Constitutional Rights in Washington State vs. U.S. Constitution

1. Constitutional Rights under the Washington State and U.S. Constitutions

2. http://leg.wa.gov/LawsAndAgencyRules/Pages/constitution.aspx Link: Washington Constitution

3. VS Introduction

4. As you discovered already, some rights in the Washington Constitution have different language than in the U.S. Constitution, and sometimes they have the same language. Even when similar language is used, sometimes the rights are interpreted to be different.

5. If a person claims their rights are violated under both the state and federal constitution, the State Supreme Court will decide the case first under the State Constitution. (Remember that most rights protected by the U.S. Constitution have been incorporated to apply to the states through the Fourteenth Amendment.)

6. Whenever a person claims violation of a state constitutional right, the first question the State Supreme Court will ask is whether the right should be interpreted the same way as the U.S. Constitution. The court considers six factors: The actual language of the state constitutional right A comparison of the texts of the parallel state and federal constitutional rights History of the two rights Preexisting state law Structural differences between the federal and state constitutions Whether the matter is of state interest or local concern

7. Some of the Washington State Constitutional rights that are different from their federal counterparts include free speech, free exercise of religion, and privacy rights. For example, look at free speech…

8. State Constitution, Article 1, Section 5: Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. U.S. Constitution First Amendment: Congress shall make no law … abridging the freedom of speech.

9. Would you think based on what you see that the state and federal rights mean the same thing? The State Supreme Court says that the state right should be given its own interpretation, after exploring the six factors above.

10. Applications to Cases

11. A public library with 28 regional libraries installed a filter on its computers that prevents all users from going to certain websites, even though some of the blocked content could be accessed legally by adults. Users of the library can ask that particular websites be unblocked, if they were erroneously blocked. Otherwise, the library will not unblock sites that fall within the list of filtered sites. Users of the library sue. • Which right do they claim is violated? Free speech, from State Constitution Article 1, Section 5. Also, U.S. Constitutional 1st Amendment right to free speech. 1. Blocked Websites

12. A public library with 28 regional libraries installed a filter on its computers that prevents all users from going to certain websites, even though some of the blocked content could be accessed legally by adults. Users of the library can ask that particular websites be unblocked, if they were erroneously blocked. Otherwise, the library will not unblock sites that fall within the list of filtered sites. Users of the library sue. • Will the state right be interpreted differently from the federal right? 1. Blocked Websites Yes, the state right is generally seen as more protective of free speech.

13. A public library with 28 regional libraries installed a filter on its computers that prevents all users from going to certain websites, even though some of the blocked content could be accessed legally by adults. Users of the library can ask that particular websites be unblocked, if they were erroneously blocked. Otherwise, the library will not unblock sites that fall within the list of filtered sites. Users of the library sue. • Will the library users win? No, libraries may choose to limit access to content through well-defined filters. Libraries exercise discretion when making selections of the materials for the library. 1. Blocked Websites

14. Daniel was stopped by the police in Spokane for having a broken tail light. His driver’s license was expired. The officer searched Daniel and found illegal drugs. The officer arrested him and took him to jail. • What constitutional rights would Daniel claim were violated? Daniel would claim both the state constitutional right under Article 1, Section 7 and the 4th Amendment. 2. Tail Light Stop

15. Daniel was stopped by the police in Spokane for having a broken tail light. His driver’s license was expired. The officer searched Daniel and found illegal drugs. The officer arrested him and took him to jail. • Would Daniel win? Daniel would win under State Constitution Article 1, Section 7, as a matter of policy, a custodial arrest for a minor traffic violation is unjustified and impermissible if the defendant has signed a written promise to appear in court. Since the arrest was unlawful, the resulting search was unlawful. Had he been stopped by federal officers, would this be a valid arrest? Under the US Constitution’s 4th Amendment, this would be a lawful arrest. So if this had happened in a national park or other federal lands, the arrest would be lawful. Washington grants greater protection. 2. Tail Light Stop

16. After an anonymous tip that Brad was selling illegal drugs from his home, the police observed Brad put his trash on the corner for pick-up and place a piece of heavy wood on top. The police retrieved the trash and brought it to the station three different times and found evidence of drug distribution. Brad claims these searches were illegal. • What right under each constitution would be involved? Washington Constitution Art. 1, Section 7 and the U.S. Constitution Fourth Amendment. 3. Trash Can Search

17. After an anonymous tip that Brad was selling illegal drugs from his home, the police observed Brad put his trash on the corner for pick-up and place a piece of heavy wood on top. The police retrieved the trash and brought it to the station three different times and found evidence of drug distribution. Brad claims these searches were illegal. • Would Brad win? Yes. Article 1, Section 7 protects Brad’s privacy interest in his trash until it’s mixed in with other trash, so the search would be unlawful. Under the Fourth Amendment of the US Constitution, the search is lawful. Washington Constitution grants greater protection. 3. Trash Can Search

18. A church agreed to host a tent city for the homeless on its property and applied to the city for a temporary permit. The city had a one-year moratorium on issuing temporary permits and turned down the Church’s request. What rights would the church claim are violated? Washington State Constitution Article 1, Section 11 and the First Amendment to the U.S. Constitution. 4. Permit Denied

19. A church agreed to host a tent city for the homeless on its property and applied to the city for a temporary permit. The city had a one-year moratorium on issuing temporary permits and turned down the Church’s request. Would the church win? Yes. The total moratorium placed a substantial burden on the church members’ exercise of their religion, preventing the church from even applying for a permit. Violation of the First Amendment, under which they would likely not win because the restriction on religious exercise would be seen as neutral and related to a reasonable state purpose. 4. Permit Denied

20. Roy was charged with assault in the first degree for shooting another man. The judge found that there was probable cause to believe that he committed the crime and released him on bond. The prosecutor asked the court to impose a condition that Roy give up his guns as required by state law. Washington law does not allow people to have firearms when they are released on bond after a judge has found probable cause to believe that they have committed a serious crime. While he was out on bond, police were called to a gunshot report and found Roy outside his car, with a rifle and handgun clearly visible in his car. He was arrested and convicted for unlawful possession of a firearm. 5. Possession of a Firearm

21. Roy claims that the state law banning possession of a firearm by someone out on bond in a serious case is unconstitutional. Which rights is he referring to? State Constitution Article I, Section 24 and the Second Amendment of the U.S. Constitution. Will Roy win? No. The Court said public safety justifies temporarily limiting that person's right to possess arms under the state constitution. The Washington right to bear arms is interpreted separately from the Second Amendment. This law is still constitutional under the Second Amendment as it serves an important purpose in restricting potentially dangerous people from using firearms. 5. Possession of a Firearm