Constitutional Confusion: Washington's Weapons-Surrender Statute

BY KARLA CARLISLE AND BENJAMIN GOULD¹

Abusers who have firearms are dangerous not only to current or former partners, but also to the public at large.² This danger may peak when a partner seeks legal redress, such as a restraining order.³

Since 2014, the Washington Legislature has become a national leader in addressing the problem of armed abusers. It has enacted, and then repeatedly strengthened, a weapons-surrender statute. Under this statute, courts that issue certain kinds of restraining orders must also order the restrained party to surrender firearms and dangerous weapons.⁴

The last few years, however, have witnessed much confusion in the trial courts about whether the weapons-surrender statute is constitutional. Our purpose here is to explain how this confusion unfolded and why some of it may have been unnecessary, and to give lawyers who do not practice in this area a sense of where things currently stand.

The Legislature’s Response to the Problem of Armed Abusers

In 2014, the Washington Legislature began requiring courts that issued certain restraining orders to order the surrender of weapons as well.⁵ The Legislature also made it a felony for a person bound by such a restraining order to possess a firearm.⁶

In 2019, the Legislature amended the law to try to ensure compliance with an order to surrender weapons.⁷ Washington courts were to “develop procedures to verify timely and complete compliance,” including by requiring sworn proof of surrender or testimony under oath.⁸ It was also made a felony for persons to possess a firearm if they were subject to an order to surrender weapons.⁹

The Fifth Amendment Issue

Together, these provisions created a constitutional problem. Once ordered to surrender weapons, a party commits a crime by possessing them. To comply with the order to surrender, moreover, this same party must also submit satisfactory proof of surrender. But you can only surrender weapons if you first possess them. Providing satisfactory proof of surrender thus confesses to the crime of having possessed weapons, for however short a time, after an order to surrender the weapons has issued. Under this legal framework, compliance with an order to surrender weapons would seem to require self-incrimination, in violation of the Fifth Amendment.

Crucially, however, the Legislature itself recognized this problem early on. In 2021 and 2022, it revised the law to try to provide some immunity from prosecution for those who complied with orders to surrender weapons.¹⁰

The Flannery Decision

While the Legislature was trying to address the Fifth Amendment problem, Division II of the Court of Appeals decided a consequential case,State v. Flannery, that dealt with the same problem.¹¹

In Flannery, assault charges were filed against Dwayne Flannery, after which the trial court entered a restraining order against him.¹² That order made it a felony for him to possess firearms. The court then entered a weapons-surrender order, and when Flannery didn’t comply, the prosecution filed another criminal charge for noncompliance. Flannery then argued, and the trial court ruled, that by requiring him to produce firearms that would amount to proof of a felony, the weapons-surrender statute violated the Fifth Amendment. The court also ruled that the statute violated the Fourth Amendment and Article I, Section 7 of the Washington Constitution, which like the Fourth Amendment regulates governmental searches and seizures.

When the government appealed, Division II affirmed the trial court. Two characteristics of the decision would have lasting consequences.

First, the Court of Appeals determined that the version of the weapons-surrender statute that applied to Flannery was the former version of the statute—the version that preceded recent legislative attempts to provide immunity to the subject of a weapons-surrender order.¹³ Any decision on statutory immunity would have to wait for another day.

Second, the trial court in Flannery had ruled that the weapons-surrender statute violated the Fourth Amendment and Article I, Section 7 of the Washington Constitution because the statute also violated the Fifth Amendment.¹⁴ This ruling was never really challenged on appeal. That’s because the state advanced only one appellate argument about the Fourth Amendment and Article I, Section 7. A violation of those constitutional provisions, the state argued, occurs not at the time of search, but only “when the fruits of the illegal search are used against a defendant.”¹⁵ This argument assumed that the weapons-surrender statute involved a violation of the Fourth Amendment and Article I, Section 7, and disputed only the violation’s timing. The Court of Appeals rejected this argument about timing, but more important than that rejection was the assumption that nobody seemed to challenge: the assumption that the weapons-surrender statute involved a constitutionally relevant search or seizure.

While this assumption would have lasting consequences, it skipped over a serious threshold issue. To implicate the Fourth Amendment or Article I, Section 7 of the Washington Constitution, a search or seizure must be conducted by a “state actor”—an agent, de jure or de facto, of the government.¹⁶ But when private citizens are ordered to gather and surrender their weapons, do they become state actors? Flannery neither posed nor answered this question.

