State and federal court decisions threaten to override Washington’s firearm surrender law
By Kelsey Turner / InvestigateWest
In June 2019, a woman lay on the floor of a trailer home in Kitsap County, struggling to breathe after her boyfriend, Dwayne Allen Flannery, allegedly beat and choked her.
After a neighbor called the police, Flannery was charged with second-degree assault. The county’s Superior Court issued a no-contact order prohibiting Flannery from going near his girlfriend. The court also issued an order requiring him to immediately turn in his firearms.
Four years later, Flannery has not turned in a single weapon.
He claimed the weapons surrender order violates his Fourth and Fifth Amendment rights against unreasonable searches and seizures and self-incrimination, since turning in his weapons would mean admitting he had firearms that he wasn’t legally allowed to have under the no-contact order, which made it a felony offense for him to possess firearms.
The Washington Court of Appeals agreed with Flannery, dropping the weapons surrender order in a November 2022 decision.
Since then, the Flannery case has spawned uncertainty over a law meant to protect domestic violence survivors from gun violence in Washington, a state with some of the strongest firearm regulations in the country. Many judicial officers — including all of those in the Pierce and Cowlitz county Superior Courts — have stopped enforcing Washington’s firearm surrender law in civil protection order cases due to their interpretation of the Flannery decision, creating a patchwork of different rulings from judge to judge on whether to require alleged abusers to turn in their guns.
State legislators attempted to clarify Flannery’s Fifth Amendment concern with a “Flannery fix” contained in recently passed legislation, but it’s unclear whether judges will find the change sufficient when the law takes effect in late July.
Even if judges do find it sufficient, the state’s firearm surrender law remains threatened. The Flannery decision is part of a flurry of similar court rulings across the country challenging the constitutionality of gun regulations, resulting in firearm surrender laws becoming effectively meaningless in some jurisdictions. A looming federal case, United States v. Rahimi, could invalidate firearm prohibition laws nationwide for people subject to domestic violence restraining orders. The U.S. Supreme Court announced on Friday, June 30, that it would weigh in on the case.
These decisions greatly concern domestic violence experts, advocates and attorneys. Research shows that domestic violence victims are five times more likely to be killed when their abuser has access to a gun.
“Rollbacks of these protections will no doubt lead to more female homicides in domestic violence incidents,” said Wendy Schiller, a Brown University political science and public policy professor who recently co-authored a book on state domestic violence legislation. “The seriousness of this just can’t be underestimated, given that nearly 50% of women who die by domestic violence die by firearm. This is hundreds, if not thousands, of women dying a year.”
Flannery decision fallout
Domestic violence victim advocates and attorneys said the way many judicial officers in Washington interpreted the Flannery decision is misguided at best — and potentially lethal in the worst cases.
“These precedents really have the potential to unravel all of the protections that advocates, that legislators, that survivors, prosecutors and law enforcement have been building and putting into place over decades to keep survivors and their families safe,” said Elizabeth Montoya, communications coordinator for the Washington State Coalition Against Domestic Violence.
In 1994, Washington became among the first three states to require all people under temporary domestic violence restraining orders to turn in their guns when they’re prohibited from having them. Today, still just eight states share that requirement, according to Everytown for Gun Safety’s Gun Law Navigator database.
In the last decade, state lawmakers gave law enforcement and the courts more authority to remove firearms in civil protection order cases and ensured law enforcement had a process for serving the orders. That led to an increase in firearm surrenders overall, Montoya said.
But now, in response to the Flannery case, many judicial officers across the state are failing to grant domestic violence victims’ requests for abusers to surrender their firearms. Despite Flannery’s case being a criminal no-contact order, some judges and court commissioners across Washington are applying the decision to civil cases as well, under the interpretation that the Flannery decision renders all civil firearm surrender orders unconstitutional.
While criminal cases address crimes like assault and can lead to no-contact orders, civil cases address issues where there isn’t enough evidence for the “beyond a reasonable doubt” standard needed for a criminal conviction. To be granted a protection order in civil cases, victims must only demonstrate that it’s more likely than not that the abuse occurred.
Some attorneys and legal experts in Washington disagree that the Flannery decision can even be applied to civil protection order cases because the Flannery ruling specifies that it is only relevant to criminal, pretrial cases.
“The Flannery court explicitly limited its opinion to the arguments presented in that case,” said Mary Welch, an attorney and statewide advocacy counsel with the Northwest Justice Project, which provides free legal assistance for civil cases. “It doesn’t apply to civil cases.”
In Pierce County, the Superior Court’s decision not to issue the orders is based primarily on the Fifth Amendment argument that firearm surrenders are self-incriminating, according to Terri Farmer, a Pierce County Superior Court commissioner.
The Pierce County court edited its protection order paperwork to remove all firearm surrender language. Farmer said the updated wording is meant to clarify that respondents cannot possess firearms, even though the court is not requiring them to turn in their weapons.
