Seattle Police Department, V. Demetrius Jones ( 2021 )

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SEATTLE POLICE DEPARTMENT, ) No. 81901-1-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
DEMETRIUS JONES, )
)
Appellant. )
)
ANDRUS, A.C.J. — Demitrius Jones appeals the renewal of an extreme risk
protection order (ERPO) requested by the Seattle Police Department (SPD).
Jones challenges three findings of fact supporting the renewal order. Because
sufficient evidence supports two of the three challenged findings, and these
findings are sufficient to support the renewal of the protection order, we affirm.
FACTS
Demetrius Jones worked as a hot dog vendor in the Pioneer Square area
of downtown Seattle from 2013 to 2018. He worked Friday and Saturday nights
and his job required frequent contact with inebriated customers leaving nearby
bars and clubs. Because Jones was concerned about aggressive customers, he
obtained a concealed pistol license in 2017.
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Seattle police officers in the area had frequent interactions with Jones and
knew he often carried a firearm while working. Officer Brian Hewitt identified Jones
as a “source of disturbances and contention” in the area based on several incidents
in which Jones brandished and recklessly handled firearms while working at his
hot dog stand. Because of these incidents, as well as the fact that SPD was aware
of five firearms registered to Jones, Officer Hewitt filed a petition for an ERPO on
behalf of SPD on June 21, 2018. The trial court issued a temporary ex parte ERPO
the same day and set a hearing date for July 3, 2018.
At the hearing, Jones and Officer Hewitt testified about three incidents
forming the basis for SPD’s request. On May 7, 2017, officers overheard Jones
yelling racially inflammatory statements at two women in line at his stand. When
the women’s two male friends confronted Jones, he placed his firearm on a cooler
behind the hot dog stand and punched the two men in the face. On June 11, 2017,
Jones got into an argument with a customer at his stand. Jones threated to “pop
her” while lifting his shirt to display a firearm in his waistband. On June 17, 2018,
Jones yelled at officers arresting a man nearby his hot dog stand, stating “I can’t
wait to take you out” and “I’ll fight you right now.”
Jones disputed the details of these events. Although he admitted he had
an altercation with four people on May 7, 2017, Jones said he received permission
from a nearby SPD officer to place his firearm on the cooler and that he and the
group later resolved their disagreement peacefully. Jones completely denied the
events of the June 11, 2017 incident. Regarding the June 2018 incident, Jones
testified that, after observing officers arrest a man, he asked the man if he was
okay and an officer responded “mind your [own] fucking business.” Jones
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described other instances where he claimed he had been the victim of violence
while at work and that SPD officers had failed to assist him.
The trial court granted SPD’s petition and entered an ERPO for one year.
The court found (1) Jones had unlawfully or recklessly used, displayed, or
brandished a firearm; (2) he had recently committed or threatened violence; (3) he
had shown within the previous 12 months a pattern of acts or threats of violence;
and (4) he had a history of use, attempted use, or threatened use of physical force
against another person. As a condition of the ERPO, the court ordered Jones to
surrender all firearms in his possession to law enforcement. It also found that a
mental health evaluation was appropriate and ordered Jones to obtain one within
60 days and to file proof with the court within 15 days of the evaluation’s
completion.
At Officer Hewitt’s request, the court asked Jones about the whereabouts
of his five registered firearms. Jones denied having any firearms, claiming they
had been sold, gifted, stolen, or confiscated by police. After the ERPO hearing,
when Jones failed to surrender any weapons, Officer Hewitt obtained a search
warrant for his apartment. On July 14, 2018, officers found four firearms, some of
which were in his bedroom, as well as rifle scopes, ammunition including high-
capacity magazines, and papers indicating Jones’s dominion and control over the
firearms. Officers then arrested Jones while he was working at his hot dog stand,
where they recovered an additional firearm in a backpack at his feet. None of the
recovered firearms were registered to Jones.
