In Washington, the Flannery decision has caused confusion over when people accused of domestic violence need to surrender their firearms. More recently, another court decision has provided more clarity over the issue. We dig into this story with Kelsey Turner, an investigative reporter with InvestigateWest.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. In 2014, Washington lawmakers unanimously passed a law intended to prevent deadly domestic violence. It requires judges to order that people with domestic violence protection orders against them surrender any firearms in their possession. But in recent years, in a number of Washington counties, judges are not making those orders.
Kelsey Turner has been writing about this complicated legal story for InvestigateWest and joins us now to talk about it. Welcome back to Think Out Loud.
Kelsey Turner: Hi, thanks so much for having me.
Miller: So I mentioned this law that was unanimously passed in Washington 11 years ago. It was eventually challenged by a man named Dwayne Flannery, who was charged with assault for allegedly beating and choking his ex-fiancee. What argument did he make?
Turner: He made the argument that Washington’s law that requires him to surrender his firearms to law enforcement violated his Fourth and Fifth Amendment rights, which are his protections against unreasonable search and seizure and self-incrimination. So he basically argued that because he had a no-contact order put against him in this criminal assault case, which prohibited him from going near his girlfriend and also prohibited him from possessing weapons, he argued that a later order that ordered him to surrender his firearms would cause him to potentially incriminate himself by admitting to having weapons that he wasn’t legally allowed to have under this no-contact order.
So he made that argument and it went up to the Washington State Court of Appeals. The Court of Appeals ultimately decided in 2022 that they agreed with Flannery. They said that his Fourth and Fifth Amendment rights were potentially violated by this law, so they dropped the weapons surrender order and said that he did not have to surrender his firearms.
Miller: That became known as the Flannery decision in 2022 at the Washington State Court of Appeals. What impact did that ruling have?
Turner: It had a big impact across the state. It was a little bit unclear to judges, at first, how to apply it because many of the protections that domestic violence victims have from their abusers is through civil protection orders. In those instances, basically, if someone wants protection from their intimate partner, they can petition the court, their local court. They have to show that the abuse, more likely than not, occurred – which is different from a criminal case, which is beyond a reasonable doubt. So if they’re able to show that the abuse likely occurred, then they can get protection. It’s essentially a restraining order against their abuser.
But after the Flannery decision, judges began applying that ruling to the civil protection order cases and pretty much said that because it violated Fourth and Fifth Amendment rights, they weren’t able to issue these orders at all. Certain counties, which would be, for example, the Pierce County Superior Court, Cowlitz County, Clark County, and several judicial officers in Benton County and Yakima, a lot of them stopped issuing these orders at all. They said that they weren’t constitutionally able to order these alleged abusers to surrender their guns.
Miller: In response to this, lawmakers in Olympia passed what was called a “Flannery Fix.” That was two years ago. Did that so-called fix, fix anything?
Turner: It had a limited impact across the state. The “Flannery Fix” was aimed at resolving Dwayne Flannery’s self-incrimination concerns. So it added immunity provisions to Washington’s Firearm Surrender law that pretty much enabled, if someone feared that surrendering their gun would open them up to criminal charges for, say, unlawful possession of a firearm or something like that, these immunity provisions would mean that they are immune from being charged with that.
The goal was to encourage judicial officers to begin issuing these firearms surrender orders again. And some judicial officers did begin issuing them again over time but others, like all of the judicial officers in the Pierce County Superior Court, continued to say that the “Flannery Fix” didn’t address the constitutionality concerns, and they were still refusing to issue these orders.
Miller: What does research show broadly about domestic violence and gun ownership?
Turner: Gun ownership increases the rates of potential lethality of domestic violence a lot. There are statistics that show it is five times more likely that someone will be shot and killed. Especially at the time that someone is trying to get away from their abuser and petitioning the court for protection orders like this, that is one of the moments that’s potentially the most lethal for survivors.
Miller: In an article you wrote about this in 2023, you quoted domestic violence prevention advocates who said that people were going to die as a result of gun removals not being enforced. It seems like that is exactly what happened in Vancouver last year. Could you tell us the story of Carissa Larkin?
Turner: Very tragically, a woman named Carissa Larkin in Clark County in Vancouver … She was a mother of three. She got a protection order against her ex-fiance and the court, the Clark County Superior Court, had refused to issue the firearm surrender order. So the court did not order her ex-fiance to turn over his guns and that was due to the Flannery decision. At the time, the Clark County Superior Court was not issuing any firearms surrender orders due to the Flannery decision. She was shot and killed by her ex-fiance, after obtaining that protection order.
It speaks to a lot of what domestic violence victim advocates will say, which is that a protection order is just a piece of paper. It doesn’t provide protection in and of itself, and that’s why these firearm surrenders, they say, are very important. The Clark County Superior Court, a few months later, just this January, did begin issuing firearms surrender orders again. And they didn’t attribute it to Carissa Larkin’s death. But it was just a few months later and they say that it was due to the … They periodically review the law and the case law around the firearm surrender law, and that they decided it was time to start issuing orders again. So they began doing that in January.
Miller: But it was just a few months after she was killed. Even the U.S. Supreme Court, with a conservative majority that’s been skeptical of gun control laws, ruled in support of the enforcement of these kinds of protection orders. What was the issue in their recent case about that, United States v. Rahimi?
Turner: That focused on a federal law which prohibits people, who are restrained by certain domestic violence restraining orders, from possessing firearms. It was focused on Second Amendment rights – the right to bear arms – and went up to the Supreme Court. A lot of judges in Washington had been waiting for that decision to come out and were also hesitant to issue firearms surrender orders due to this pending case.
When the case was decided, the U.S. Supreme Court ruled that the law is constitutional and that this ban on possession of firearms is constitutional. Some victim advocates in Washington were hopeful that this would resolve the constitutionality issues, but they did then continue because of the Flannery decision.
Miller: But it gets a little bit more complicated at the state level once again – which was one of the big subjects of your recent reporting – because there’s a more recent Montesi decision. What have courts said more recently?
Turner: So the Montesi decision was very similar to the Flannery decision in that there was a man who was restrained from contacting his intimate partner. In this case, it was a civil protection order case. Unlike in the Flannery case, which was criminal, this was a civil protection order case where his ex-wife had sought protection from him. He was found to have guns that he had not turned into the court, so he argued that the law violated his Fourth and Fifth Amendment rights.
This time it went up to the Court of Appeals [which] found that the law is constitutional and that the legislature’s “Flannery Fix” basically did address the self-incrimination and unreasonable search and seizure concerns, and that he does have to turn in his firearms. Victim advocates and attorneys representing domestic violence survivors are very hopeful that this decision will signal to judges that they do need to issue these firearm surrender orders, because the law is constitutional.
Miller: Has that happened? I mean, are all judges, especially in the counties that had been leery of enforcing these orders, doing it now?
Turner: It does seem like it’s making a difference so far. There are judicial officers who are still reviewing the decision. But in Cowlitz County, for example, that was one superior court which had not been issuing these orders, basically since the Flannery decision. But then following this recent Montesi decision, which was issued on June 30, some judicial officers in Cowlitz County have started issuing the orders again due to the decision. So it’s making an impact there. The Pierce County Superior Court said that they’re still reviewing the decision, and in the interim, they’re continuing to not issue the orders. But they’ll review it and see how to address it going forward.
Miller: Kelsey, thanks very much.
Turner: Thank you.
Miller: Kelsey Turner is a reporter with InvestigateWest.
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