                                                                       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.

                                          5
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


                                         6
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.

                                               7
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.
                                              8
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 Wn.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 Wn.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.



                                           9
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 Wn.2d 689, 711, 344 P.3d 1186 (2015);

Sunnvside Valley Irr. Dist. v. Dickie, 149 Wn.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 Wn.2d at 879 (citing

Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.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.

                                               10
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.
                                                11
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 Wn.2d 337, 351-52, 77 P.3d 1174(2003).


                                                12
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 Wn.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 Wn.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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