FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellant,
`
`v.
`
`MARC ANTHONY WILLY,
`Defendant-Appellee.
`
`No. 21-30006
`
`D.C. Nos.
`1:19-cr-02059-SAB-1
`1:19-cr-02059-SAB
`
`OPINION
`
`Appeal from the United States District Court
`for the Eastern District of Washington
`Stanley A. Bastian, Chief District Judge, Presiding
`
`Argued and Submitted February 7, 2022
`Seattle, Washington
`
`Filed July 26, 2022
`
`Before: Jay S. Bybee and Morgan Christen, Circuit Judges,
`and James V. Selna,* District Judge.
`
`Opinion by Judge Bybee;
`Dissent by Judge Christen
`
`* The Honorable James V. Selna, United States District Judge for the
`Central District of California, sitting by designation.
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellant,
`
`v.
`
`MARC ANTHONY WILLY,
`Defendant-Appellee.
`
`No. 21-30006
`
`D.C. Nos.
`1:19-cr-02059-SAB-1
`1:19-cr-02059-SAB
`
`OPINION
`
`Appeal from the United States District Court
`for the Eastern District of Washington
`Stanley A. Bastian, Chief District Judge, Presiding
`
`Argued and Submitted February 7, 2022
`Seattle, Washington
`
`Filed July 26, 2022
`
`Before: Jay S. Bybee and Morgan Christen, Circuit Judges,
`and James V. Selna,* District Judge.
`
`Opinion by Judge Bybee;
`Dissent by Judge Christen
`
`* The Honorable James V. Selna, United States District Judge for the
`Central District of California, sitting by designation.
`
`
`
`2
`
`UNITED STATES V. WILLY
`
`SUMMARY**
`
`Criminal Law
`
`The panel affirmed the district court’s order granting
`Marc Anthony Willy’s motion to suppress evidence and
`statements obtained after his arrest, in a case that required the
`panel to determine whether there was probable cause to arrest
`Willy for displaying a weapon in a manner that “warrant[ed]
`alarm for the safety of other persons.” Wash. Rev. Code
`§ 9.41.270(1).
`
`Willy was arrested after two people separately reported
`that a man in a truck had displayed a firearm while asking
`them questions about an alleged kidnapping in the area. After
`his arrest, a search of Willy’s vehicle and person recovered
`illegal firearms and a modified CO2 cartridge. He was
`charged with making and possessing a destructive device in
`violation of the National Firearms Act.
`
`Explaining important context for Willy’s actions, the
`panel noted that Washington is an open carry state (i.e., it is
`presumptively legal to carry a firearm openly) in which it is
`a misdemeanor to carry a concealed pistol without a license,
`but also a “shall issue state” meaning that local law
`enforcement must issue a concealed weapons license if the
`applicant meets certain qualifications. The panel wrote that
`the bare fact that Willy displayed a weapon would not be
`sufficient to stop Willy, because there is no evidence that
`Willy was carrying a concealed weapon. Noting that
`
`** This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`UNITED STATES V. WILLY
`
`3
`
`Washington courts have narrowed terms in § 9.41.270(1) to
`preserve the constitutionality of the statute, the panel
`observed that what emerges is a workable standard: The act
`must warrant alarm in a reasonable person for the safety of
`others.
`
`A sheriff’s deputy’s suspicion that Willy had violated
`§ 9.41.270 arose not from his own observations but from the
`accounts of the two reporting parties. The panel wrote that it
`was reasonable for an officer in the sheriff’s deputy’s position
`to rely on the information, but concluded that the deputy did
`not, consistent with Washington law and the Fourth
`Amendment, have probable cause to arrest Willy without
`further inquiry for three reasons. First, it was not clearly
`erroneous for the district court to conclude that neither
`reporting party indicated to the deputy that Willy displayed
`his firearm in a threatening manner. Second, § 9.41.270(1)
`requires more than the mere display of a firearm, and at the
`time the deputy located Willy, he did not have sufficient
`information to reasonably believe Willy had displayed his
`gun in a manner that warrants alarm. The panel wrote that
`although the reports indicated that Willy displayed the
`firearm rather than just carrying it, this distinction does not,
`in an open-carry state, create enough of a possibility of
`criminal activity that Willy was subject to immediate arrest
`without further investigation. Finally, the district court
`accurately stated that § 9.41.270(1) both incorporates a
`reasonable person standard and does not require that a
`person’s actions actively cause alarm.