At an August 3, 2018 review hearing, the court again asked Jones where
his five firearms were. Jones told the court that he had not had those five firearms
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for a number of years that the firearms had been gifted, sold, or stolen, and that
one was being held in evidence by Tacoma police. The court instructed Jones to
file a “declaration of non-surrender” accounting for the firearms. Jones filed this
declaration on August 23, 2018. The declaration generally indicated that his
firearms had been sold or gifted, but he provided no receipts of sale, did not identify
the dates on which sales or gifts occurred, and did not identify the individuals to
whom he sold or gifted any firearms. At a September 6, 2018 compliance hearing,
the trial court reviewed the declaration and concluded it did not adequately
establish that he no longer had access to those firearms. 1
In June 2019, SPD filed a motion to renew the ERPO. SPD alleged Jones
had violated the ERPO, had demonstrated a pattern of acts or threats of violence
within the prior 12 months, has a history of the use, attempted use, or threatened
use of physical force against others, and has a dangerous mental health issue.
SPD also alleged Jones had pending harassment, criminal trespass, and
disturbing the peace charges in Tacoma Municipal Court dating from incidents
occurring on September 17, 2018. SPD recounted the discovery of firearms inside
Jones’s apartment and on his person after the issuance of the ERPO and indicated
that Jones was facing criminal charges in King County District Court for unlawful
possession of a firearm and making false statements. Finally, SPD contended that
Jones had failed to obtain the court-ordered mental health evaluation.
1 It appears from the transcript of this hearing that the trial court entered an order finding Jones not
in compliance with the ERPO, but the order filed after the September 6, 2018 review hearing is not
in the record before us.
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The court held a renewal hearing on September 4, 2020. Officer Hewitt
testified that the allegations in SPD’s renewal petition were true. He testified that
after the ERPO hearing in June 2018, Jones had represented to him that he would
turn in any firearms in his possession either to SPD or to the Tacoma police, but
failed to do so. And he explained to the court that on July 13, 2018, the police
recovered five firearms from Jones’s apartment and person after the court had
ordered him to surrender all firearms. Officer Hewitt explained that some of these
weapons were found in Jones’s bedroom and some had purchase receipts
belonging to Jones. When the police arrested Jones, he had a gun on his person
that had been purchased by his roommate “a couple days after the ERPO was
signed.” He further testified that “most of the issues that we have had with Mr.
Jones [have] now subsided. We don’t have any issues. He no longer works up in
. . . Seattle as far as I’m aware, doing the hot dog stand.” But Officer Hewitt stated
that because Jones had violated the ERPO, was being prosecuted criminally for
having done so, and was being evaluated for his mental health competency in that
criminal proceeding, the SPD asked that the ERPO remain in effect until the
criminal proceeding had been completed.
Jones, appearing with a public defender, did not testify at this hearing. His
counsel argued that there was insufficient evidence to renew the ERPO because
SPD’s request was based on events that had occurred two years earlier. Jones
contended that the evidence did not establish that he currently posed a significant
threat of personal harm to himself or others.
Jones also contended he had completed the ordered mental health
evaluation and had undergone two separate competency evaluations in 2019 and
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2020 in criminal cases. Counsel suggested that Jones had submitted proof of
compliance with the ERPO at a January 11, 2019 hearing and that the court had
previously found him to be in compliance with this part of the ERPO. 2 Counsel
also contended that Jones had resubmitted proof of compliance with this aspect of
the order.
On September 14, 2020, after the renewal hearing, Jones filed a pleading
entitled “Mental Health Evaluation.” Jones’s counsel represented that the
documents supported a finding that Jones had completed a mental health
evaluation and that counsel had served the documents on SPD and the
prosecutor’s office before the September 4, 2020 hearing. Attached to the
pleading was a one-page document entitled “Comprehensive Life Resources
Discharge Summary,” that indicated Jones had presented for an “intake
assessment” on August 13, 2018, but then “declined services” leading the provider
to conclude it had “insufficient information at assessment to make a diagnosis.”
Also attached to the pleading was a March 5, 2020 forensic evaluation
conducted as the result of a July 2019 King County District Court order for an
evaluation of Jones’s competency to proceed to trial. The evaluator concluded
Jones did not have a major mental disease or defect and had the capacity to
understand the criminal proceedings pending against him.