Flannery’s Aftershocks in the Judiciary and Legislature

In February 2023, the Administrative Office of the Courts’ Trial Court Legal Services team issued two memoranda onFlannery. The memos addressed what was then the most recent version of Washington’s weapons-surrender statute. As amended in 2022, that statute stated that “voluntarily surrendering weapons, or providing testimony related to the surrender, … may not be used” in certain criminal prosecutions against the person surrendering weapons.¹⁷

The memos concluded that, in light of Flannery, this immunity provision violated the Fourth and Fifth Amendments. In analyzing the Fourth Amendment, however, the memos—like Flannery itself—did not ask whether weapons-surrender orders implicated state action. They simply assumed they did.

The AOC memos’ analysis of the Fifth Amendment, meanwhile, was soon mooted by the Legislature, which in April 2023 revised the weapons-surrender statute yet again. It added a comprehensive immunity provision that went into effect in July 2023. This provision, modeled in part on a federal immunity statute that the Supreme Court upheld in 1972 against a Fifth Amendment challenge, appeared capable of conferring constitutionally sufficient immunity against any criminal prosecution.¹⁸

Still, the two memos were widely distributed among trial court judges, and though they came with a disclaimer that they were not legal advice and judges were free to disregard them, they were given weight. After the memos were distributed, courts in Benton, Franklin, Cowlitz, Lewis, Yakima, Pierce, and Clark counties ceased ordering the surrender of firearms, ruling that their hands were tied by Flannery. Courts in King, Spokane, and Walla Walla Counties, on the other hand, continued ordering the surrender of firearms when issuing a civil protection order.

The Second Amendment Enters the Picture

All this legal flux in Washington was complicated by uncertainty at the federal level. Federal law criminalizes the possession of firearms by anyone restrained from harassing, stalking, or threatening an intimate partner and found to be a credible threat to that partner’s physical safety.¹⁹ This law, the Fifth Circuit determined in its March 2023 decision in United States v. Rahimi, violated the Second Amendment.²⁰ The Supreme Court granted certiorari a few months later,²¹ and the next year reversed the Fifth Circuit in an 8-1 decision.²²

In the meantime, some Washington trial courts that had already stopped requiring people to surrender their firearms began to cite the Fifth Circuit’s Rahimi decision as another reason they could not require the surrender of firearms. Since these courts are not bound by the Fifth Circuit,²³ they must have found its decision in Rahimi highly persuasive.

The Price of Uncertainty

The legal uncertainty in Washington came at a price: some lost people their lives.

Amber Rodriguez was a paraeducator in Benton County. She asked the court to require her ex-husband to surrender his handgun at her protection order return hearing on Feb. 22, 2024. The court, citingFlannery, declined to do so. Two months later, Rodriguez was shot and murdered by her ex-husband with his handgun in front of their 9-year-old son at the school where she worked.

Carissa Larkin, a mother of three, petitioned for protection in Clark County and asked for an order that her abuser surrender his weapons. However, the court only prohibited him from possessing weapons. It did not make him surrender them. On July 25, 2024, while Larkin was holding her four-year-old child, her ex-fiancé shot and killed her and then turned the gun on himself.

The Amended Weapons-Surrender Statute is Ultimately Upheld

This uncertain state of affairs lasted from 2023 well into 2025—in our view, considerably longer than it should have.

Recall that in 2023, the Legislature included a comprehensive immunity provision in the weapons-surrender statute. This provision expressed an important policy: The main purpose of the weapons-surrender statute is the incapacitation, not the punishment, of armed abusers.

Yet even after this new immunity provision went into effect in July 2023, and even after the U.S. Supreme Court eliminated the Second Amendment issue with its June 2024 decision inRahimi, some trial courts in our state declined to issue weapons-surrender orders, citing Flannery. Flannery, however, was applying a version of the weapons-surrender statute that lacked any immunity provision, so its Fifth Amendment analysis could not apply to the revised statute. And Flannery’s ruling on the Fourth Amendment and Article I, Section 7 assumed, without deciding, that a weapons-surrender order implicated state action. If that assumption is challenged, Flannery cannot bind.²⁴ And the assumption can certainly be challenged. If the reluctant subjects of weapons-surrender orders become state actors when compelled to gather and turn over their weapons, state action would seem to lack any logical stopping point. Anyone following a governmental directive merely to avoid liability would become a state actor. This category would expand to include the many civil litigants who are routinely compelled over their objections to turn over documents to an opposing party.²⁵

In any event, the uncertainty finally began to dissipate in June 2025, when Division I issued In re Montesi. There, the Court of Appeals had little trouble upholding the amended weapons-surrender statute’s immunity provision against a challenge under the Fifth Amendment, the Fourth Amendment, and Article I, Section 7 of the Washington Constitution, and the Second Amendment.²⁶

Three months after Montesi, Division III issued an unpublished decision, In re Hernandez.²⁷ In Hernandez, Ilana Hernandez had asked the Benton County Superior Court for a civil-protection order, as well as an order requiring her husband to surrender his 23 handguns, 15 semi-automatic rifles, and many unassembled firearms. A Benton County trial court, citing Flannery, had ruled that an order to surrender would violate the Fourth Amendment. Division III reversed, agreeing with Montesi that the immunity provision of the weapons-surrender statute was constitutional. This decision dealt with a vital question, and it had independent precedential value, since one Division of the Court of Appeals is not bound by another.²⁸ Yet when Ilana Hernandez asked Division III to publish its decision and help to dispel the confusion among trial courts, the court declined to do so.

