Explore The NRA Universe Of Websites

Washington State Firearm Confiscation Law Found Unconstitutional

Monday, October 26, 2020

Washington State Firearm Confiscation Law Found Unconstitutional

Earlier this year, in a ruling of first impression in Washington State, the Kitsap County District Court decided that the state’s compulsory “firearm surrender” laws violated the Fourth and Fifth Amendments and the analogous provisions in the state constitution. “In our constitutional system of government, individuals have rights that the government and its agents (including courts) must respect. Among those rights are the right to be free from compelled self-incrimination under the Fifth Amendment, the right to be free from unreasonable searches and seizures under the Fourth Amendment, and their counterparts under Washington’s constitution.”

To appreciate the ruling, it is necessary to understand the underlying statutory framework. Washington State courts issuing certain protection orders in a civil or criminal case have the authority, or are required, to also order that the restrained person retrieve and “immediately surrender” to law enforcement all firearms and dangerous weapons that the person possesses or has control over, as well as any concealed pistol license (CPL). As soon as the order is issued, the restrained person becomes prohibited from possessing, acquiring or accessing firearms and weapons, and is ineligible for a CPL.

Within five days of the order, a restrained person must file with the court a written proof of surrender in a prescribed form, under oath (or alternatively, a declaration that he or she has no guns, weapons or CPL to surrender). The state law directs, further, that the court must “verify timely and complete compliance with orders to surrender weapons” by holding a compliance hearing as soon as possible. At this hearing (or any other hearing where compliance with the order to surrender weapons is addressed), the law demands that the restrained person attend and provide testimony under oath verifying their compliance.

If there is cause to believe that a restrained person is not in compliance, a court may issue a surrender search warrant to search any “locations where the firearms and dangerous weapons are reasonably believed to be” and confiscate this property. 

It is a crime to fail to comply with a surrender order, and the offender may also face sanctions for contempt of court. A separate state law makes it a felony for the person to possess a firearm during any period of time that the person was subject to that court order. Noncompliance by an out-of-custody pretrial defendant would also be a violation of release conditions, resulting in revocation of those conditions and confinement until trial.

The challenge to this law arose out of misdemeanor charges for fourth degree assault, the lowest level of assault, brought against Zachary James Marshall. Marshall has no previous criminal history and there is no indication in the ruling that Marshall had used or threatened to use a firearm or other dangerous weapon during the alleged assault.

Before any trial on the merits, the court at Marshall’s arraignment issued two orders. The first order was a domestic violence no-contact order because the charge involved a woman who qualified as an “intimate partner,” and prohibited any contact between Marshall and the woman. State law mandates that a court issuing such no-contact orders also impose a second order, a firearm surrender order under RCW 9.41.800.

There was no evidence that Marshall even possessed or had access to firearms or dangerous weapons. He did not file a compliance statement because his counsel invoked the Fifth Amendment on his behalf and brought proceedings challenging the orders and compliance mechanisms. The court in Marshall’s compliance hearing stayed the testimonial portion of the hearing but issued an order finding Marshall non-compliant with the surrender order.

In a thoughtful and exhaustive opinion (the decision runs to over 150 pages, with over 500 footnotes), an en banc court unanimously held that the surrender law violated the Fifth Amendment and the analogous state constitutional provision. Three of the four judges also found that the law violated the Fourth Amendment and the state analog (the remaining judge declined to do so on the basis that the challenge focused on self-incrimination issues). 

First and foremost, the state law placed restrained persons in an impossible situation. Marshall became prohibited from owning, possessing or having in his control any firearm, dangerous weapon, or CPL as soon as the court issued the no-contact order and surrender order. At the same time, on pain of criminal sanctions, Marshall was compelled to retrieve and “immediately surrender” to law enforcement the same personal property he was prohibited from accessing or possessing. There is no grace period or immunity of any kind written into the law.

Compelling Marshall to surrender firearms and dangerous weapons to law enforcement after he became prohibited violated his rights against self-incrimination because his compliance would inevitably provide the state “with all the evidence necessary to prosecute Marshall for felonious unlawful possession of a firearm.”

The state law violated constitutional protections in other ways. The mandatory proof of compliance statement, in the prescribed format and under oath, was also a form of compelled testimony. This provision gave Marshall the choice of submitting to the requirements and thereby incriminating himself, refusing to testify (with ensuing liability for contempt of court and criminal proceedings), or providing incomplete or inaccurate testimony (exposing him to perjury and other charges).

Marshall faced the same ranges of choices in the compulsory compliance hearing. State law directed that Marshall appear before the court to give sworn testimony regarding his compliance. “This surrender compliance provision seeks to compel testimony to accomplish what the Fifth Amendment prohibits by forcing testimony from Marshall’s own lips during his criminal prosecution.”

Several times throughout the decision, the judges drew unflattering comparisons between the state law and the proceedings of the infamous Star Chamber, a now abolished but secretive English court that was not bound by due process or the common law. Compelling Marshall “to testify under penalty of perjury and outlin[ing] the exact testimony Marshall must recite… is precisely what would occur under the Star Chamber inquisitorial method.” The Star Chamber, too, would “compel him to answer questions designed to uncover uncharged offenses without evidence from any other source that Marshall did in fact possess” guns, dangerous weapons, or a CPL.

The majority of the court likewise concluded that the statutory scheme violated the Fourth Amendment and the equivalent state constitutional provision. Out-of-custody defendants like Marshall, awaiting trial on criminal charges, were entitled to the presumption of innocence and lost none of their constitutional rights. Compelling Marshall to search his own home for his personal property, and to seize and surrender this property to law enforcement in the absence of individualized suspicion of wrongdoing, was a suspicionless and warrantless seizure that was prohibited both by the federal constitution and Article I, §7 of the state constitution.