The trial court granted the renewal of the ERPO through March 30, 2021.
The court found that Jones had access to firearms, as evidenced by Officer
Hewitt’s testimony that he was arrested in possession of a gun registered to his
2We do not have any pleadings or transcripts from the January 2019 hearing in the record on
appeal.
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roommate. The court also found that Jones violated the ERPO by possessing
guns on his person and in his apartment. And the court found that Jones still had
not accounted for five firearms registered in his name. The court rejected Jones’s
argument that the actions that formed the basis for SPD’s renewal petition were
too remote in time, finding that Jones’s decision to possess a firearm “so soon after
the entry of the order . . . demonstrate[d] an intention to attempt to get around the
surrender of firearms by taking advantage of having access to someone else’s
firearms.” For these reasons, the court found that Jones’s behavior “presents an
imminent threat of harm to others.”
Jones appeals the renewal of the ERPO.
ANALYSIS
In November 2016, Washington voters passed Initiative No. 1491, known
as the Extreme Risk Protection Order Act, now codified at RCW 7.94.010-.900. 3
The purpose of the statute is to “temporarily prevent individuals who are at high
risk of harming themselves or others from accessing firearms” by allowing family
members or the police to petition a court for an order prohibiting a person from
purchasing or possessing any firearm for a one-year period. RCW 7.94.010,
.040(2).
RCW 7.94.040(2) provides that “the court shall issue an extreme risk
protection order for a period of one year,” when, after a hearing, the court finds by
a preponderance of the evidence “that the respondent poses a significant danger
of causing personal injury to self or others” by having a firearm in his or her custody
3The Extreme Risk Protection Order Act, ch. 7.94 RCW, was repealed and recodified in January
2021. LAWS OF 2021, ch. 215. The relevant sections of the act remain unchanged.
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or control. Id. In determining whether grounds for an ERPO exist, the court “may
consider any relevant evidence including, but not limited to” the following:
(a) A recent act or threat of violence by the respondent against
self or others, whether or not such violence or threat of violence
involves a firearm;
(b) A pattern of acts or threats of violence by the respondent
within the past twelve months including, but not limited to, acts or
threats of violence by the respondent against self or others;
(c) Any behaviors that present an imminent threat of harm to self
or others;
(d) A violation by the respondent of a protection order or a no-
contact order issued under chapter 7.90, 7.92, 10.14, 9A.46, 10.99,
26.50, or 26.52 RCW;
(e) A previous or existing extreme risk protection order issued
against the respondent;
(f) A violation of a previous or existing extreme risk protection
order issued against the respondent;
(g) A conviction of the respondent for a crime that constitutes
domestic violence as defined in RCW 10.99.020;
(h) A conviction of the respondent under RCW 9A.36.080;
(i) The respondent's ownership, access to, or intent to possess
firearms;
(j) The unlawful or reckless use, display, or brandishing of a
firearm by the respondent;
(k) The history of use, attempted use, or threatened use of
physical force by the respondent against another person, or the
respondent's history of stalking another person;
(l) Any prior arrest of the respondent for a felony offense or
violent crime;
(m) Corroborated evidence of the abuse of controlled substances
or alcohol by the respondent; and
(n) Evidence of recent acquisition of firearms by the respondent.
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RCW 7.94.040(3). The court’s order must state a basis for the issuance of the
order and indicate whether a mental health evaluation is required. RCW
7.94.040(7). If the court issues an ERPO, it “shall order the respondent to
surrender to the local law enforcement agency all firearms in the respondent’s
custody, control, or possession and any concealed pistol licenses issued under
RCW 9.41.070.” RCW 7.94.090(1).
The statute sets out a procedure for conducting compliance review hearings
to verify that a respondent has fully complied with the court’s order. RCW
7.94.090(6). Law enforcement may seek a search warrant if there is probable
cause to believe a respondent has failed to surrender all firearms as required by
the ERPO. RCW 7.94.090(4). It is a gross misdemeanor for a person to possess
a firearm with knowledge that he or she is prohibited from doing so by an ERPO.