`
`As the government did not challenge application of the
`“fruit of the poisonous tree” doctrine, the panel affirmed the
`district court’s application of the exclusionary rule to
`
`
`
`UNITED STATES V. WILLY
`
`uppress Willy’s statements, the firearms, and the CO2
`device.
`
`4 s
`
`Dissenting, Judge Christen wrote that the deputy without
`question had probable cause to suspect that Willy violated the
`second clause of § 9.41.270(1) because the reliability of the
`callers’ reports was verified when the details they provided
`checked out; and it was the deputy’s perilous duty to arrest
`Willy, a man he had good reason to believe to be armed and
`mentally compromised, for displaying a firearm “in a manner,
`under circumstances, and at a time and place that . . . warrants
`alarm for the safety of other persons.”
`
`COUNSEL
`
`Richard C. Burson (argued), Assistant United States
`Attorney; Joseph H. Harrington, Acting United States
`Attorney; United States Attorney’s Office, Yakima,
`Washington; for Plaintiff-Appellant.
`
`Jeremy B. Sporn (argued), Federal Defenders of Eastern
`Washington and Idaho, Yakima, Washington, for Defendant-
`Appellee.
`
`
`
`UNITED STATES V. WILLY
`
`5
`
`OPINION
`
`BYBEE, Circuit Judge:
`
`This case requires us to determine whether there was
`probable cause to arrest Marc Anthony Willy for displaying
`a weapon in a manner that “warrant[ed] alarm for the safety
`of other persons.” Wash. Rev. Code § 9.41.270(1). Willy
`was arrested after two people separately reported that a man
`in a truck had displayed a firearm while asking them
`questions about an alleged kidnapping in the area. After his
`arrest, a search of Willy’s vehicle and person recovered
`illegal firearms and a modified CO2 cartridge. Willy was
`charged with making and possessing a destructive device in
`violation of the National Firearms Act, 26 U.S.C. § 5861.
`The district court granted Willy’s motion to suppress all
`evidence and statements obtained after his arrest because his
`arrest was not supported by probable cause. We affirm.
`
`I. BACKGROUND
`
`On May 12, 2019, the Yakima County’s Sheriff’s Office
`received a call from a witness (“Reporting Party 1”) stating
`that a man had pulled up outside of his home in a vehicle and
`displayed a firearm. Dispatch relayed this information to
`Deputy Curtis Thaxton, who interviewed Reporting Party 1
`at his residence. Reporting Party 1 told Deputy Thaxton that
`a white male in a green truck pulled up on the street in front
`of his house and began talking about being abducted and kept
`somewhere in the area. The man said he was trying to find
`the place where he was kept. During the conversation, the
`man pulled out a semiautomatic pistol, racked the slide, and
`then put it down. Reporting Party 1 expressed concern about
`the man’s mental state. He provided Deputy Thaxton with
`
`
`
`UNITED STATES V. WILLY
`
`he truck’s license plate number, and the vehicle came back
`as registered to Marc Willy. Thaxton showed Reporting
`Party 1 Willy’s Department of Licensing photo, and he
`identified Willy as the man with whom he had spoken.
`Reporting Party 1 said that Willy made no threats to him, nor
`had Willy pointed the pistol at him at any time.
`
`6 t
`
`About ten minutes after leaving Reporting Party 1’s
`residence, Deputy Thaxton responded to another report from
`dispatch. The second call had come from Reporting Party 2,
`who lived about three miles from the previous caller. Deputy
`Thaxton spoke to the second witness over the phone because
`Reporting Party 2 had already left her residence. Reporting
`Party 2 stated that a man with a name like “Willis” pulled up
`to her gate in a green truck when she was leaving her house
`and told her that he had been kidnapped and held in a
`camouflaged trailer or van in the area and that he was trying
`to find it. While they were talking, the man told her he was
`armed and then displayed a pistol and put it away. Reporting
`Party 2 told the man she did not know the place he was
`looking for, and he drove away. Reporting Party 2 said that
`she was not was not directly threatened, nor was Willy
`argumentative or hostile.
