Alexandra Braatz v. Michael Braatz , 413 P.3d 612 ( 2018 )

IL ED
COURT OF APPEALS DIV
STATE OF WASHINGTON
20181IAR 19 AU 8: 146
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ALEXANDRA BRAATZ,
No. 76577-9-1
Appellant,
DIVISION ONE
V.
MICHAEL BRAATZ, PUBLISHED OPINION
Respondent. FILED: March 19, 2018
SPEARMAN, J. — When 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.
In this 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.
No. 76577-9-1/2
FACTS
Michael and Alexandra Braatz were married and lived in Oregon. They
separated and Alexandral 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.
Alexandra 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.
The 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.
On 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
1 We refer to the parties by their first names for clarity. We intend no disrespect.
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No. 76577-9-1/3
he turned in two handguns and one hunting rifle to the sheriff's office in Union
County, Oregon.
At the 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.
On 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.
At the 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 had access.
Alexandra 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
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No. 76577-9-1/4
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.
In 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.
The 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.
Alexandra 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.
On 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.
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No. 76577-9-1/5
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.
At the 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 than that.
The 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 with the order to
surrender weapons.
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No. 76577-9-1/6
DISCUSSION
Alexandra appeals the trial court's ruling that Michael complied with the
order to surrender weapons. The issues on appeal concern the statutory
provisions, enacted in 2014, to restrict access to firearms by persons subject to
domestic violence protection orders. LAWS OF 2014, ch. 111. Under RCW
9.41.800(3), when the 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:
the court shall:
(A)Require the party to surrender any firearm or other dangerous
weapon;
(B)Require the party to surrender a concealed pistol license
issued under RCW 9.41.070;
(C)Prohibit the party from obtaining or possessing a firearm or
other dangerous weapon; and
(D)Prohibit the party from obtaining or possessing a concealed
pistol license.
RCW 91.41.800(3)(c)(ii). Possession of a firearm while subject to a qualifying
domestic violence restraining order constitutes unlawful possession of a firearm
in the second degree. RCW 9.41.040(2)(a).
A party ordered to surrender weapons must file "a proof of surrender and
receipt form" within five days of the entry of the order. RCW 9.41.804. Pursuant
to RCW 9.41.802, the administrative office of the courts(AOC)developed a proof
of surrender form "used to document that a respondent has complied" with an
order to surrender weapons. The form developed by the AOC states that the
restrained person has been ordered to surrender "any and all firearms and other
dangerous weapons" in his or her "possession or control," as well as "any
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No. 76577-9-1/7
concealed pistol license." Form WPF All Cases 02-060, Proof of Surrender (rev.
Jan. 2018).2 The form requires the restrained person to certify, under penalty of
perjury, that he or she has surrendered all weapons and attach a receipt. The
AOC receipt form requires a detailed list of each item surrendered. Form WPF All
Cases 02-065, Receipt for Surrendered Weapons and Concealed Pistol License
(rev. Jan. 2018).3 The sheriff or other authorized person must certify receipt of
the weapons under penalty of perjury.
The AOC also developed a standard order to surrender weapons form.
Form WPF All Cases 02-050, Order to Surrender Weapons (rev. Jan. 2018).4
This form, which the trial court used in this case, orders the restrained person to
immediately surrender "all firearms and other dangerous weapons in [his or her]
possession or control." CP at 61. The order instructs the restrained person to
take four steps:
Step 1: Immediately turn in the weapons and CPL.
Step 2: Get a receipt for the weapons and CPL from law
enforcement or court designated person;
Step 3: Complete the Proof of Surrenderform and attach the
receipt.
Step 4: File the documents with the clerk of the court within 5 days.
Id. at 61-62.
The issue before us is whether the trial court erred in finding that Michael
complied with the order to surrender his weapons. As an initial matter, the parties
dispute the burden of proof. Alexandra asserts that the restrained person has the
burden to surrender his weapons and convince the court that he has done so. In
2 http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=95.
3 http://www.courts.wa.gov/forms/?fa=forms.contribute&formlD=95.
4 http://www.courts.wa.gov/forms/?fa=forms.contribute&formID=95.
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No. 76577-9-1/8
a joint amicus brief, several friends of the court support this position.5 Amici
contend that perpetrators of domestic violence routinely fail to comply with orders
to surrender weapons. They argue that, where the record creates a question as
to whether an abuser has surrendered all of his guns, the court should require
the restrained person to present evidence to resolve the discrepancy.
Michael contends the restrained person's only statutory obligation is to
timely file a document stating that he has surrendered his weapons. His position
is that, once the restrained person declares he has surrendered his weapons, the
burden shifts to the plaintiff to prove that the declaration is false.
We agree with Alexandra. The statutory provisions do not expressly
allocate the burden of proof. But, taken together, these provisions indicate that
the restrained person has the burden to prove that they have surrendered all
firearms and other dangerous weapons.
