Many clients charged with Protection Order Violations ask why they must surrender their firearms. They see this government act as unreasonable intrusion of their Second Amendment right to Bear Arms. Under the law, when a protection order is served, the respondent must immediately surrender all firearms, dangerous weapons, and concealed pistol licenses (CPL) to law enforcement. Failure to comply, or possessing firearms while under such an order, is a criminal violation.
In State v. Bell, the WA Court of Appeals recently held a protection order requiring an individual to surrender firearms does not violate the Second Amendment when the court finds the individual poses a clear threat of physical violence to another. The threat does not have to be towards a specific identified person. Due Process only requires notice and an opportunity to be heard. Here, the defendant had an opportunity to be heard but he chose not to appear for the hearing. Thus, there was no Due Process violation.
BACKGROUND FACTS
In October 2021, a temporary protection order issued under former RCW 26.50 was served on Mr. Bell. It prohibited him from contacting his mother and minor child. The temporary order required Bell to “surrender all firearms and prohibit[ed] him from accessing, obtaining, or possessing firearms.” Bell was personally served with a copy of the petition, the temporary protection order, notice of a hearing on November 4, 2021, and an order to surrender weapons. Bell did not appear at the November 4 hearing, nor did he appear at a rescheduled hearing two weeks later.
On November 18, 2021, a superior court commissioner entered a final protection order. Along with prohibiting contact with his mother and child, is also required Bell to surrender weapons and prohibited him from accessing, possessing, or obtaining any firearms. The order requiring Bell to surrender weapons was based on the court commissioner’s findings that Bell “had actual notice, represented a credible threat, and was an intimate partner.” The order also found that Bell “presents a serious and imminent threat to public health or safety, or the health and safety of any individual by possessing a firearm or other dangerous weapon.”
On January 1, 2022, Bell appeared at a QFC kiosk with an AK-47 assault rifle. Bell asked the clerk for cigarettes. When the clerk asked for payment, Bell pointed the rifle at him. Bell admitted at trial that he knowingly possessed the rifle, which he was still carrying when arrested about an hour later. The AK-47 was later test-fired and determined operable.
The State charged Bell with attempted robbery in the first degree and unlawful possession of a firearm in the second degree (UPF-2). The trial was bifurcated. A jury convicted Bell of attempted robbery and found that he had been armed with a firearm. Following a bench trial, Bell was convicted of UPF-2. The trial court found that the protection order met the legal requirements to support his conviction. Accordingly, the trial court concluded that Bell was guilty of UPF-2.
Bell timely appealed to this court raising a facial challenge to the constitutionality of the UPF-2 firearms conviction.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals (the Court) began with sweeping descriptions of the Second Amendment. Among other things, it said the U.S. Supreme Court has construed the Second Amendment as guaranteeing an individual right to possess and carry weapons in case of confrontation. This right extends to the right to possess a handgun in the home for self-defense as well as an individual’s right to carry a handgun for self-defense outside the home. In its analysis, the Court also explained that since the founding, the nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms.
Here, the Court found Mr. Bell’s protection order was consistent with this nation’s tradition of firearm regulation and compatible with the Second Amendment. They also reasoned that Mr. Bell presented a serious and imminent threat to public health or safety, or the health or safety of any individual by possessing a firearm or other dangerous weapon.
Next the Court rejected Mr. Bell’s argument that his conviction should be vacated because the “serious and imminent” finding was entered despite never hearing from Bell. Stated differently, Bell argued that receiving notice and an opportunity to attend the hearing was not enough because there was no back up plan if he was not present in court and surety laws required actually hearing from the accused. In response, the Court rejected these arguments because he failed to appear at his court hearings:
“The court did not hear from Bell only because Bell chose not to appear at either of the two hearings on the protection order. The procedural protections were there, but Bell failed to use them.” ~WA Court of Appeals
Finally, the Court rejected Mr. Bell’s arguments that Washington’s UPF-2 was unconstitutional because it prohibits any and all possession of a firearm, including if done in self-defense of his home:
“Bell was disarmed because he represented a serious and imminent threat to the public. There is no authority that dangerous individuals can retain partial firearm rights even though they are lawfully disarmed.” ~WA Court of Appeals
With that, Mr. Bell’s criminal convictions were upheld.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