“All the judges looked at it and made a decision,” Farmer said. “We found Flannery to be binding, and we’re not issuing the orders.”
In other counties, including Yakima, Benton and Franklin, attorneys say some judges and commissioners have also refused to issue firearm surrender orders.
Welch started getting emails from victim advocates across Washington following the decision, saying courts wouldn’t enter weapons surrender orders. She’s seen judicial officers write, “Not allowed under Flannery” in the weapons surrender section within the protection order, while some courts scratch out the section completely, she said.
Washington’s “Flannery fix” in House Bill 1715, passed during this year’s legislative session, gives people subject to protection orders immunity from being prosecuted in certain instances where turning in their firearms would be self-incriminating. In granting this immunity, the bill aims to address courts’ concerns that firearm surrender orders violate individuals’ Fifth Amendment rights.
The bill’s sponsor, Rep. Lauren Davis, D-Shoreline, wrote the legislation in part based on her own domestic violence experience in King County, in which she said her abuser had access to firearms.
Not all courts have interpreted the Flannery decision as Pierce County has. King County continues to issue firearm surrender orders and ensures they are carried out through its Regional Domestic Violence Firearms Enforcement Unit.
The unit, composed of law enforcement personnel and prosecutors, among other partners, has recovered 4,000 firearms since it was formed in 2018, according to program manager Sandra Shanahan.
Amid the confusion of how to interpret the Flannery decision, attorneys say victims are in danger. Welch with the Northwest Justice Project has one client in a particularly dangerous situation who she advised to take refuge in a shelter because the weapons surrender order wasn’t issued.
“This isn’t going to stop until somebody gets killed by a gun that should have been taken away,” Welch said. “That’s what keeps me up at night. I just don’t want to have to wait until the worst happens.”
Supreme Court weighing in
An upcoming U.S. Supreme Court decision, however, could make courts’ interpretations of the Flannery decision a moot point in Washington.
The Supreme Court will hear an appeal of a lower court decision that struck down a federal law prohibiting people subject to domestic violence restraining orders from having firearms. The ruling, made by the U.S. Court of Appeals for the Fifth Circuit, revolves around Zackey Rahimi, an alleged domestic abuser in Texas who argued that a firearms prohibition violated his Second Amendment right to bear arms.
The Fifth Circuit, a court skewed heavily to the right, agreed with Rahimi, making it legal under federal law for accused domestic abusers to own guns in Mississippi, Louisiana and Texas. Gun safety advocates say it is critical for the Supreme Court to hear the case — and reverse it — because federal courts in other parts of the country might reach the same conclusion as the Fifth Circuit if its invalidation of federal law stands. If the Supreme Court affirms the decision, domestic violence survivors in all 50 states will be at heightened risk for gun violence, advocates say.
The Rahimi decision rests on a previous Supreme Court ruling in 2022, New York State Rifle & Pistol Association v. Bruen. The Bruen decision upended how lower courts approach gun restrictions by ruling that firearm regulations are only justified if they are consistent with the nation’s “historic” understanding of the Second Amendment, Justice Clarence Thomas wrote in the court’s majority opinion.
As in Flannery’s case, advocates, attorneys and researchers question the validity of the court’s legal arguments in the Rahimi and Bruen decisions. The Constitution was ratified before domestic violence was even considered a crime, noted Schiller, the Brown University professor. Basing domestic violence firearm laws on historic precedent set in the 18th century doesn’t make sense given how far women’s rights have progressed, she argues.
The legal uncertainty created by cases like Flannery and Rahimi is discouraging judges from entering into firearm surrender and prohibition orders, even when they have the authority to do so, experts say.
“Court decisions that are making it harder and harder to intervene and remove those guns when people are behaving dangerously are just an additional barrier to partner violence prevention efforts that we don’t need,” said Shannon Frattaroli, a researcher and professor at the Johns Hopkins Bloomberg School of Public Health Center for Gun Violence Solutions. “To suddenly roll back that progress has very real consequences.”
Andrea Saunders, managing attorney with the Family Safety Project at Tacomaprobono Community Lawyers, which provides free civil legal aid in Pierce County, said that even before the Flannery decision, enforcing firearm surrender orders had been a challenge for Washington’s law enforcement agencies and courts.
Law enforcement has to rely mainly on the honor system when serving firearm surrender orders. Saunders has seen cases in Pierce County where individuals simply won’t admit to having weapons.
Still, Saunders hopes House Bill 1715 will be enough for Pierce County Superior Court to start issuing weapons surrender orders again.
“It’s a real frustration and a safety concern,” she said. “A protection order doesn’t stop a bullet.”
InvestigateWest (invw.org) is an independent news nonprofit dedicated to investigative journalism in the Pacific Northwest. This project was supported with funding from the Data-Driven Reporting Project and the Fund for Investigative Journalism. The Data-Driven Reporting Project is funded by the Google News Initiative in partnership with Northwestern University | Medill.