Where Things Stand Now

Following the Montesi opinion, courts that had previously declined to issue orders to surrender began to do so when issuing protection orders. But ordering the surrender of firearms is just the first step in ensuring victims’ safety. The court is also required to ensure timely and complete compliance with its order to surrender.²⁹

A recent decision illustrates the importance of ensuring compliance. In Dela Llana v. Holiwell, the trial court ordered Darrion Holiwell to surrender his weapons along with an order of protection for the petitioner, Grenadinah Dela Llana.³⁰ After Holiwell claimed he had no firearms, the King County domestic violence firearms unit produced a report to the court listing 70 firearms registered to Holiwell. Holiwell then claimed that he had sold or transferred the firearms in private transactions, but produced no receipts or transfer documents. The trial court imposed a contempt sanction of $100,000, due in 30 days, which would be purged if Mr. Holiwell complied, but did not set any additional compliance hearings. The Court of Appeals held that this process had failed to ensure compliance with the surrender order, as required by statute. As this case shows, even the ablest courts are still refining their procedures to meet the standard required by the weapons-surrender statute.

ABOUT THE AUTHORS

Karla Carlisle is an attorney with the Northwest Justice Project, practicing in Benton, Franklin, Walla Walla, and Columbia Counties.

Benjamin Gould is a partner at Keller Rohrback L.L.P. in Seattle, practicing in the firm’s complex litigation group.

NOTES

1. This article discusses cases in which the authors appeared as counsel. Carlisle represented Ilana Hernandez in In re Hernandez, and Gould represented Jessica Montesi in In re Montesi.

2. Jacquelyn Campbell et al., “Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study,” 93 Am. J. Pub. Health 1089, 1092 (2003); Lisa B. Geller et al., “The Role of Domestic Violence in Fatal Mass Shootings in the United States, 2014-2019,” 8 Injury Epidemiology 38 (2021).

3. Natalie Nanasi, “Disarming Domestic Abusers,” 14 Harv. L. & Pol’y Rev. 559, 578 (2020).

4. We use the term “restraining order” to mean any civil protection order.

5. Laws of 2014, ch. 111, § 2(3) (codified at RCW 9.41.800(3)).

6. Id., § 1(2)(a)(ii) (codified at RCW 9.41.040(2)(a)(ii)).

7. Laws of 2019, ch. 245, § 2(1) (codified at RCW 9.41.801(1)).

8. Id. § 2(6) (codified at RCW 9.41.801(6)).

9. Id. § 3(2)(a)(iii)(C)(II) (codified at RCW 9.41.040(2)(a)(iii)(C)(II)).

10. Laws of 2021, ch. 215, § 75(9)(a); Laws of 2022, ch. 268, § 30(9)(a).

11. 24 Wn. App. 2d 466, 520 P.3d 517 (2022).

12. Id. at 475.

13. Id. at 472.

14. Id. at 477–78.

15. Id. at 484.

16. See, e.g., City of Pasco v. Shaw, 161 Wn.2d 450, 459, 166 P.3d 1157 (2007).

17. Laws of 2022, ch. 268, § 30(9)(a).

18. See Laws of 2023, ch. 462, § 403(9) (codified at RCW 9.41.801(9)). For the relevant Supreme Court decision, see Kastigar v. United States, 406 U.S. 441 (1972), which upheld 18 U.S.C. § 6002.

19. 18 U.S.C. § 922(g)(8).

20. 61 F.4th 443 (5th Cir. 2023).

21. United States v. Rahimi, 143 S. Ct. 2688 (2023).

22. United States v. Rahimi, 602 U.S. 680 (2024).

23. See City of Seattle v. Long, 198 Wn.2d 136, 166, 493 P.3d 94 (2021).

24. See Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 824, 881 P.2d 986 (1994) (“In cases where a legal theory is not discussed in the opinion, that case is not controlling on a future case where the legal theory is properly raised.”).

25. See CR 37.

26. 34 Wn. App. 2d 777, 572 P.3d 459 (2025).

27. No. 40749-7-III, 2025 WL 2779176 (Sept. 30, 2025).

28. In re Arnold, 190 Wn.2d 136, 148–54, 410 P.3d 1133 (2018); see also RAP 12.3(d).

29. RCW 9.41.801(6)(a).

30. 35 Wn. App. 2d 771, 582 P.3d 883 (2025).