Assault
Washington Supreme Court
Second Amendment – Under the Second Amendment, the temporary firearm prohibition for recidivist drunk drivers in RCW 9.41.040(2)(a)(i)(D) is constitutional without an individualized assessment of the defendant’s dangerousness. The statute is consistent with the nation’s historical tradition of disarming groups of people presenting a special danger of misuse. Holloway v. Brown, No. 103799-6 (Jun. 11, 2026)
Jury Instructions – Potentially misleading jury instructions are not reversible error unless they are prejudicial. Prejudice is presumed if the jury instruction clearly misstates the law but not if the instruction is only potentially misleading. Verduzco v. King County, No. 103749-0 (Jun. 11, 2026)
Division II
Sexual Exploitation of a Minor – Exposing one’s breast while another person watches is an “exhibition” and therefore is a “live performance” that constitutes sexual exploitation of a minor under RCW 9.68A.040(1)(b). “Live performance” means “any play, show, skit, dance, or other exhibition performed … to … an audience of one or more, with or without consideration.” RCW 9.68A.011(4). Here, the defendant caused a minor to expose her breast to him on several occasions. The court applied ejusdem generis and held that this activity was “similar enough in nature” to the specifically listed activities “any play, show, skit, dance …” to fall within the general catch-all phrase “or other exhibition” in RCW 9.68A.011(4). The definitions in RCW 9.68A.011 should be “used with a measure of flexibility.” State v. Moss, No. 60520-1-II (Jun. 9, 2026, published in part)
Judicial Impartiality – A trial court violates its duty to be impartial and abuses its discretion by repeatedly advocating for one side. Here, the trial court advocated for the defendant by interrogating the investigating officer outside the presence of the jury, and steering defense counsel into a discussion about whether the officer gave pretextual reasons for the vehicle stop. The jury found the defendant guilty of Assault in the 3rd Degree for punching the officer in the nose. However, the trial court then dismissed the case for government misconduct under CrR 8.3(b). The trial court based the dismissal on its finding that the officer “lied” about why he stopped the vehicle, and that the State failed to correct the lie in front of the jury. Substantial evidence did not support the trial court’s finding that the officer lied. The trial court violated the state’s right to a fair trial. The court of appeals reversed the dismissal, reinstated the jury’s verdict, and remanded the case for sentencing. State v. Rutledge, No. 59684-9-II (Jun. 9, 2026, Unpublished)
Washington Supreme Court
GR 37 – GR 37 prohibits peremptory strikes if an objective observer could view the potential juror’s race as a factor in the peremptory strike. GR 37 does not target discrimination against the potential juror’s gender identity. The court provided several other bright line rules. For example, if the state provides a “demeanor based” reason for a peremptory strike, then the state must follow the procedures in GR 37(i). Otherwise, the appeals court cannot consider the “demeanor based” reason. If the state provides a “presumptively invalid” reason for the peremptory strike, from the list in GR 37(h), then there is a presumption that an objective observer could view race as a factor in the use of the peremptory challenge. However, that presumption may be rebutted. Here, an objective observer could not view race as a factor in the peremptory strike based on the totality of the circumstances. The stricken juror was white, and the defendant was black. That does not mean striking a white juror will never violate GR 37 since GR 37 is race neutral. The juror viewed the legal system as unjust for people of color. However, some jurors who expressed similar views were seated and some were stricken. The juror had strong political views and would not discuss their views about firearms in front of the group. Concerns about a juror’s ability to participate in deliberations is a legitimate reason for a peremptory challenge. There were no red flags and no evidence of discriminatory effect based on race. State v. Hogan, No. 103824-1 (Jun. 4, 2026)
Division I
State Environmental Policy Act (SEPA) – Recently enacted “appeal prohibition statutes” such as RCW 36.70A.600(3), that prohibit appeals of local planning department actions that increase housing, do not bar administrative appeals of a Final Environmental Impact Statement when, as here, SEPA and the local agency’s code allow it. WAC 197-11-680(3)(a)(iii), and SMC 25.05.680. Friends of Ravena-Cowen v. City of Seattle, No. 88217-1-I (consolidated with No. 88252-0-I) (June 1, 2026)
Torts – The “special relationship” exception to the public duty doctrine allows a negligence action to proceed against a public agency when three elements are met: 1) direct contact or privity between the injured person and a government official that sets the injured person apart from the general public, 2) express assurances given by the public official, and 3) reasonable reliance by the injured person on the official’s assurances. Here, all three elements were met where a hotel security guard called the police to report what sounded like a murder in progress in one of the hotel rooms, and where the guard relied on assurances that help was on the way. The decedent’s estate sued the government call center for negligently classifying the call as a lower priority and causing a delayed response. The case could proceed based on the “special relationship” exception notwithstanding that the caller was not the injured person. Bartlett v. Valley Communications Center, No. 87600-7-I (June 1, 2026)
Division II
Land Use – A LUPA petitioner has the burden of demonstrating that the hearing examiner erred. Here, the LUPA petitioner failed to provide sufficient evidence to support its arguments that 1) the subject property was partially owned by someone other than the applicant, or 2) that the proposal violated the county’s density requirements. Spanaway Concerned Citizens v. Pierce County, No. 60984-3-II (Jun. 2, 2026)
(Editor’s note: The concurrence argued that the hearing examiner lacked authority to conduct a title examination beyond confirming that the land use application contained an attestation of ownership. And argued further that litigating title before a hearing examiner, which is not a court of law, could cloud the title.)
Washington Supreme Court
Double jeopardy – The flexible plea bargaining framework recognized in Barr and Zhao empowers defendants charged with a single assault to plead to multiple, lesser assaults when the state agrees to it, and when the defendant decides that the agreement is in their best interest. Multiple assault convictions do not violate double jeopardy if the plea is voluntary and knowing, there is a factual basis for the original charge, and the assault convictions are based on separate and distinct conduct. A defendant’s admission that the assault convictions are based on separate and distinct conduct is part of the record that courts must consider. In re Pers. Restraint of Bin-Bellah, No. 103569-1 (Apr. 9, 2026)
Division II
Assault in the first degree – A person commits assault, under the “attempted battery” definition of assault, by attempting with unlawful force to inflict bodily injury upon another but failing to accomplish it. Here, the defendant attempted to inflict bodily injury on the driver and front passenger of an SUV by firing gunshots into the SUV. Therefore, the defendant committed first degree assault as to all five occupants of the SUV regardless of whether the defendant knew that the other three occupants were present in the SUV, and regardless that there was no evidence that the two child passengers were harmed or place in apprehension of harm. State v. Sanchez-Radilla, No. 59912-1-II (Apr. 17, 2026, published in part)