Under RCW 9.41.800(3), when the court issues an order to surrender
weapons pursuant to a domestic violence restraining order, the restrained person
must immediately surrender all firearms, other dangerous weapons, and any
CPL. This is the primary obligation established by statute. The restrained person
must also file a proof of surrender and receipt. RCW 9.41.804. This second
requirement serves as evidence that the restrained person has complied with the
order to surrender weapons. See RCW 9.41.802 (form serves to document
compliance). By requiring the restrained person to file evidence of compliance,
the statute assigns the burden of proof to the restrained person.
5 Amici curiae are: Legal Voice, Northwest Justice Project, Washington State Coalition
Against Domestic Violence, Alliance for Gun Responsibility Foundation, Coalition Ending Gender-
Based Violence, and Seattle City Attorney's Office.
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No. 76577-9-1/9
Nothing in the statutory scheme, however, indicates that a proof of
surrender form is conclusive evidence of compliance or that filing such a form
shifts the burden of proof. Such a reading would be contrary to both common
sense and the purpose of the surrender weapons provision. See Dep't of Labor
and Indus. v. Rowley, 185 Wash. 2d 186, 204, 378 P.3d 139(2016)(stating that, in
civil matters, the burden of proof is allocated based on common sense and policy
concerns)(citing 5 Karl B. Tegland, Washington Practice: Evidence Law and
Practice § 301.2, at 193(5th ed.2007)). The provisions of RCW 9.41.800-.804
reflect a legislative determination that it is in the public interest to prohibit persons
subject to specific domestic violence restraining orders from possessing firearms
and other dangerous weapons. In determining whether a person has complied
with an order to surrender weapons, the issue is not whether the person has filed
a proof of surrender form but whether the person has surrendered all of his or her
weapons. A proof of surrender form provides evidence of compliance but does
not, in itself, prove that the person has surrendered all of their weapons.
We conclude that the party ordered to surrender weapons has the burden
to prove compliance. Because this is a civil matter, we apply the preponderance
of the evidence standard. See Rowley, 185 Wash. 2d at 208-09 (preponderance of
the evidence generally applies in civil law). The proof of surrender form and
receipt, which the party must file pursuant to RCW 9.41.804, serve as prima facie
evidence that the party has surrendered his or her weapons. But where the
record contains conflicting evidence, the court must weigh that evidence and
determine whether the restrained party has met their burden of proof.
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No. 76577-9-1/10
In this case, the trial court found that Michael had complied wih the order
to surrender weapons. We review challenges to findings of fact for substantial
evidence.6 See, e.g., In re A.W., 182 Wash. 2d 689, 711, 344 P.3d 1186 (2015);
Sunnvside Valley Irr. Dist. v. Dickie, 149 Wash. 2d 873, 73 P.3d 369 (2003).
Evidence is substantial where it is "sufficient to persuade a rational fair-minded
person the premise is true." Sunnyside Valley, 149 Wash. 2d at 879 (citing
Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash. 2d 169, 176,4 P.3d 123
(2000)).
Alexandra argues that the trial court erred in ruling that Michael was in
compliance with the order to surrender weapons. She contends the trial court
improperly considered Michael's "substantial efforts" in determining whether he
had surrendered all of his weapons. VRP (2/15/17) at 91.
She is correct. In determining whether Michael was in compliance with the
surrender weapons order, the factual question before the court was whether
Michael had surrendered all of his firearms, other dangerous weapons, and any
CPL. Michael's efforts to surrender weapons are not relevant to this
determination. To the extent the trial court ruled that Michael was in compliance
with the order to surrender weapons because he made efforts to comply, it was
error.
Alexandra next argues that the trial court's ruling is error because the
record does not support a finding that Michael surrendered all of his firearms.
6 The parties generally appear to agree that our review in this case is for substantial
evidence but they also argue briefly and unpersuasively that our review is de novo (see Brief of
Appellant at 18, n.10) or for abuse of discretion (see Brief of Respondent at 30-31). We reject
those arguments.
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No. 76577-9-1/11
The parties agree that the evidence before the trial court consisted of:(1)
Alexandra's declaration that, in 2014, Michael stored his guns at the Emerald
Valley Armory;(2) the attached email from Emerald Valley Armory containing an
inventory list of 34 guns;(3) Michael's January proof of surrender form stating
that he had surrendered his firearms;(4)the attached receipt from the Union
County sheriff's office listing three guns;(5) Michael's February declaration
stating that he had surrendered his firearms; and (6)the attached receipt from
the Union County sheriff's office listing 32 guns.7
The inventory from Emerald Valley Armory lists 34 guns by make, model,
and serial number. Michael's February declaration references this inventory and
states that "all firearms listed in [Alexandra's] declaration are surrendered except
for one which was owned by and in the possession of Dylan Hillman." CP at 86.
The January and February receipts from the Union County sheriff, taken
together, list 35 guns that Michael surrendered by make, model, and serial
number. Id. at 59, 88-91. Two of the guns on the Emerald Valley inventory, a
Savage 10 serial number F400513 and an S&W model 28 serial number 100663,
are not on the Union County receipts.
