Seattle Attorneys Blog
A court issuing a Washington domestic violence protection order (“DVPO”) must also order the surrender of firearms, dangerous weapons, and concealed pistol licenses. The restrained person must file a proof of surrender and receipt or a declaration of nonsurrender within five days. RCW 9.41.804. The restrained person must prove by a preponderance of the evidence that they have surrendered all dangerous weapons. A petitioner recently appealed a court’s finding the respondent was in compliance with the order to surrender.
According to the appeals court’s unpublished opinion, the petitioner testified the respondent became violent and controlling during their relationship. She said he had threatened to shoot up her friend’s house if she did not come out and then forced her into the car at gunpoint. She testified he took her to a deserted parking lot and ripped her shirt off, pulled her hair, and strangled her, while pointing a gun at her. She alleged he sent her photos of himself holding guns and photos of guns along with threatening text messages.
She petitioned for an order of protection. Although initially denied, she was granted a second hearing due to procedural issues. The petitioner testified and presented declarations from her mother and a witness. She presented evidence of threatening photographs of firearms the respondent sent her. The appeals court noted there were five firearms shown in the pictures, which were all taken either in the respondent’s room or his mother’s car.
The trial court granted the petition and entered a five-year protection order. The trial court also ordered the respondent to surrender any dangerous weapon in his possession. He surrendered a pump shotgun.
At the first compliance hearing in December 2021, the respondent testified that the “AR-15” from the photos was actually an airsoft gun, the wood-handled handgun in the photos was just a pellet gun, and the other two handguns were not his. He would not, however, provide the name of the owner of the weapons when asked by the court. The petitioner testified she had seen the respondent with at least one handgun when no one else was there.
The court indicated it did not believe the handguns were not the respondent’s, but that it could believe him if he provided “information from someone else saying that they’re theirs.” The court ordered him to provide declarations from the handguns’ owners that the handguns did not belong to the respondent and they were aware of the order not to possess firearms and would not allow him to access them. The court also ordered him to provide documentation showing the AR-15 and the wood-handled handgun were not real firearms. He was ordered to provide this evidence before the next compliance hearing.
The respondent did not file anything before the next hearing, which was with a different judge. He refused to file the names of the alleged owners. He said he could not find the pellet gun. The court continued the hearing for another week to let him submit the documentation, but told him that the December 15 order was still in effect.
On January 27, 2022, the respondent testified he “tried to comply” but had a falling out and no longer had contact with the guns’ owners. He continued to refuse to provide their names. He denied having possession of the guns. The trial court accepted the respondent’s claim that the AR-15 and wood-handled handgun were not firearms, but still found they were dangerous weapons and needed to be surrendered.
The court found the respondent was not in compliance with the surrender order. The order required him to surrender both pellet guns and file a declaration accounting for the other two handguns. The order also stated the respondent could be held in contempt if he did not comply immediately and scheduled a contempt hearing for February 10, 2022.
The morning of the hearing, the respondent filed a “Proof of Surrender,” stating he had “surrendered all: firearms [and]dangerous weapons . . .” He also submitted a “Receipt . . .,” stating the “AR-15 BB gun” had been surrendered to a Seattle police officer, but it had not been signed by law enforcement. He filed a declaration after the hearing was scheduled to start, stating he did own or have access to the weapons he was “accused of possessing.” He testified he could not “access any type of firearm.”
The court found the respondent proved he was in compliance by a preponderance of the evidence. It denied the petitioner’s motion for reconsideration. It acknowledged the judge in the prior compliance hearing did not find the respondent’s explanation about the handguns credible, it reached a different conclusion and found him credible. The petitioner appealed.
The petitioner argued substantial evidence did not support the court’s finding of compliance.
The appeals court concluded the respondent failed to meet the burden of showing he was in compliance. The court had ordered him to file a declaration accounting for the other two handguns, but he failed to do so. The appeals court concluded that his “generic declaration” regarding the weapons he was “accused of possession” was not sufficient to account for the handguns or to show his compliance. The appeals court further concluded his testimony did not account for the two handguns either. He said they belonged to someone he was not in contact with, but he did not identify that person. The appeals court pointed out he had not provided any evidence beyond what the court had previously told him was insufficient. The court’s finding he was in compliance was therefore not supported by substantial evidence.
The appeals court also concluded the court erred in relying on the state’s failure to seek a search warrant in considering whether the respondent proved compliance with the order to surrender. Pursuant to RCW 9.41.801(4), however, the court is responsible for determining if probable cause exists and issuing a search warrant. Neither the state nor the petitioner is required to petition for a search warrant. It was therefore error for the court to consider the state’s failure to seek a search warrant as evidence of the respondent’s compliance.
The appeals court reversed the order and remanded to the superior court.
An order to surrender is an important protection for individuals who have experienced domestic violence. It can sometimes be difficult to ensure the restrained person has actually surrendered all dangerous weapons. In this case, photographs helped identify weapons to which the respondent may have had access, but such evidence is not always available. Whether you are seeking or opposing a protection order or an order to surrender, contact the Washington civil protection order attorneys at Blair & Kim, PLLC. With our experience in family law and criminal defense, we also have the skills and knowledge to assist in related cases.