`
`Deputy Thaxton resumed patrol and testified that at this
`point he was concerned that Willy was “a danger to himself
`or others in the area,” because
`
`the way he was rambling on, that things
`weren’t completely coherent what was going
`on; that he would possibly use it if confronted
`with somebody else, that he had made contact
`with somebody else; that once the gun’s
`out—normal people just don’t walk around
`
`
`
`UNITED STATES V. WILLY
`
`7
`
`displaying firearms out to people when they
`pull up.
`
`Thaxton believed Willy “had already committed the violation
`of carry, exhibit, draw a dangerous weapon or firearm with an
`intent to create an affront or alarm to another.” See Wash.
`Rev. Code § 9.41.270.1 Deputy Thaxton located the green
`truck pulling into a gas station. Once he confirmed the
`license plate matched the one given to him by Reporting
`Party 1, Deputy Thaxton turned on his emergency lights and
`conducted a “high-risk stop.” With his firearm drawn,
`Deputy Thaxton ordered Willy out of the vehicle. Willy
`complied with all of Deputy Thaxton’s orders. While making
`Willy turn around, Deputy Thaxton saw a pistol holstered on
`his hip. Deputy Thaxton removed the gun, put Willy in
`handcuffs, and escorted him to the back seat of the police
`vehicle.
`
`After securing Willy’s pistol in the patrol car, Deputy
`Thaxton noticed that the gun had the serial number scratched
`off. Deputy Thaxton read Willy his Miranda rights, and
`Willy indicated that he was willing to talk to Deputy Thaxton.
`
`1 Section 9.41.270 provides in relevant part:
`
`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.
`
`Wash. Rev. Code § 9.41.270(1). Violation of this subsection is a gross
`misdemeanor. Id. § 9.41.270(2).
`
`
`
`UNITED STATES V. WILLY
`
`8 W
`
`illy told Deputy Thaxton that he had been abducted and
`kept at a location for several days and that he had escaped but
`police had not done anything to help him. When asked about
`the scratched off serial number, Willy stated that he bought
`the gun already in that condition three or four years
`previously at a gun show in Spokane.
`
`Willy consented to a search of his truck and stood by the
`patrol car while Deputy Thaxton started the search. As
`Deputy Thaxton moved to the passenger-side door, Willy told
`him that there was a sawed-off shotgun on the rear floorboard
`of the truck. Deputy Thaxton recovered a non-functional
`short-barrel shotgun from the vehicle. After the vehicle
`search, Deputy Thaxton took Willy to Yakima County Jail for
`booking. When Thaxton searched Willy, he recovered a CO2
`cartridge that had crimp marks around the neck and two
`pieces of fuse coming out of the neck. ATF agents later
`determined that the device qualified as a “destructive device”
`under 26 U.S.C. § 5845(f).
`
`Deputy Thaxton conferred with the prosecutor’s office
`and told them his reasons for arresting Willy. The prosecutor
`recommended charging Willy with possessing an
`altered-number pistol and a short-barrel shotgun. In his
`“Declaration of Probable Cause,” in support of those two
`charges, Deputy Thaxton wrote that “[Willy] displayed a
`black semi auto pistol [to Reporting Witness 1] and loaded it
`(racked the slide). [Willy] never threatened anyone with it
`and didn’t point it towards him.” He also wrote that
`Reporting Witness 2 said “[Willy] told her he was armed and
`displayed a black pistol” and that “[Willy] never threatened
`her with it or pointed it at her.” Willy was ultimately charged
`with violating § 9.41.270 and altering the serial number on
`
`
`
`UNITED STATES V. WILLY
`
`9
`
`the pistol. The record does not disclose any resolution of the
`state charges.
`
`A federal grand jury in the Eastern District of Washington
`returned a three-count indictment charging Willy with
`receiving and possessing an
`improvised explosive
`device—the altered CO2 cartridge—in violation of 26 U.S.C.