Michael's declaration expressly states that he has surrendered all of the
guns on Alexandra's inventory except one that belonged to someone else. But
7 We note that Michael did not use the AOC forms for his receipts or for his February
proof of surrender. The trial court accepted Michael's documents, stating that there is no
requirement that a restrained person use the AOC forms. While this is true, an alternate form
must contain substantially the same information as the forms developed by the AOC. A valid
proof of surrender must include a declaration that the restrained person has surrendered all
firearms, other dangerous weapons, and any CPL and contain a declaration that the undersigned
certifies under penalty of perjury that the declaration is true and correct. See WPF All Cases 02-
060. A valid receipt must list and describe all surrendered items, identify the authorized receiving
party, and contain a declaration that the undersigned certifies under penalty of perjury that the
declaration is true and correct. See WPF All Cases 02-065.
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No. 76577-9-1/12
the receipts Michael submitted fail to account for two of the guns on Alexandra's
inventory. This evidence does not support a finding that Michael surrendered all
of his firearms.
To argue against this result, Michael asserts that the trial court discounted
the inventory from the Emerald Valley Armory because the evidence was not
properly before the court. We reject this argument. Michael did not challenge the
admissibility of the inventory below and specifically referenced the inventory in
his own declaration. Michael may not challenge the admissibility of the inventory
for the first time on appeal. RAP 2.5(a).
Michael also argues that Alexandra failed to adequately raise the
discrepancy between the inventory and Michael's receipts below and may not
raise the issue for the first time here. The argument is without merit. At the
hearing on February 15, Alexandra asserted that Michael's receipts failed to
account for two guns. She raised the argument below. In addition, the
discrepancy in the evidence is visible on the face of the documents. It did not
require argument.
At oral argument, Michael asserted that evidence supporting the trial
court's finding could be found in Michael's declaration.8 The argument rests on
the final statement of Michael's February declaration: "I have no concealed pistol
8 At oral argument, Michael argued we should leave the finding that he complied with the
order undisturbed because it rests on the trial court's determination of credibility. But the record
does not show that the trial court either heard testimony or made an explicit credibility
determination. Moreover, even if the trial court considered credibility in weighing the parties'
declarations, we nonetheless review its finding for substantial evidence. In re Marriage of
Rideout, 150 Wash. 2d 337, 351-52, 77 P.3d 1174(2003).
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No. 76577-9-1/13
license (it is expired) and no dangerous weapons to surrender." CP at 87. This
statement does not support the trial court's finding.
Pursuant to RCW 9.41.800(3), Michael was ordered to surrender "all
firearms and other dangerous weapons" as well as "any concealed pistol
license." CP at 61. His declaration recounts at length his efforts to surrender his
firearms and states that he surrendered all the firearms on Alexandra's list. The
declaration concludes with Michael's statement that he had no concealed pistol
license and no dangerous weapons. Michael's declaration tracks the statutory
requirement to surrender three categories of items: firearms, other dangerous
weapons, and concealed pistol licenses. His statements concerning "firearms"
and "dangerous weapons" refer to two separate categories. But even if Michael's
declaration that he had "no dangerous weapons" referred to firearms, the
statement does not reconcile the discrepancy between his receipts and the
armory list.
Michael had the burden to prove that he had surrendered all of his
firearms and other dangerous weapons. He submitted a declaration stating that
he had surrendered all of the guns on Alexandra's inventory. His receipts do not
account for two of the guns on the inventory. On this record, we conclude that the
trial court erred in finding that Michael had complied with the order to surrender
weapons. The finding is not supported by substantial evidence. We reverse and
remand for further proceedings.
The parties also raise arguments concerning the show cause hearing.
They dispute whether the defendant in a contempt action may appear through
counsel. At the hearing on February 15, the trial court acknowledged receipt of
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No. 76577-9-1/14
Alexandra's motion for contempt and her memorandum on that issue. The court
did not reach the contempt issue because it found Michael in compliance with the
order to surrender weapons. The court did, however, state that, as in any other
civil matter, a defendant in a contempt proceeding may appear through counsel.
Alexandra contends this was error. She asserts that unlike other civil
proceedings, the defendant in a contempt proceeding must appear personally.
App. Br. at 27. She relies on Burlingame v. Consolidated Mines and Smelting
Ltd., 106 Wash. 2d 328, 335, 722 P.2d 67(1986). But the issue in Burlingame
was notice. Id. at 334-35. The Burlingame court did not address whether a
contemnor may appear through counsel at a show cause hearing. We reject
Alexandra's position as unsupported and, as a result, do not reach Michael's
arguments that the show cause order in this case was insufficient to require his
physical presence.
The court made no further ruling on contempt and, accordingly, we do not
reach the issue here. The motion for contempt is before the trial court on
remand.9
Reversed.
WE CONCUR:
V cik 7 /cd
9 Because it was raised at oral argument and may become an issue on rem d, we note
that a contemnor may assert, as an affirmative defense, that he was unable to comp y or that
failure to comply is based on the Fifth Amendment right against self-incrimination. King v. Dep't of
Social and Health Services, 110 Wash. 2d 793, 804-05, 756 P.2d 1303(1988). In such a case, the
contemnor has the burden to produce evidence as to the claimed affirmative defense and the
burden to persuade the court that the evidence is credible. Id.
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