“Trying” to comply with an Order to Surrender Weapons is not good enough

Earlier this month, Washington’s Court of Appeals issued a decision that helps protect domestic violence survivors from gun violence by clarifying 1) that a restrained person has the burden of proving she/he has complied with a court order requiring him/her to surrender weapons and 2) that filing a “Proof of Surrender” form is not conclusive evidence of compliance with such an order.

Washington enacted a law in 2014 that prohibits a person subject to a protective order from purchasing or possessing a gun. The 2014 law also requires the restrained person to surrender any firearms or concealed carry licenses in his or her possession. This law exists because we know that when a gun is present in a domestic violence situation, the victim is at least five times more likely to be murdered. We also know that domestic violence calls lead to more police fatalities than any other type of call.

The mechanism for taking away a restrained person’s guns is an Order to Surrender Weapons. This order requires him/her to voluntarily turn over all his/her guns and file a Proof of Surrender with the court.

But what happens when the protected person knows or has reason to believe that not all of the guns have been turned over? That’s the scenario the Court of Appeals dealt with recently in Braatz v. Braatz, No. 76577-9-I, (Wash. Ct. App. Mar. 19, 2018).

In this case, there was evidence that restrained person (Michael) owned at least 34 guns, which were stored at an armory. After the entry of the Order to Surrender Weapons, however, he only surrendered three guns. Later, he surrendered an additional 32 guns. The list of guns surrendered did not match the list of guns stored at the armory. There were two guns unaccounted for. Michael, nonetheless, signed a Proof of Surrender, certifying under penalty of perjury that he had turned over all his guns. The protected person (Alexandria) filed a motion for contempt.

At the hearing, Michael argued that he made a “good faith effort” to surrender his guns, and the trial court concluded that he had complied with the order. Alexandria appealed.

On appeal, the Court of Appeals overturned the trial court and made several important holdings:

  1. Substantial or good faith efforts to surrender all weapons is insufficient. Under RCW 9.41.800(3), the restrained person has the burden to prove that they have actually surrendered all firearms and other dangerous weapons.
  2. Nothing in the statutory scheme, indicates that a Proof of Surrender form is conclusive evidence of compliance or that filing such a form shifts the burden of proof to the protected person.
  3. If the record contains evidence that the restrained person has not turned over all firearms and dangerous weapons, the court must weigh that evidence and determine whether the restrained party has met their burden of proof.

The best available research shows that the most important element in preventing domestic violence homicide is to remove the firearm from the situation. Laws requiring restrained people to turn over firearms do not implement themselves, however. It is encouraging to see our court system make common sense rulings that support policy concerns and protect people from future violence.