`§ 5861(c), receiving and possessing an improvised explosive
`device which was not registered to him in violation of
`26 U.S.C. § 5861(d), and making an improvised explosive
`device in violation of 26 U.S.C. § 5861(f). Willy filed a
`motion to suppress the evidence. A hearing on the motion
`was held, during which Deputy Thaxton testified. The
`district court granted the motion to suppress, finding that
`although Deputy Thaxton had reasonable suspicion to
`conduct an investigatory stop, Thaxton lacked probable cause
`to make the arrest. The evidence was “tainted by the
`illegality of the arrest.” The government filed a timely notice
`of appeal.
`
`II. JURISDICTION AND STANDARD OF REVIEW
`
`The district court had jurisdiction under 18 U.S.C. § 3231.
`We have jurisdiction pursuant to 18 U.S.C. § 3731 and
`28 U.S.C. § 1291. We review de novo the district court’s
`ruling on a motion to suppress and for clear error any
`underlying findings of historical fact. United States v. Torres,
`828 F.3d 1113, 1118 (9th Cir. 2016). We must “give due
`weight to inferences drawn from th[e] facts by resident judges
`and local law enforcement officers.” Ornelas v. United
`States, 517 U.S. 690, 699 (1996). The district court’s
`interpretation of state law, including state statutes, is
`reviewed de novo. Brunozzi v. Cable Commc’ns, Inc.,
`851 F.3d 990, 995 (9th Cir. 2017).
`
`
`
`10
`
`UNITED STATES V. WILLY
`
`III. DISCUSSION
`
`The Fourth Amendment, applicable to the United States
`and made applicable to the states by the Fourteenth
`Amendment, protects the right of the people to be secure in
`their persons, houses, papers, and effects against
`unreasonable searches and seizures. U.S. Const. amend. IV;
`see Terry v. Ohio, 392 U.S. 1, 8 (1968). The Fourth
`Amendment provides that a warrant for arrest “shall [not]
`issue, but upon probable cause.” In this case, Willy was
`arrested for violating § 9.41.270—only later was he charged
`with altering the serial number on the pistol (the basis for a
`second state charge actually filed against him) or possessing
`the crimped CO2 cartridge (the basis for the federal charges).
`The evidence supporting the federal charges was seized after
`Willy’s arrest during a search at the jail. Thus, the
`“constitutional validity of the search . . . depend[s] upon the
`constitutional validity of [Willy’s] arrest.” Beck v. Ohio,
`379 U.S. 89, 91 (1964). Accordingly,
`
`[w]hether that arrest was constitutionally valid
`depends in turn upon whether, at the moment
`the arrest was made, [Deputy Thaxton] had
`probable cause to make it—whether at that
`moment the facts and circumstances within
`[his] knowledge and of which [he] had
`reasonably trustworthy information were
`sufficient to warrant a prudent man in
`believing that the petitioner had committed or
`was committing an offense.
`
`Id.; see also United States v. Lopez, 482 F.3d 1067, 1072 (9th
`Cir. 2007).
`
`
`
`UNITED STATES V. WILLY
`
`11
`
`Deputy Thaxton testified that, even before he found Willy
`at a service station and activated his light bar, he had
`determined that Willy had violated Washington law and that
`he was going to arrest Willy. Since Thaxton himself had not
`observed any suspicious conduct by Willy, the question is
`whether he had probable cause to arrest Willy based only on
`the two reports.
`
`“Articulating precisely what ‘reasonable suspicion’ and
`‘probable cause’ mean
`is not possible.
` They are
`commonsense, nontechnical conceptions that deal with ‘the
`factual and practical considerations of everyday life on which
`reasonable prudent men, not legal technicians, act.’”
`Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S.
`213, 231 (1983)). We do not have “a neat set of legal rules,”
`Gates, 462 U.S. at 232, but must “examine whether the facts
`and circumstances within the officer’s knowledge are
`sufficient to warrant a prudent person to believe a suspect has
`committed, is committing, or is about to commit a crime.”
