charged Under I-594

Post by Netpackrat »

Kommander wrote:
Netpackrat wrote:Not sure whether to be glad it's a POS and not some normal dude getting jacked up by this, or annoyed that he isn't a very sympathetic defendant from the standpoint of challenging the law.
The annals of the Supreme Court are filled with unsympathetic defendants. Miranda in particular was a scumbag and that contributed to the treatment he got by the local PD.
Yeah, I know that. I'm also curious why they are pursuing a misdemeanor charge rather than accessory to murder.
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Jered
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Re: First Case Charged Under I-594

Post by Jered »

They probably don't have enough evidence to prove he's an accomplice.

This is definitely an interesting case, because they don't actually have the firearm to examine it, and prove that it actually meets the legal definition of a firearm.
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skb12172
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Re: First Case Charged Under I-594

Post by skb12172 »

Maybe they figure he is more likely to plea with a misdemeanor. That way, they still get their conviction. With a misdemeanor charge, I think I would take my chances at trial.
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Jered
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Re: First Case Charged Under I-594

Post by Jered »

This guy might not be that smart, though.
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Windy Wilson
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Re: First Case Charged Under I-594

Post by Windy Wilson »

Wait, wait, WAIT, whose definition of explosive is used here? It has to be either commonly in use or (preferred) a definition set out in the statutes. Chemically, smokeless powder is a propellant, not an explosive. Only Black Powder is an explosive (with the possible exception of Pyrodex and other powders of thal ilk). Doesn't the Washington Infringement on the Second Amendment apply only to Black Powder devices?
Last edited by Windy Wilson on Wed Oct 26, 2016 6:15 pm, edited 1 time in total.
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