Last month, Division II of the Washington Court of Appeals, in Medlin v. Miller, held that a superior court cannot decline to issue an order to surrender weapons in a domestic violence protection order case based on constitutional concerns related to the Fourth and/or Fifth Amendments.
In Medlin, the petitioner sought a protection order against the respondent in superior court, alleging that he had assaulted her and one of their sons and had access to roughly 35 firearms. A domestic violence protection order was granted. Based on this, the petitioner requested that: (1) the court prohibit the respondent from possessing weapons, and (2) he be required to surrender any weapons he already owned. In response to these two requests, the court: (1) ordered that the respondent not possess weapons, but (2) declined to order surrender of the weapons he owned because the court was worried that requiring surrender would expose the respondent to self-incrimination and an unreasonable search.
Clearly, Division II disagreed with the lower court. This is so because the 2023 amendments were drafted to resolve the self-incrimination concern. Under the amendments, immunity was broadened to cover not only the act of surrender but any evidence derived from it, which, in turn: (1) extended protection against potential prosecutions unrelated to the order, and (2) required that every surrender order spell out the protections. Under RCW 9.41.801(9), the act of surrendering weapons, any testimony about the surrender, and information derived from either, cannot be used against the respondent in most criminal prosecutions, with narrow exceptions for perjury, false statements, or failing to comply with the order.
Courts now must issue an order to surrender weapons when granting a protection order and finding, by a preponderance of the evidence, that the respondent: (1) used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or (2) is otherwise ineligible to possess firearms. Even when no felony is involved, the court retains discretion to order surrender if it finds that a party’s possession presents a serious and imminent threat to public safety or to a particular person.
If you or a loved one is in a bind as a result of a criminal allegation (whether involving a protection order or not), immediately contact a Seattle Criminal Attorney. A Seattle Criminal Defense Attorney is not going to judge you and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties and can help direct people on how to best deal with their criminal charge, and sometimes even get them dismissed. So, it should go without saying that someone cited for a crime should hire a qualified Seattle criminal lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a criminal case in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer. SQ Attorneys can be reached at (425) 359-3791 and/or (206) 441-0900.