`United States v. Valencia, 24 F.3d 1106, 1108 (9th Cir. 1994).
`Although we do not have a precise test, “probable cause” is
`a higher standard than the “reasonable suspicion” required to
`conduct a Terry stop and make further inquiries. Kansas v.
`Glover, 140 S. Ct. 1183, 1187 (2020) (“[T]he level of
`suspicion the [Terry stop] standard requires is . . . obviously
`less than is necessary for probable cause.” (quoting Navarette
`v. California, 572 U.S. 393, 397 (2014))).
`
`We thus turn to Washington law to determine whether
`Deputy Thaxton had grounds under § 9.41.270 for arresting
`Willy. See United States v. Bontemps, 977 F.3d 909, 914 (9th
`Cir. 2020), cert. denied, 141 S. Ct. 2874 (2021).
`
`
`
`12
`
`UNITED STATES V. WILLY
`
`A. The Scope of Washington Revised Code § 9.41.270
`
`We begin with important context for Willy’s actions.
`Washington is an open carry state. That means that it is
`presumptively legal to carry a firearm openly. As we recently
`observed in United States v. Brown, 925 F.3d 1150 (9th Cir.
`2019), it is a misdemeanor to carry a concealed pistol without
`a license, but “Washington is a ‘shall issue state,’ meaning
`that local law enforcement must issue a concealed weapons
`license if the applicant meets certain qualifications.” Id. 1154
`(emphasis in original). The bare fact that Willy displayed a
`weapon would not be sufficient to stop Willy, because there
`is no evidence that he was carrying a concealed weapon. The
`reporting parties’ statements that Willy was carrying a gun
`“created at most a very weak inference that he was unlawfully
`carrying the gun [concealed] without a license, and certainly
`not enough to alone support a Terry stop.” Id. Moreover,
`Thaxton acquired no additional reasons for arresting Willy
`until after he stopped him: When Thaxton ordered Willy to
`leave his truck and turn around slowly, Willy was openly
`carrying his pistol, in a holster on his hip.
`
`As we have observed, notwithstanding that Washington
`is an open carry state, it is a gross misdemeanor in
`Washington for a person to “carry, exhibit, display, or draw
`any firearm . . . 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.” Wash. Rev. Code § 9.41.270(1). The Washington
`courts have construed critical terms in the statute, narrowing
`them to preserve the constitutionality of the statute. Two
`cases are of particular note.
`
`
`
`UNITED STATES V. WILLY
`
`13
`
`In the first, State v. Maciolek, 676 P.2d 996 (Wash. 1984),
`the Washington Supreme Court addressed a void-for-
`vagueness challenge to § 9.41.270. Maciolek involved two
`separate convictions under § 9.41.270, consolidated for the
`appeal. In the first case, Maciolek was convicted of violating
`§ 9.41.270 after he became angry when his doctor would not
`renew his prescription for Percodan. Maciolek “deliberately
`pulled back his jacket to reveal a handgun . . . . The doctor,
`alarmed and intimidated by this display, immediately wrote
`out a prescription for Percodan.” Id. at 997. In the second
`case, Johnson was a 13-year old who had an altercation with
`a pair of 9-year olds. He fired his BB gun at them and then
`took one of their bikes. Id. The Washington Supreme Court
`held that the statute was not void for vagueness and upheld
`both convictions.2 The cases challenged the statute on two
`grounds: the vagueness in the phrase “a knife or other cutting
`or stabbing instrument” and in the phrase “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.” Only the latter phrase is in play
`here. The court began with the definition of “intimidate,”
`which it said was “defined very narrowly” as to “inspire or
`affect with fear . . . (as by threats).” Id. at 999 (quoting
`Webster’s Third New Int’l Dictionary 1184 (1961)). In a
`lengthy footnote, the court stated that the phrase “warrants
`
`2 The court also affirmed a third case, in which the defendant was
`seen chasing a woman up the center of the street with a knife. The
`defendant was convicted under a Seattle municipal statute similar to
`§ 9.41.270. Maciolek, 676 P.2d at 997.
