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Braatz v. Braatz

Court of Appeals of Washington, Division 1

March 19, 2018


          Spearman, J.

         When the trial court issues a domestic violence protection order that meets certain statutory conditions, the court must also order the restrained person to surrender all firearms and other dangerous weapons. RCW 9.41.800(3). We are asked to determine the burden of proof that applies to an order to surrender weapons. We hold that the restrained person has the burden to prove by a preponderance of the evidence that they have surrendered their firearms and other dangerous weapons.

         In this case, the trial court found that Michael Braatz had complied with an order to surrender weapons. Because the finding is not supported by substantial evidence, we reverse.


         Michael and Alexandra Braatz were married and lived in Oregon. They separated and Alexandra[1] moved to Washington, where she petitioned for a domestic violence protection order. Alexandra alleged that Michael had frequently assaulted her and threatened to shoot her. A commissioner found that Michael had committed domestic violence and entered a protection order. The commissioner ruled that she could not order Michael to surrender his weapons because the court did not have personal jurisdiction over him.

         Alexandra moved to revise the commissioner's order and a hearing was held on January 4, 2017. Michael asked for a continuance to obtain counsel. He stated that he did not have any firearms in his possession because they were all secured with family members. Michael also stated that he was a strong believer in the Second Amendment to the United States Constitution and did not want to give up his guns unless it was legally proven that he should not have them. Alexandra disputed that Michael did not have any guns in his possession. She asserted that he had a pistol when he visited the children the previous weekend.

         The court continued the hearing until January 18 and entered a temporary surrender weapons order. The order required Michael to immediately surrender his firearms, any other weapons, and any concealed pistol license to the local sheriffs office.

         On January 11, Michael filed a proof of surrender form stating that he had surrendered the firearms in his possession. He attached a receipt showing that he turned in two handguns and one hunting rifle to the sheriff's office in Union County, Oregon.

         At the hearing on January 18, the parties informed the court that they had prepared an agreed order and only needed the court's approval. The agreed order required Michael to surrender all firearms and other weapons but allowed him to surrender them in either Union or Lane County, Oregon. Michael's attorney explained that the remainder of Michael's guns were at his mother's house in Lane County, more than 350 miles from Michael's home in Union County. The court approved the agreed order and set a review hearing for February 1.

         On January 30, Alexandra filed a declaration stating that, following a house fire in 2014, Michael stored his guns at an armory. She attached an email from Emerald Valley Armory containing an inventory list of 34 guns identified by make, model, and serial number. The three guns Michael had previously surrendered were included in the list.

         At the review hearing on February 1, Michael's attorney stated that he had been unable to surrender his guns because the Lane and Union County sheriffs refused to accept them. Counsel asked the court to allow Michael to surrender the weapons by storing them in a safe to which only a third party had access.

         Alexandra objected that the alternate arrangement was not secure, Michael had provided no information as to which or how many guns were in the safe, and he had thus far failed to account for 31 of the 34 guns on the 2014 inventory. Alexandra asserted that Michael was stalling and trying to circumvent the order to surrender weapons. She noted that Michael now admitted owning many guns even though, on January 11, he represented that the three he surrendered were his only guns. Because the orders issued on January 4 and 18 warned that failure to comply could result in contempt and criminal charges, Alexandra asked the court to refer the matter to the prosecutor to initiate contempt proceedings.

         In response, Michael argued that he had made good faith efforts to surrender the guns and a contempt action was not warranted. He asked the court to amend the order to allow him to surrender his weapons in King County, Washington and set a new review date.

         The court noted that it only had argument from Michael's counsel that Michael had tried to surrender his guns. The court found Michael not in compliance, granted Michael's request to amend the order, and set a review hearing for February 15. The court declined to refer the matter to the prosecuting attorney but stated that it was up to Alexandra whether she wished to file a motion for contempt.

         Alexandra filed a motion for a contempt hearing later that day. The court issued a show cause order and set a hearing concurrent with the February 15 review hearing. On February 10, Alexandra filed a memorandum in support of holding Michael in contempt. She asked that Michael be required to account for each of the 34 guns. Alexandra also asked the court to allow her to cross examine Michael at the February 15 hearing.

         On February 13, Michael filed a declaration describing his efforts to comply with the order to surrender weapons. He stated that, after the February 1 hearing, the Union County sheriffs office had agreed to accept the firearms. Michael declared that his father had then driven all of his guns from Lane County to Union County and surrendered them. He declared that "all firearms listed in her [Alexandra's] declaration are surrendered except for one which was owned by and in the possession of Dylan Hillman." Clerk's Papers (CP) at 86. Michael further declared that he had no concealed pistol license and no dangerous weapons to surrender. He attached a receipt listing 32 guns received by the Union County sheriff's office.

         At the hearing on February 15, Michael's attorney stated that she was appearing for Michael and he had surrendered all of his guns. Through counsel, Alexandra asserted that two of the guns from the 2014 inventory were not listed on Michael's receipts and there was no testimony or declaration accounting for these weapons. And, Alexandra argued, the court had no testimony or declarations as to weapons Michael had recently purchased, even though three of the guns Michael surrendered were not on the 2014 inventory and had thus been purchased since 2014. Michael's counsel responded that Alexandra asked him to surrender 34 guns and he had surrendered more than that.

         The court found that Michael had complied with the order to surrender weapons. The court stated:

He has made substantial efforts to turn in the guns that he has and I don't have any information that the 2014 list is accurate at this point in time. It's three years ago. I'm going to find that he's in compliance at this time, so I will enter an order to that effect... I will accept his declaration regarding the surrenders.

Verbatim Report of Proceedings (VRP) at 91. The written order states that Michael has filed a declaration of surrender and is in compliance ...

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