RCW 7.94.120.
The respondent may submit one request to terminate the ERPO during any
12-month period the ERPO is in effect. RCW 7.94.080(1). If the respondent seeks
to terminate, he or she has the burden of proving by a preponderance of evidence
that he or she does not pose a significant danger of causing personal injury to self
or others. RCW 7.94.080(1)(b). The court may consider any relevant evidence,
including the considerations listed in RCW 7.94.040(3).
Before the ERPO is due to expire, the court must notify the petitioner of the
impending expiration of the order. RCW 7.94.080(2). The petitioner may move to
renew the ERPO any time within 105 days of its expiration. RCW 7.94.080(3).
Under the renewal provisions,
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(b) In determining whether to renew an extreme risk protection
order issued under this section, the court shall consider all relevant
evidence presented by the petitioner and follow the same procedure
as provided in RCW 7.94.040.
(c) If the court finds by a preponderance of the evidence that the
requirements for issuance of an extreme risk protection order as
provided in RCW 7.94.040 continue to be met, the court shall renew
the order. However, if, after notice, the motion for renewal is
uncontested and the petitioner seeks no modification of the order,
the order may be renewed on the basis of the petitioner's motion or
affidavit stating that there has been no material change in relevant
circumstances since entry of the order and stating the reason for the
requested renewal.
RCW 7.94.080(3)(b), (c).
The appellate standard of review for a court’s issuance or renewal of an
ERPO is an issue of first impression for this court. SPD invites us to apply an
abuse of discretion standard of review, the same standard we use to review a
challenge to a domestic violence protection order (DVPO). In In re Marriage of
Freeman, 169 Wn.2d 664, 671, 239 P.3d 557 (2010), the Washington Supreme
Court, in evaluating a court’s refusal to terminate a permanent DVPO, stated that
“[w]hether to grant, modify, or terminate a protection order is a matter of judicial
discretion” and explained that this discretion is conferred by the express statutory
language of the Domestic Violence Prevention Act (DVPA), ch. 26.50 RCW. The
DVPA, the court noted, uses the word “may” in the relevant statutory provisions,
thus conferring discretion upon the trial courts. Id. It therefore concluded that the
decision to terminate a DVPO is discretionary and subject to the abuse of
discretion standard of review. Id.Unlike the DVPA, RCW 7.94.040(2) provides that a court “shall” issue an
ERPO if it “finds by a preponderance of the evidence that the respondent poses a
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significant danger of causing personal injury to self or others by having in his or
her custody or control, purchasing, possessing, or receiving a firearm.” RCW
7.94.080(3)(c) provides that the court “shall” renew the ERPO if it “finds by a
preponderance of the evidence that the requirements for issuance of an extreme
risk protection order as provided in RCW 7.94.040 continue to be met.” The
duration of any ERPO must be one year; there is no statutory authorization for a
trial court to determine the most appropriate duration of an ERPO. RCW
7.94.040(2).
On the other hand, in determining whether a respondent “poses a significant
danger of causing personal injury to self or others” by having a firearm in his or her
custody or control, the trial court “may” consider a lengthy set of factors, none of
which is dispositive and all of which need not be established, to justify such a
finding. RCW 7.94.040(2), (3). This provision does confer discretion on the trial
court in weighing the evidence to reach its decision. Similarly, the statute appears
to give the court discretion to decide whether a mental health evaluation is
appropriate. RCW 7.94.040(7)(d).
But in this appeal, Jones challenges the sufficiency of the evidence
supporting the trial court’s determination that “the requirements for issuance of an
extreme risk protection order as provided in RCW 7.94.040 continue to be met”
under RCW 7.94.080(3)(c). When a trial court has weighed the evidence,
evaluated the credibility of witnesses, and made factual findings, the “substantial
evidence” standard of review applies. In re Dependency of Schermer, 161 Wn.2d
927, 940, 169 P.3d 452 (2007) (where trial court acts as a fact-finder, appellate
review is limited to whether substantial evidence supports trial court's findings and
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whether findings support conclusions of law). Substantial evidence exists where
the record contains a sufficient quantity of evidence to persuade a fair-minded,
rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870
P.2d 313 (1994).