`
`
`
`14
`
`UNITED STATES V. WILLY
`
`alarm for the safety of other[s]” was sufficiently qualified by
`other language to “giv[e] the statute a narrow scope”:
`
`If a weapon is displayed in a manner, under
`circumstances and at a time and place so that
`it poses a threat to another person, such a
`display would warrant alarm for the safety of
`another. Thus, narrowly construing the phrase
`to apply to only conduct that poses a threat to
`others gives the phrase a narrow and definite
`focus and saves it from vagueness. Such a
`construction is also consistent with the
`statute’s purpose, which
`is
`to prevent
`someone from displaying dangerous weapons
`so as to reasonably intimidate members of the
`public.
`
`Id. at 1001 n.3 (citations omitted).
`
`The second is a decision of the Washington Court of
`Appeals, State v. Spencer, 876 P.2d 939, 943 (Wash. Ct. App.
`1994), upholding the statute against a challenge under
`Washington’s equivalent of the Second Amendment.3
`Spencer was convicted under § 9.41.270 when he was seen by
`multiple people walking with his dog at night in an urban area
`
`3 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.
`
`Wash. Const. art. 1, § 24.
`
`
`
`UNITED STATES V. WILLY
`
`15
`
`with an AK-47S, with the magazine attached, on his shoulder.
`The responding officer saw Spencer “in ‘a hostile, assaultive
`type manner with the weapon ready.’” Id. at 940. The
`Washington Court of Appeals rejected the constitutional
`challenge. It found that “the statute does not prevent a person
`from carrying weapons in self-defense” and “[i]f there is no
`present threat, weapons must be carried in a manner that does
`not warrant alarm in others.” Id. at 941. The court explained
`that § 9.41.270
`
`only prohibits the carrying or displaying of
`weapons when objective circumstances would
`warrant alarm in a reasonable person. Thus,
`the restriction applies only in a limited
`number of situations. . . . In the vast majority
`of situations, a person of common intelligence
`would be able to ascertain when the carrying
`of a particular weapon would reasonably
`warrant alarm in others.
`
`Id. at 942 (footnote omitted). In a pair of footnotes, the court
`added that “[t]hese circumstances may include, as in
`[Spencer’s] case, the fact that the weapon is being carried in
`a residential neighborhood, the time of day, the urban
`environment, the manner in which the weapon is carried, the
`size and type of weapon, and the fact that the weapon has a
`clip visibly attached. . . . [Spencer’s case] does not fall
`anywhere near a potential ‘grey area’ in the statute.” Id. at
`942 nn.4–5. The court then visited the question raised in
`Maciolek, whether the statute was void for vagueness. The
`Court of Appeals held that the statute had “a sufficiently
`narrow scope.” Id. at 943. It also adopted a lower court’s
`reading that “a reasonable person standard is incorporated
`into the phrase ‘warrants alarm.’” Id.; see id. at 943 n.7
`
`
`
`16
`
`UNITED STATES V. WILLY
`
`(“[T]here must be a sufficient objective basis for the alarm,
`i.e., circumstances must be such that a reasonable person
`would be alarmed.”). “When viewed with these two
`limitations in mind, it is clear that the statute is sufficiently
`definite to (1) provide defendants with adequate notice of
`prohibited conduct and (2) provide adequate enforcement
`standards.” Id. at 943. In Spencer’s case, the court repeated,
`“[a]ny reasonable person would feel alarmed upon seeing, on
`a residential street at night, a man carrying a visibly loaded
`AK-47 assault rifle in an assaultive manner. . . . [A] person of
`common intelligence would realize that carrying an assault
`rifle under such circumstances and in such a manner would
`warrant alarm in others.” Id. at 943–44.
`
`If we consider Maciolek and Spencer together, what
`emerges is a workable standard for judges and juries to
`evaluate: The act must warrant alarm in a reasonable person
`for the safety of others. Maciolek, 676 P.2d at 1001 n.3;
`Spencer, 876 P.2d at 943 & n.7. A broader construction,
`Washington courts have suggested, might well run afoul of
`void-for-vagueness principles or
`the right under
`the
`Washington Constitution “to bear arms in defense of
`himself.”
