Kitsap County judges have ruled a state law unconstitutional that requires those accused of domestic violence crimes to affirm they have surrendered their firearms, finding that the law meant to keep guns away from abusers forced defendants to testify against themselves.

The decision has statewide implications and at least one other countymay heedthe reasoning from judges in Kitsaps superior and district courts but municipal courts in the county are split on whether to continue enforcing the law.

Obviously the goal of the statute has, I think, very beneficial ends in mind, said Steve Lewis, a public defender who has led the opposition to how the order to surrender weapons law works. It wants to remove firearms from the hands of people accused of domestic violence. The mechanism it uses, though, clearly violates the Constitution, thats the problem.

Kitsap County courthouse(Photo: Kitsap Sun file)

Though the law has been in effect for years, it was amended in mid-2019 to make judges responsible for enforcement.

Judges can still forbid people accused of crimes not just domestic violence from possessing weapons while their case goes through the system, however, the law Kitsap judges found problematic was how those accused of domestic violence crimes prove they actually surrendered their weapons.

The judges decisions differ in findings as well as detail. Kitsap County Superior Courts February order, signed by two of the county's eight judges,Kevin Hull and Bill Houser, totaled three pages. Kitsap County District Courts order went to 154 pages, including attachments, along with 586 footnotes.

The two decisions, however, reach a common conclusion: The law violates protections in the U.S. and state constitutions, often known as the right to remain silent famously embedded in the Fifth Amendment.

The District Court ruling found the law which is in effect through the entire state has judges force defendants who may own guns into a cruel trilemma where they had to choose between three options.

First, they admit to breaking the law by actually surrendering their weapons because, after the order is signed, a person is instantly forbidden from touching a gun. There is no grace period."

Second, they could perjure themselves if they own guns and lie that they didnt have guns to surrender.

Third, they could be held in contempt of court if they refuse to do either when called inprove they followed the order.

There are no other choices, that is what this statute basically offers to defendants, its the cruel trilemma, Lewis said.

For the District Court case, in January Kitsap County sheriffs deputies went to an apartment off Fairgrounds Road after receiving reports of a domestic violence assault. A woman there said she and Zachary James Marshall, 24, had a child together and had been fighting, according to court documents. The latest argument took a turn and became physical, the woman said, and Marshall was arrested and charged with fourth-degree assault, a misdemeanor. Marshall pleaded not guilty and was issued the order to surrender his weapons or make a statement under oath.

This court declines to force Marshalls guilt from his own lips, Judge Jeff Jahns wrote in the decision. Three of the four judges found the law also violated the Fourth Amendment the prohibition on unreasonable searches and seizures, but Judge Marilyn Paja dissented on that point.

Kitsap County Superior Court judges made a similar ruling in the 2019 violation of a no-contact order case of Nicholas James Kandow, 25. Deputies went to an apartment on McWilliams Road after receiving reports of a disturbance. A woman answered the door with a fresh black eye, a cut lip and blood on her shirt, according to court documents. The woman denied she had been assaulted but deputies found Kandow, who was prohibited from being near the woman, hiding in a closet. He pleaded guilty in February to a felony for violating the court order and was sentenced to 30 months in prison.

Though no onein Kitsap County is known to have been charged with possession of a firearm while trying to surrender it, Lewis said that is beside the point.

Sure you can tell them to take their guns to the sheriff and hope for the best, they probably will not be prosecuted, Lewis said. But (defense attorneys) are not allowed to advise clients to commit a crime, let alone a felony.

Chad Enright, Kitsap County prosecutor, said the purpose of the law is crucial to protect victims of domestic violence from further and greater violence but the law as written has problems.

Those days after being arrested, that is when the situation is particularly dangerous, and making sure people dont have access to firearms during that period of time is important, Enright said. But you still have to recognize people have the right to remain silent, and finding a way to both keep people safe and respect their rights can be difficult, and Im not sure this statute accomplishes that.

Superior Court handles all felonies in Kitsap County, in and outside of cities, but it gets trickier at the misdemeanor level. If a person is accused of a domestic violence misdemeanor outside of Kitsaps four cities such as in unincorporated areas like Silverdale, Kingston or Olalla their case would be heard in District Court.

The four municipal courts in Kitsap County are evenly split on whether to stop issuing the orders Poulsbo and Bainbridge Island will continue to issue the orders, Bremerton and Port Orchard will not creating a patchwork of enforcement.

Bremerton Municipal Court Judge James Docter said though the decision does not directly apply to him he is going to follow it, as Superior Court acts as an appellate court for his decisions.

If I were to rule differently than Superior Court that would get appealed and it would be overturned, Docter said. I feel I am virtually bound by that decision.

However, the same law applies to civil protection orders, which Docter said he would enforce, as the superior and district courts' decision only applies to criminal cases.

Bainbridge Island Municipal Court Judge Sara McCulloch will continue giving the order to surrender weapons on civil and criminal cases, despite the Superior Court ruling, saying the issue has not been raised before her.

The court has to rule on things that are raised before it, McCulloch said. And this has not been raised before me.

One way to get uniformity is to have the state Division II Court of Appeals rule on the matter, and Enright said the office has charged two people for violating the law, a crime called failure to file proof of surrender of firearms. Enright said if those cases go to trial, and the defendants are found guilty, the case could be appealed, which could lead to uniformity in how judges enforce the law.

Outside of Kitsap, its unknown how other counties and cities are following the law. Lewis said King County has a form where defendants can check a box saying they are invoking their Fifth Amendment rights, a process he said Kitsap cribbed to avoid confronting the constitutionality of the law.

However, Enright said in light of the Kitsap judges rulings, he learned Whatcom County officials are reconsidering how judges there enforce the law. A decision from an appeals court could get all judges on the same page, but Enright said a true fix will have to come from the Legislature.

The current situation is pretty untenable, Lewis said.

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Kitsap judges: Law to help keep guns away from abusers violates the Fifth Amendment - Kitsap Sun