In certain circumstances, Washington courts ordering domestic violence protection orders must also order the restrained person to surrender his or her firearms, other dangerous weapons, and concealed pistol licenses (CPL). RCW 9.41.800. There is a standard order that courts may use. The standard order requires the restrained person to immediately surrender the weapons and CPL, get a receipt for the items surrendered, complete a proof of surrender form, and file all of the documents within five days.
In one case, a wife questioned whether the husband had truly surrendered all of his firearms after being ordered to do so. After separating from her husband and moving to Washington, the wife sought a domestic violence protection order, alleging, in part, he had threatened to shoot her. The commissioner issued the order, but found a lack of personal jurisdiction over the husband prevented her from ordering a weapons surrender.
The wife moved for revision of the order. At the hearing, the husband said no firearms were in his possession because his relatives had them. He requested a continuance. The court granted the continuance, but entered a temporary order requiring him to turn over his weapons and any CPL. The husband subsequently filed a proof of surrender form with a receipt from the sheriff’s office showing he had surrendered three guns.
The court approved an agreed order requiring the husband to surrender all firearms in either the county where he lived or the county where his mother lived.
The wife later filed a declaration saying the husband had stored his guns at an armory, with a 2014 inventory list from the armory attached. The inventory identified 34 guns, including the three that had been surrendered. The husband’s attorney stated the sheriffs would not accept the weapons and asked the court to allow the guns to be stored in a third party’s safe. The wife objected and asked the court to refer the matter for contempt proceedings. The husband argued he had made good faith efforts to surrender the weapons and asked the court to amend the order to allow him to turn them over in Washington. The court amended the order as requested. The court found he was not in compliance, but did not refer it to the prosecutor.
The wife moved for a contempt hearing and asked the court to require the husband to account for all of the guns on the inventory list. She also asked for the opportunity to cross examine him at the upcoming hearing.
The husband filed a declaration detailing his efforts to comply. He also declared all firearms listed in the inventory had been surrendered except one that belonged to someone else. The attached receipt listed 32 guns.
At the next hearing, the husband’s attorney said he had turned over all of the guns, but the wife’s attorney pointed out there were two guns on the inventory list still unaccounted for. The court found the husband was in compliance with the order, noting he made “substantial efforts” to surrender the guns and there was not any evidence that the 2014 inventory was still accurate.
The wife appealed. She argued the husband had the burden to prove he had surrendered all his weapons. The husband argued he had filed the required documents declaring he surrendered his weapons, so the burden was on the wife to prove the declaration false. The appeals court found that, although the statute does not specifically state who has the burden of proof, it indicates the restrained person has the burden to prove they have surrendered their weapons. The statute places the burden on the restrained person by requiring them to file evidence of compliance. The appeals court further found, however, that the statutes do not indicate the surrender form is conclusive evidence the restrained party has complied.
RCW 9.41.800 reflects a public interest in keeping persons restrained by certain domestic violence protection orders from possessing dangerous weapons. To comply with the statute, the person not only has to file the form, but must also surrender all of his weapons.
The appeals court found that the restrained party has the burden to prove compliance with the order and that the proof of surrender form and receipt are prima facie evidence of compliance. The court must weigh any conflicting evidence and determine if the burden of proof has been met.
In this case, the wife argued the court improperly considered the “substantial efforts” the husband had made. The appeals court found that effort to surrender the weapons was not relevant to the issue of whether he had actually surrendered them.
The wife also argued there was not evidence supporting the finding the husband surrendered all his weapons. The appeals court noted the husband’s declaration stated he had surrendered all of the guns on the inventory list except one that belonged to someone else, but the receipts did not include two of the guns on the list. The appeals court found the evidence did not support a finding the husband surrendered all his weapons and remanded to the trial court to rule on the contempt order.
This case shows that proof of surrender forms are not conclusive evidence that all weapons have actually been surrendered. The court must weigh any conflicting evidence to determine if the restrained party has met the burden of proving compliance. Additionally, in determining compliance, the efforts of the restrained party are not relevant. The issue is actual compliance.
Whether you are seeking or opposing a protection order, the assistance of an experienced Washington civil protection attorney can help protect you and your rights. Call Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.