`
`The dissent insists on reading the phrase “warrants alarm
`for the safety of other persons” in isolation. Dissenting Op.
`at 34. This approach expands § 9.41.270(1) beyond its
`intended scope. As the Washington courts have explained,
`“narrowly construing the phrase [‘warrants alarm for the
`safety of other[s]’] to apply to only conduct that poses a
`threat to others gives the phrase a narrow and definite focus
`and saves it from vagueness” and is consistent with the
`statute’s purpose. Maciolek, 676 P.2d at 1001 n.3. Although
`Willy’s conduct could only arguably violate the “warrants
`
`
`
`UNITED STATES V. WILLY
`
`17
`
`alarm” portion of the statute, the rest of the statute is not
`irrelevant—it gives us the proper context and respects
`Washington’s decision to interpret § 9.41.270(1) to avoid
`constitutional problems. The preceding phrase, “manifests an
`intent to intimidate another,” indicates that the Washington
`legislature did not intend “warrants alarm for the safety of
`other persons” to apply broadly to all conduct that might raise
`concern—a reading that swallows the first portion of the
`statute.4 Rather, the “warrants alarm” portion is best read as
`capturing the scenarios where someone is not directly
`threatening a person who is present, but is handling their
`firearm in such a way that it presents a danger to others. See
`State v. Workman, 584 P.2d 382, 386 (Wash. 1978) (holding
`that even though no one saw the firearm, the defendants
`handling of a gun while attempting to commit attempted
`armed robbery “warrant[ed] alarm for the safety of anyone
`who may chance to be nearby”). We choose to take the
`Washington courts’ lead and read “warrants alarm” to refer
`to conduct that a reasonable person would believe poses a
`threat to themselves or other persons.
`
`We have reviewed Washington cases involving charges
`or convictions under § 9.41.270. These cases have addressed
`a variety of circumstances, but all have involved palpable
`threats with a weapon and did not approach what the Spencer
`court termed “a potential ‘grey area’ in the statute.” Spencer,
`876 P.2d at 942 n.5. For example, in State v. Baggett,
`
`4 Indeed, under the dissent’s expansive reading, it is hard to imagine
`conduct that would “manifest[] an intent to intimidate” without also
`“warrant[ing] alarm for the safety of other persons.” Dissenting Op.
`42–44. We must avoid rendering the first prohibition superfluous. See
`Rivard v. State, 231 P.3d 186, 190 (Wash. 2010). Instead, we should
`assume that the second portion of the statute attempts to capture related
`but not overlapping conduct.
`
`
`
`18
`
`UNITED STATES V. WILLY
`
`13 P.3d 659 (Wash. Ct. App. 2000), a police officer saw
`Baggett leaning out of the passenger window of a parked car
`with a rifle, evidently about to shoot a cat on the side of the
`road. When Baggett saw the patrol car, he ordered his wife
`to drive away, but she stopped when the officer activated his
`siren. The officer instructed Baggett to drop his rifle, and
`Baggett pointed the rifle at the officer. The Washington
`Court of Appeals had no difficulty concluding that “[t]he
`manner in which he held the rifle warranted alarm for the
`safety of [the officer].” Id. at 662.
`
`In State v. Glenn, 166 P.3d 1235 (Wash. Ct. App. 2007),
`a seven-year old boy reported that a man in a passing car had
`pointed a gun at him. His mother called 911 with the license
`plate of a car matching the boy’s description. As the officers
`interviewed the boy, the car passed by and the boy again
`identified the car. The officers conducted a high-risk stop.
`The driver, Glenn, was ordered out of the car, handcuffed,
`and read his Miranda rights. The officers found $1,100 on
`Glenn and marijuana in his car; they never found a gun. The
`Washington Court of Appeals nevertheless upheld Glenn’s
`conviction on the marijuana charge. The court held that the
`officers had “received a legitimate citizen’s report that a
`driver had pointed a gun from his vehicle . . . . Pointing a gun
`at a victim is serious criminal conduct.” Id. at 1239.
