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.
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.
and Alexandra Braatz were married and lived in Oregon. They
separated and Alexandra 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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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
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 ...