1. Mootness 4
SPD argues that the ERPO renewal’s expiration on March 30, 2021 renders
the case moot and it must be dismissed. Although there is no current active ERPO
against Jones, we decline to dismiss the appeal on mootness grounds because
there remains the possibility that the validity of the ERPO renewal will affect
Jones’s prosecution for unlawful possession of a firearm.
An appeal is moot when this court can no longer provide effective relief. In
re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (quoting Orwick
v. City of Seattle, 10 Wn.2d 249, 253, 692 P.2d 793 (1984)). Jones was charged
with a gross misdemeanor under RCW 7.94.120(2) for violation of the ERPO and
the case is pending. The statute imposes a criminal penalty of prohibiting the
offender from “having in his or her custody or control, purchasing, possessing, or
receiving, or attempting to purchase or receive, a firearm for a period of five years
from the date the existing order expires.” RCW 7.94.120(2). Our decision on the
validity of the order’s renewal will therefore likely be determinative of the length of
the term of punishment imposed upon Jones under RCW 7.94.120(2), if convicted
of a crime. Should we decide that the renewal order was made in error, the five-
year period in which Jones is deprived of his right to possess firearms will be
4 This section addresses SPD’s July 28, 2021 motion to dismiss the appeal as moot. For the
following reasons, we deny the motion.
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measured from the expiration of the original order in July 2019, as opposed to the
expiration of the renewal in March 2021. For this reason, this court can still provide
effective relief should we reverse the trial court’s renewal of the order. We will
therefore proceed to the merits of Jones’s arguments.
2. Factual Findings
Jones challenges three of the factual findings as unsupported in the record
and argues that the remaining findings do not support the trial court’s renewal of
the ERPO. He contends that substantial evidence does not support the court’s
finding that (1) he owns a firearm or has access to someone else’s firearms, (2) he
presents an “imminent threat of harm” to others, or (3) he poses a significant
danger of causing personal injury to himself or others by possessing a firearm.
While we agree the evidence does not support a finding that he presented an
“imminent threat” of harm to himself or others, the remaining findings of fact are
supported by substantial evidence and are sufficient to support renewal of the
ERPO.
a. Jones’s Continued Access to Firearms
RCW 7.94.040(3)(i) allows the court to consider evidence of a respondent’s
“ownership, access to, or intent to possess a firearm.” Jones challenges the
sufficiency of the evidence supporting the trial court’s findings that he “has access
to someone else’s firearms” and he “owns a firearm.” We reject this challenge.
There is ample evidence in the record supporting the trial court’s finding that
Jones has access to firearms, his own or otherwise. Officer Hewitt testified that
11 days after the trial court issued the ERPO and informed Jones that he was to
surrender his firearms and concealed carry permit, SPD officers located and
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confiscated a total of 5 firearms from his bedroom, his apartment, and his person.
In addition to the weapons themselves, the officers found rifle scopes, high
capacity magazines, hundreds of rounds of ammunition, and documents indicating
Jones’s control over the weapons. When the police arrested Jones, he had a gun
on his person that had been purchased by his roommate “a couple days after the
ERPO was signed.” Jones’s failure to comply with the ERPO and his enlistment
of a roommate to assist him in procuring a firearm support the trial court’s finding
that Jones continues to have access to firearms and intends to violate a court order
to possess firearms.
This finding is further supported by the fact that none of those guns
recovered in 2018 were among the five firearms registered to Jones, all of which
remain unaccounted for. Although Jones’s declaration of non-surrender is some
evidence that he no longer has access to those firearms, the trial court was free to
deem the declaration not credible. We defer to the fact finder to weigh the
evidence and judge witness credibility. State v. Bryant, 89 Wn. App. 857, 869, 950
P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788(1996)). The record thus supports the trial court’s finding that Jones remained in
possession of the firearms he claimed he had given away or sold to others.
b. Imminent Threat
Jones also contends the evidence does not support a finding that he
presents an imminent threat to himself or others. We agree.