`
`Other cases are consistent with these principles. See State
`v. Evans, 179 Wash. App. 1015 (2014) (upholding a search
`based on a 911 complaint that a man was “waving a gun at
`her daughter”); State v. Hoston, 175 Wash. App. 1073 (2013)
`(upholding a search based on a report by three men in an area
`known for gang activity who saw a man flash a handgun and
`then put it in his waistband in the context of a “rolling fight”);
`State v. Owens, 324 P.3d 757, 759 (Wash. Ct. App. 2014)
`
`
`
`UNITED STATES V. WILLY
`
`19
`
`(upholding a § 9.41.270 conviction when after a verbal
`altercation which prompted a 911 call, Owens advised that he
`was going to get his gun since the cops were coming, ignored
`officers’ orders, and continued approaching with a rifle);
`State v. Smith, 93 P.3d 877, 878 (Wash. Ct. App. 2003)
`(upholding § 9.41.270 conviction where Smith threatened,
`“I’m going to get my 45, and we’ll take care of business,”
`before returning and swinging his gun in the air, threatening
`with a pipe, and throwing a hammer); State v. M.T., 97 Wash.
`App. 1067, at *3 (1999) (upholding a conviction based on a
`seven-year old’s report that a man had approached her with
`a closed pocketknife which he thrust in the air; she had
`previously seen the man “pierce his own hand with the
`knife”; and “a reasonable person would be intimidated by
`M.T.’s display of the knife, even though the knife was
`closed”); see also United States v. Caraang, 2018 WL
`2216103, at *1–3 (W.D. Wash. 2018) (holding that an officer
`had reasonable suspicion to stop Caraang where he was
`reported to have waved a gun in a bar parking lot in the
`presence of five to ten people, racked the slide, and yelled
`“anybody want some?”); Hill v. Ramsdell, 2016 WL 1304847
`(W.D. Wash. 2016) (holding that police had probable cause
`to arrest Hill on § 9.41.270 charges when he attended a city
`council meeting wearing what appeared to be brass knuckles);
`State v. Mitchell, 906 P.2d 1013 (Wash. Ct. App. 1995)
`(holding that an officer had reasonable suspicion to stop
`Mitchell when he was carrying a semi-automatic weapon in
`an urban, residential area at night, he tucked the gun in his
`waistband when he saw the officer, and tossed the gun when
`the officer ordered him to put his hands up).5
`
`5 The dissent argues that Mitchell cannot be squared with our reading
`of § 9.41.270. Dissenting Op. at 43–44. First, we note that the Mitchell
`court only determined that the officers had reasonable suspicion to
`
`
`
`20
`
`UNITED STATES V. WILLY
`
`Just as important to our analysis, Washington courts have
`refused to enforce § 9.41.270 when the threats are not
`sufficiently direct or imminent. For example, in State v.
`Cardenas-Muratalla, 319 P.3d 811 (Wash. Ct. App. 2014),
`police received a 911 call reporting a man with a gun in a
`high crime area of downtown Seattle. Police saw a man
`answering
`the description—Cardenas-Muratalla—and
`thought that he “fluffed” his sweatshirt when he saw the
`approaching patrol car. When Cardenas-Muratalla did not
`stop in response to the officers’ instructions, the officers tased
`and shot him. Cardenas-Muratalla was carrying an unloaded
`pistol in his waistband. The Washington Superior Court
`refused to suppress the evidence of the gun, but the
`Washington Court of Appeals reversed. The court held that
`the 911 call had not reported any criminal activity: “Carrying
`a firearm is a crime if it is carried or displayed in a manner
`that either manifests an intent to intimidate another or that
`warrants alarm for the safety of other persons.” Id. at 816
`(footnote omitted; citing § 9.41.270). In Cardenas-
`Muratalla, “[t]here [was] no evidence in the record that the
`911 caller reported being intimidated or alarmed when the
`suspect showed him the gun or that the suspect discharged the
`
`conduct a Terry stop based on § 9.41.270. 906 P.2d at 1016. Mitchell
`was arrested for being a minor in possession of a handgun only after the
`officers learned of his identity and criminal record. Id. at 1015. Second,
`when officers passe
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