Seattle Attorneys Blog
The Fifth Amendment to the U.S. Constitution and article 1, section 9 of the Washington State Constitution both protect an individual’s right against self-incrimination. A person may, however, be compelled to answer if they are protected from the use of their answers and evidence derived from them in any subsequent criminal case against them. State v. King. A former husband recently challenged the constitutionality of the Washington weapons surrender statute under the Fifth amendment and other constitutional protections after a court found him to be non-compliant with a weapons surrender order.
The parties divorced in April 2022. The trial court issued a temporary domestic violence protection order (“DVPO”) requiring the ex-husband to surrender his firearms after the divorce. The ex-husband and his friend claimed his firearms were being stored at the friend’s house.
The ex-wife identified several additional weapons the ex-husband owned during the marriage in her declaration. The court issued a DVPO for one year and a new surrender order that listed the firearms identified in the ex-wife’s declaration.
The husband surrendered his concealed pistol license. The friend surrendered the firearms in his possession. The trial court, however, found the ex-husband had not complied the surrender order based on 13 unaccounted-for firearms.
The trial court found the ex-husband in contempt. He surrendered three more guns that he claimed were actually his grandfather’s and had not been in his possession since the previous January.
The court held a compliance hearing and the ex-husband asked it to find the weapons surrender statute unconstitutional. The court ultimately found him in noncompliance and denied his motion to declare the statute unconstitutional.
Immunity
The ex-husband appealed, arguing the court’s order violated his right against self-incrimination.
RCW 9.41.801(9)(a) provides that voluntarily surrendering weapons, testifying related to the surrender, or complying with a weapons surrender order “issued pursuant to RCW 9.41.800 or 10.99.100,” may not be used against the person in any criminal prosecution under chapter 9.41 RCW, chapter 7.105 RCW, RCW 9A.56.310, or any criminal prosecution pursuant to which the surrender order was issued, except for perjury, giving a false statement, or failing to comply.
The husband argued the statute did not provide immunity for his surrender order. He argued RCW 9.41.801(9) did not list orders pursuant to chapter 7.105 RCW and chapter 26.09 RCW. The appeals court noted, however, that RCW 9.41.801(9) specifically includes orders issued under RCW 9.41.800, and that statute includes orders entered pursuant to both chapter 7.105 RCW and chapter 26.09 RCW. The ex-husband’s DVPO pursuant to 7.105 RCW was therefore covered by the immunity provision.
The ex-husband also argued the statute did not provide “blanket immunity.” RCW 9.41.801(9)(c), however, provides that the court will give the prosecutor the opportunity to offer a specifically-tailored immunity agreement when there is a realistic threat of self-incrimination that is not covered by the immunity in subsection (9)(c). Under subsection 9(d), if the prosecutor decides not to grant further immunity in such circumstances, the person can only be ordered to surrender the weapons that would not be self-incriminating.
The ex-husband argued that RCW 9.41.801(9)(b) was unconstitutional because it gave the court discretion to determine if the person has shown that there is a realistic threat of self-incrimination and the party must meet certain conditions to obtain immunity.
The appeals court noted that a court’s discretion to determine if a party has shown there is a realistic threat of self-incrimination is “not only appropriate, it is required.” The appeals court also pointed out that the discretionary language in subsection (9)(b) only applies in circumstances where subsection (9)(a) does not cover the privilege, but the ex-husband’s order was covered under subsection (9)(a).
The appeals court concluded the ex-husband therefore had immunity from prosecution related to the surrender and any testimony associated with surrendering the firearms and complying with the order.
Search and Seizure
The ex-husband also argued the statute violated his right against unreasonable search and seizure pursuant to the Fourth Amendment to the U.S. Constitution and article 1, section 7 of the Washington State Constitution. He argued the order made him an unwilling instrumentality of the state.
The appeals court rejected this argument, concluding a weapons surrender order “is not the type of search” protected by the Fourth Amendment or article 1, section 7. The government had not trespassed into his private affairs and there was no state action, so there was no “search and seizure” that violated his rights under either the Fourth Amendment or article 1, section 7. The appeals court concluded the ex-husband’s right against unreasonable searches and seizures was not violated by the order.
Second Amendment
The ex-husband also argued the statute violated his rights under the Second Amendment. The Supreme Court recently held, however, that a law that prohibited a person subject to a domestic violence restraining order from possessing a gun did not violate the Second Amendment in United States v. Rahimi.
The appeals court held the statute is constitutional and affirmed the court’s order.
Seek Legal Advice
Whether you are seeking or opposing a domestic violence protection order or other form of protection order, a skilled Washington civil protection order attorney can help. Blair & Kim, PLLC, is also experienced in family law and criminal defense, so we are also positioned to assist with any related criminal or family law matters. Set up a consultation by calling us at (206) 622-6562.