ATTORNEY GENERAL OF WASHINGTON

CRIMES -- FIREARMS

     It is not unlawful under RCW 9.41.250 to merely possess a
device for suppressing the noise of a firearm.

                         August 30, 1988

Honorable Kent Pullen                             Cite as:
State Senator, 47th District                      AGO 1988 No. 16
Institutions Building
Olympia, Washington 98504

Dear Senator Pullen:

     By letter previously acknowledged, you have asked for our
opinion on a question we have paraphrased as follows:

     Is it unlawful under RCW 9.41.250 to possess a device for
     suppressing the noise of a firearm?

     We answer your question in the negative for the reasons set
forth in our analysis.

                            ANALYSIS

     RCW 9.41.250, the provision about which you have inquired,
provides:

     Every person who shall manufacture, sell or dispose of or have
     in his possession any instrument or weapon of the kind usually
     known as slung shot, sand club, or metal knuckles, or spring
     blade knife, or any knife the blade of which is automatically
     released by a spring mechanism or other mechanical device, or
     any knife having a blade which opens, or falls, or is ejected
     into position by the force of gravity, or by an outward,
     downward, or centrifugal thrust or movement; who shall
     furtively carry with intent to conceal any dagger, dirk,
     pistol or other dangerous weapon; or who shall use any
     contrivance or device for suppressing the noise of any
     firearm, shall be guilty of a gross misdemeanor.

(Emphasis added.)

Hon. Kent Pullen                2                 AGO 1988 No. 16


     In essence, your question is concerned with whether the term
"use" in the underscored language of RCW 9.41.250 includes mere
possession of a noise suppression device.  Absent a statutory
definition, words in a statute are to be given their ordinary
meaning.  Davis v. Department of Empl. Sec., 108 Wn.2d 272, 737
P.2d 1262 (1987).  The ordinary meaning of the term "use" is to put
a thing into service or action.  Webster's Third New International
Dictionary, 2523-2524 (1981).  Thus, the use of a device for
suppressing the noise of a firearm contemplates employing that
device or putting it into service.  Although use of such a device
may be incident to possession, use is quite different from simply
possessing the device or exercising control over it.

     In our opinion, the language of RCW 9.41.250 about which you
have inquired is unambiguous.  It does not prohibit mere possession
of a device to suppress the noise of a firearm.

     Even if the term "use" in RCW 9.41.250 were ambiguous, rules
of statutory construction would dictate against interpreting the
term to include mere possession.  First, RCW 9.41.250 is a criminal
statute.  Where two reasonable constructions of a criminal statute
are possible, a court is required to adopt the interpretation most
favorable to a person accused of violating the statute.  State v.
Gore, 101 Wn.2d 481, 681 P.2d 227 (1984).  Here, of course, that
would be an interpretation excluding mere possession.  Second,
where the Legislature employs certain language in one part of a
statute and different language in another part, a difference in
legislative intent is indicated.  United Parcel Serv., Inc. v.
Department of Rev., 102 Wn.2d 355, 687 P.2d 186 (1984).  The
Legislature has employed the term "possession" in RCW 9.41.250 and
thereby has made mere possession of certain weapons a misdemeanor. 
The Legislature did not employ that same term with reference to
noise suppression devices.  According to this rule of construction,
the Legislature's failure to do so indicates that it did not intend
"use" to include mere possession.

     We trust that the foregoing will be of assistance to you,

                           Sincerely,

                      KENNETH O. EIKENBERRY
                        Attorney General

                            [signed]
                          Maureen Hart
jf               Sr. Assistant Attorney General