All of the judges on the panel had “significant experience” in the policy and legal issues surrounding domestic violence, and recognized that the public concern to ensure the safety of domestic violence victims made it “very tempting” to extend “judicial approval” to the firearm surrender and compliance law. Courts, however, had a duty to safeguard the constitutional rights of all citizens “against any stealthy encroachments,” and this duty compelled the conclusion that the state law was unconstitutional and void. The portion of the surrender order requiring surrender of Marshall’s personal property was vacated, as was the order made at the subsequent hearing that found Marshall to be noncompliant.

The ruling has significant limitations, apart from being a decision of a lower-tier state court with limited effect on other courts in the state. Marshall did not challenge the ability to impose prohibitions on firearm and weapon possession in a pending criminal case, and the decision does not affect this aspect of the law or orders. The ruling is further confined to the context of pre-trial criminal proceedings, as the court declined to consider post-conviction proceedings and civil protection order cases.

What is important is that, although the case concerns firearms and weapons, it is not a “gun rights” case and the phrase “Second Amendment” is conspicuously absent from the court’s lengthy analysis. The decision confirms what the NRA has maintained all along about the dangers of this law in particular (here and here, for example) and similar firearm confiscation schemes across the nation. Individuals have rights that the government and its agents must respect. Relegating the Second Amendment to a lesser or “second class right” (to use Justice Clarence Thomas’ oft-quoted phrase) will inevitably breed contempt for all constitutional rights. Barring law-abiding citizens from exercising the fundamental right to bear arms is not constitutionally different than compelling incriminating testimony, or the illegal confiscation of personal property, or some similar negation of fundamental rights.

The case is State v. Zachary James Marshall, available here.

IN THIS ARTICLE
Washington Gun Confiscation
TRENDING NOW
New York State Police Advocate: Governor’s Gun Seizure Mandate is Hindering Crime Fighting

News  

Monday, May 22, 2023

New York State Police Advocate: Governor’s Gun Seizure Mandate is Hindering Crime Fighting

Proponents of so-called “red flag” laws like to claim they are a “public safety” measure. But a union representing state police investigators in New York is sounding the alarm that a mandate handed down by ...

U.S. House Judiciary Committee Advances Pistol Brace Resolution

News  

Monday, April 24, 2023

U.S. House Judiciary Committee Advances Pistol Brace Resolution

On April 19, the U.S. House of Representatives Judiciary Committee voted 23-15 to advance H.J.Res.44, which would reign in the Bureau of Alcohol, Tobacco, Firearms and Explosives’ attempt to regulate pistol stabilizing braces. The resolution employs ...

New San Francisco Law Would Prohibit Intimidating Crooks by Drawing Weapons

News  

Monday, May 22, 2023

New San Francisco Law Would Prohibit Intimidating Crooks by Drawing Weapons

Comedian Dave Chappelle visited San Francisco last week to perform. “What the f—k happened to this place?” he asked, declaring that the whole city has morphed into its infamous Tenderloin district. “Y’all … need a Batman!” 

Louisiana House Passes Constitutional Carry

Tuesday, May 23, 2023

Louisiana House Passes Constitutional Carry

Last week, the House Administration of Criminal Justice Committee held their “Gun Day,” where multiple pro-gun bills passed out of committee and the lone anti-gun measure was involuntarily deferred. Your active participation was crucial to protecting and ...

Updates to ATF Final Rule on Stabilizing Braces

News  

Monday, January 30, 2023

Updates to ATF Final Rule on Stabilizing Braces

On Monday, January 30, the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) published the final Factoring Criteria for Firearms with Attached “Stabilizing Braces” rule for public inspection in the federal register.

Connecticut:  Gun Control Legislation Nearing House Vote

Thursday, May 25, 2023

Connecticut: Gun Control Legislation Nearing House Vote

Gun banners in Hartford have been busy all session cooking up a concoction of more gun control.  In a state where there is already a large buffet of gun laws, it’s time for Connecticut gun ...

South Carolina Final Constitutional Carry Vote Soon - Contact Your Senator Today!

Tuesday, May 23, 2023

South Carolina Final Constitutional Carry Vote Soon - Contact Your Senator Today!

Senate Bill 109/House Bill 3594, NRA-backed constitutional carry bills, could be up for a Senate floor vote as early as this week. Your active participation has been pivotal in safeguarding and upholding our fundamental right to ...

No. Obama and Other Gun Controllers Don’t Want to Treat Guns Like Cars

News  

Monday, May 22, 2023

No. Obama and Other Gun Controllers Don’t Want to Treat Guns Like Cars

Always one for lame platitudes, last week Barack Obama suggested that gun control has become too politicized and that firearms should be regulated like motor vehicles. Speaking with CBS Mornings, the former president offered something of a ...

US Senator Tries to Undermine Branch of Government Intended as a Check on HIS Branch of Government

News  

Monday, May 22, 2023

US Senator Tries to Undermine Branch of Government Intended as a Check on HIS Branch of Government

As anyone who has an elementary school level education understands, our Founders established our federal government to have three branches—the Executive, Legislative, and Judiciary—each designed with their own duties, and also designed to act as ...

California: Numerous Anti-Gun Bills Eligible for Floor Votes

Friday, May 19, 2023

California: Numerous Anti-Gun Bills Eligible for Floor Votes

Yesterday, the Appropriations Committees of both chambers approved a number of anti-gun bills on their suspense files and they will soon be eligible for floor votes in their respective chambers.

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.