State v. Flannery
| Decision Date | 22 November 2022 |
| Docket Number | 55682-1-II,55689-8-II |
| Parties | STATE OF WASHINGTON, Appellant, v. DWAYNE ALLEN FLANNERY, Respondent. |
| Court | Washington Court of Appeals |
The State appeals the trial court's orders vacating a firearm surrender order and dismissing Dwayne A. Flannery's charge for failure to comply with the former firearm surrender order. The State argues that the trial court erred by declaring the firearm surrender statutory scheme unconstitutional as violating the Fourth and Fifth Amendments to the United States Constitution and Washington Constitution article I, sections 7 and 9; vacating the surrender order and dismissing Flannery's charge for failure to comply with that order.
We hold that the trial court did not err by declaring the former firearm surrender statutory scheme at issue unconstitutional. Accordingly, we affirm the trial court's orders vacating the firearm surrender order and dismissing Flannery's criminal charge for failure to comply with the firearm surrender order.
The State charged Flannery with second degree assault, and the trial court entered a no-contact order pursuant to RCW 10.99.040(2)(a).[1] The trial court also entered an order requiring Flannery to surrender any firearms. When Flannery did not comply with the firearm surrender order, the State filed a criminal charge against Flannery for non-compliance. Flannery moved to vacate the surrender order and dismiss the added criminal charge. Flannery's briefing to the trial court contended that the surrender order violated his privilege against self-incrimination and his right to be free from unreasonable searches and seizures.
When a trial court entered a protection order against a person, the court was authorized, in certain circumstances, to prohibit that person from having firearms and could require the person to surrender their firearms under former RCW 9.41.800 (2019). In 2021, the legislature overhauled the statutory scheme for various types of protection orders through House Bill 1320 and included the addition of an immunity provision to the firearm surrender statutory scheme. Laws of 2021, ch. 215. The immunity provision under the new statutory scheme applies to surrender orders issued pursuant to RCW 9.41.800 and states:
[T]he act of voluntarily surrendering firearms or weapons, or providing testimony relating to the surrender of firearms or weapons, pursuant to such an order, may not be used against the respondent or defendant in any criminal prosecution under this chapter, chapter 9.41 RCW, or RCW 9A.56.310.
Laws of 2021, ch. 215, § 75. The legislature also added, under the heading "miscellaneous," the following:
Nothing in this act affects the validity of protection orders issued prior to the effective date of this section under chapter 74.34 RCW or any of the former chapters 7.90, 7.92 7.94, 10.14, and 26.50 RCW. Protection orders entered prior to the effective date of this section under chapter 74.34 RCW or any of the former chapters 7.90, 7.92, 7.94, 10.14, and 26.50 RCW are subject to the provisions of this act and are fully enforceable under the applicable provisions of sections 56 through 60 of this act and may be modified or terminated in accordance with the applicable provisions of sections 61 through 65 of this act.
Laws of 2021, ch. 215, § 65 (emphasis added). Most of the act, including the relevant provisions, took effect on July 1, 2022. Laws of 2021, ch. 215, § 87.
Generally, we presume that statutes operate prospectively unless "'(1) the Legislature explicitly provides for retroactivity, (2) the amendment is curative, or (3) the statute is remedial.'" Kellogg v. Nat'l R.R. Passenger Corp., 199 Wn.2d 205, 220, 504 P.3d 796 (2022) (internal quotation marks omitted) (quoting Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 223, 173 P.3d 885 (2007)). "Curative" means that it "'clarifies or technically corrects an ambiguous statute.'" Id. (internal quotation marks omitted) (quoting 1000 Va. Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 584, 146 P.3d 423 (2006)). "Remedial" means that it "'relates to practice, procedure or remedies, and does not affect a substantive or vested right.'" Id. (internal quotation marks omitted) ).
On the first prong of the retroactivity analysis, the legislature did not explicitly provide for retroactivity. The retroactivity provision states that protection orders entered before the effective date are subject to the provisions of the act. It does not state that surrender orders entered before the effective date are subject to the provisions of the act. Additionally, Flannery's no-contact order and corresponding firearm surrender order were issued pursuant to chapter 10.99 RCW, not one of the chapters listed in the retroactivity provision above. The relevant portion of chapter 10.99 RCW relates specifically to individuals who are charged with a crime involving domestic violence and states that courts authorizing pre-trial release shall determine if the defendant should have a no-contact order with the victim. RCW 10.99.040(2)(a). It provides that, in issuing the no-contact order, the court shall consider the firearm surrender statutory provisions (RCW 9.41.800) and shall order the defendant to surrender firearms. RCW 10.99.040(2)(b). In contrast, the chapters listed in the retroactivity provision relate to protection orders issued after a victim petitions for them. Therefore, the legislature did not explicitly provide for retroactive application to Flannery's case.
On the "curative" prong, there is no indication in the session law text that the amendment was meant to clarify or technically correct an ambiguous statute.
On the "remedial" prong, to be remedial, the provision cannot affect a substantive or vested right. The new provision provides immunity, which affects a substantive or vested right.
Therefore, because (1) the legislature did not explicitly provide for retroactivity, (2) the immunity provision is not curative, and (3) the immunity provision is not remedial, the newly enacted immunity provision is not retroactive. The applicable statute here is former RCW 9.41.800.
Thus, the list of authorized orders in former RCW 9.41.800(1) included stalking protection orders (former chapter 7.92 RCW, repealed by Laws of 2021, ch. 215, § 170), sexual assault protection orders (former RCW 7.90.090, repealed by Laws of 2021, ch. 215, § 170), harassment protection orders (RCW 9A.46.080), temporary anti-harassment protection orders (former RCW 10.14.080, repealed by Laws of 2021, ch. 215, § 170), no-contact orders in criminal cases involving domestic violence (RCW 10.99.040 and .045), restraining orders in dissolution proceedings (RCW 26.09.050 and .060), restraining orders resulting from child custody proceedings (former RCW 26.10.115, repealed by Laws of 2021, ch. 215, § 170 and RCW 26.26B.020), petitioner-initiated domestic violence protection orders (former RCW 26.50.060 and .070, repealed by Laws of 2021, ch. 215, § 170), and restraining orders issued in proceedings to adjudicate parentage (RCW 26.26A.470).
Courts entering these protection orders were permitted to order a party to surrender their firearm in a variety of circumstances. Courts were permitted to require a party to surrender firearms upon a showing by a preponderance of the evidence but not by clear and convincing evidence that the party used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or was ineligible to possess a firearm. Former RCW 9.41.800(2). Courts were also permitted to order a temporary firearm surrender without notice to the other party if it found that the time for response could result in irreparable injury. Former RCW 9.41.800(4). And courts could order a party to surrender their firearms if it found that their possession of a firearm presented a serious and imminent threat to public health or safety, or to the health or safety of any individual. Former RCW 9.41.800(5). But courts were required to order a party to surrender their firearms during any period of time that a person was subject to one of the authorized protection orders that explicitly prohibited the use of physical force against an intimate partner or child. Former RCW 9.41.800(3)(c)(ii).
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