In Re The Detention Of L.b. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of No. 82510-1-I
L.B.,
UNPUBLISHED OPINION
Appellant.
BOWMAN, J. — L.B. appeals a 14-day involuntary commitment. She
contends and the State concedes that neither the trial court nor the prosecutor
advised her that a 14-day involuntary treatment order would lead to the loss of
her firearm rights. We accept the concession. Because neither the court nor the
prosecutor complied with the obligation under RCW 71.05.240(2) to notify L.B. of
the effect of involuntary commitment on her constitutionally protected firearm
rights, we reverse and remand to vacate the superior court’s 14-day involuntary
commitment order.
In a 14-day civil commitment proceeding, the court or the prosecutor must
inform the person facing involuntary detention of the potential impact of the
proceeding on firearm rights:
If the petition is for mental health treatment, the court or the
prosecutor at the time of the probable cause hearing and before an
order of commitment is entered shall inform the person both orally
and in writing that the failure to make a good faith effort to seek
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 82510-1-I/2
voluntary treatment as provided in RCW 71.05.230 will result in the
loss of his or her firearm rights if the person is subsequently
detained for involuntary treatment under this section.
RCW 71.05.240(2).1
In In re Detention of T.C., 11 Wn. App. 2d 51, 66, 54-55, 450 P.3d 1230(2019), we reversed and remanded to vacate a 14-day involuntary commitment
order where the trial court2 failed to advise the person facing commitment at the
time of the probable cause hearing and before entry of the commitment order
that the refusal to seek voluntary treatment would lead to the loss of firearm
rights. We also held that lack of compliance with RCW 71.05.240(2) is an error
implicating a constitutional right that the appellant may raise for the first time on
appeal. T.C., 11 Wn. App. 2d at 61-62.
Here, the superior court commissioner entered a 14-day involuntary
commitment order, finding that
[b]efore this order was entered, the court notified [L.B.], orally and
in writing, that the failure to make a good faith effort to seek
voluntary treatment will result in the loss of [L.B.]’s firearm rights if
[L.B.] is detained for involuntary treatment as the result of a mental
disorder.
A superior court judge then affirmed the finding by denying L.B.’s motion to
revise the commissioner’s order.3 See Maldonado v. Maldonado, 197 Wn. App.
1 Emphasis added.
2 T.C. applied former RCW 71.05.240(2) (LAWS OF 2016, 1st Spec. Sess., ch. 29, § 232),
which placed the burden solely on the court to provide the required notice; while the current
statute allows either the court or the prosecutor to provide the requisite notice. See T.C., 11 Wn.
App. 2d at 62; RCW 71.05.240(2).
3 L.B. moved to revise only the finding and conclusion that she was “gravely disabled.”
2
No. 82510-1-I/3
779, 789, 391 P.3d 546 (2017) (“Under RCW 2.24.050, the findings and orders of
a court commissioner not successfully revised become the orders and findings of
the superior court.”).
But the record does not support the commissioner’s finding. As in T.C., 11
Wn. App. 2d at 63, there is nothing in this record to show that the court or
prosecutor advised L.B. orally or in writing at the probable cause hearing or any
time before entry of the commitment order that involuntary detention would
extinguish her firearm rights. At the time of her initial detention, treatment facility
staff gave L.B. a form notifying her of certain rights. That form stated that
detention based on a finding of “a likelihood of serious harm” to herself or others
would lead to a 6-month suspension of her right to possess firearms. But neither
the court nor the prosecutor advised L.B. that she could lose her firearm rights.
And no one told L.B. that she could avoid the loss of rights by obtaining voluntary
treatment or that the effect of a 14-day involuntary commitment order could be
permanent. See RCW 71.05.240(6) (firearm possession prohibition resulting
from involuntary commitment “remains in effect” until a court restores the right).
As the State concedes, the failure to advise L.B. in accordance with the
express provisions of RCW 71.05.240(2) prejudicially affected L.B.’s
3
No. 82510-1-I/4
constitutional right to possess firearms. We reverse and remand to vacate the
14-day involuntary commitment order.4
WE CONCUR:
4 Involuntary civil commitment cases are not moot on appeal even after the commitment
period has ended because such commitments may constitute evidence in subsequent
proceedings. See In re Det. of M.K., 168 Wn. App. 621, 629, 279 P.3d 897 (2012); RCW
71.05.245(3). The State does not argue otherwise or contend that to preserve her claim of error
on appeal, it was necessary for L.B. to raise the firearm notification issue in her motion to revise.
Because we have discretion to address manifest constitutional error raised for the first time on
appeal, see RAP 2.5(a)(3), and accept the State’s concession of error, we need not reach L.B.’s
alternative claim of ineffective assistance of counsel for not claiming the failure to notify issue in
the motion for revision.
4