RCW 7.94.040(3)(c) allows a court to consider, when issuing or renewing
an ERPO, “[a]ny behaviors that present an imminent threat of harm to self or
others.” The statute does not define “imminent threat,” but it is a concept well
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established in our case law. An imminent threat does not mean an immediate
threat; it means a threat that is “ready to take place: near at hand: . . . hanging
threateningly over one’s head: [or] menacingly near.” State v. Janes, 121 Wn.2d
220, 241, 850 P.2d 495 (1993).
The record here indicates Jones had several incidents of violent behavior,
menacing conduct, and the reckless displaying or brandishing of a firearm in 2017
and 2018. But the record is devoid of any evidence that this behavior continued
through 2019 or in 2020, when SPD moved to extend the ERPO. And as Officer
Hewitt admitted, when Jones stopped selling hot dogs in Pioneer Square, the
incidents “subsided.” There was no evidence that Jones was readying to engage
in any violent or threatening conduct in September 2020. Thus, the trial court’s
finding that Jones’s behaviors presented “an imminent threat of harm to self or
others” is not supported by substantial evidence.
c. Significant Danger of Causing Personal Injury
While the record does not support the finding that Jones presents an
imminent threat of harm, neither RCW 7.94.040(2) nor RCW 7.94.080(3)(c)
requires the court to make such a finding before issuing or renewing an ERPO.
These statutes require only that the court find by a preponderance of the evidence
that Jones continues to pose a significant danger of causing personal injury by
having access to firearms. The court made this finding here.
Jones contends the evidence does not support this finding because there
is no evidence he engaged in any violent acts in 2019 and 2020. He argues the
evidence of his assaultive and threatening behavior is too remote in time to support
renewal of the ERPO. We disagree.
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First, the unchallenged facts establish that Jones willfully violated a court
order and remained in possession of at least five firearms after the court ordered
him to surrender any weapons in his custody or control. The evidence supports
the court’s finding that Jones used his roommate to purchase firearms after the
entry of the ERPO as a way of circumventing the restrictions. A reasonable trier
of fact could conclude that Jones had no intention, in 2018 or in 2020, to conform
his conduct to the law in light of his noncompliance with the ERPO.
Second, RCW 7.94.040(3)(k) permits the court to consider “[t]he history of
use, attempted use, or threatened use of physical force by the respondent against
another person,” without any time limitation attached to that particular factor. The
court’s unchallenged findings from the July 2018 ERPO establish that Jones had
a history of violent, threatening, and impulsive behavior and had brandished
firearms when threatening others. When this history is considered in light of
Jones’s noncompliance with the order to surrender his firearms, his continued
possession of firearms, and his actions to circumvent the order by enlisting a
roommate to purchase firearms for his use, a reasonable trier of fact could
conclude that Jones continued to present a significant danger to others.
Third, the transcripts of the hearings reveal a respondent who was angry,
agitated, disruptive of the court proceedings, and disrespectful to the court and the
other parties. He interrupted Officer Hewitt, his own attorney, and the court on
multiple occasions and, at the September 2020 hearing, had to be admonished
that the court would mute his sound if he did not refrain from interrupting the
hearing. A reasonable trier of fact could conclude from his statements and conduct
during that hearing that he remained impulsive with a lack of behavioral control.
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Although two years had passed since the entry of the initial 2018 ERPO,
and there was no evidence that Jones presented an “imminent threat to others,”
Jones’s lack of compliance with the ERPO, his possession of firearms immediately
after being ordered to surrender them, his use of a roommate to circumvent the
ERPO, his history of threatening behavior, his inability to account for the missing
firearms, and his demonstrated lack of behavioral control during the hearings
sufficiently support the trial court’s conclusion that Jones continued to be a
significant danger of causing personal injury to others.
We therefore affirm.
WE CONCUR:
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