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.
Read or Share this story: https://www.kitsapsun.com/story/news/2020/07/08/kitsap-judges-law-help-keep-guns-away-abusers-violates-fifth-amendment/5394659002/
Here is the original post:
Kitsap judges: Law to help keep guns away from abusers violates the Fifth Amendment - Kitsap Sun
- VANDA Pharmaceuticals States a Fifth Amendment Claim against the Government for Taking a Trade Secret - Trade Secrets Trends - February 13th, 2024 [February 13th, 2024]
- Attorneys argue shooters Fifth Amendment rights on the 4th day of the Jennifer Crumbley trial - Detroit News - January 27th, 2024 [January 27th, 2024]
- Judge will not allow Michigan school shooter to testify in mother's trial if he invokes the Fifth Amendment - AppleValleyNewsNow.com - January 27th, 2024 [January 27th, 2024]
- Shamoon v. Resideo: Obviousness affirmed - Patently-O - August 12th, 2023 [August 12th, 2023]
- Billings County sued over eminent domain as bridge dispute rekindles - Bismarck Tribune - August 12th, 2023 [August 12th, 2023]
- 'Tyler' and a Call for Reform of the New Jersey Tax Foreclosure ... - Law.com - August 12th, 2023 [August 12th, 2023]
- "Like fatter Tony Soprano Attending the Arraignment and "Effect[ing ... - Emptywheel - August 12th, 2023 [August 12th, 2023]
- Call to faith-based leaders to help end violence; Parents need to pay ... - Capital Gazette - August 12th, 2023 [August 12th, 2023]
- "Stunning development": Experts say Trump target letter is surest ... - Salon - June 12th, 2023 [June 12th, 2023]
- LIV, PGA drop a bombshell on Washington - POLITICO - June 12th, 2023 [June 12th, 2023]
- Congressman Matt Gaetz Introduces Resolution to Hold Former ... - Congressman Matt Gaetz - June 12th, 2023 [June 12th, 2023]
- It's time to end home equity theft in Maine - Bangor Daily News - June 12th, 2023 [June 12th, 2023]
- Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity - The Energy Law Blog - May 28th, 2023 [May 28th, 2023]
- Ninth Circuit Finds that Criminal Reentry Provision Not Driven by ... - Immigration Blog - May 28th, 2023 [May 28th, 2023]
- Ken Paxton Impeached on 20 Charges Including Bribery ... - The Texan - May 28th, 2023 [May 28th, 2023]
- Simply losing it: Bitter fight brews over federal judges forced retirement effort - Yahoo News - May 28th, 2023 [May 28th, 2023]
- Worth County Board of Supervisors Meeting (LIVE) - KIOW.com - May 28th, 2023 [May 28th, 2023]
- Trump Organization finishes last in brand reputation survey for second straight year - The Hill - May 28th, 2023 [May 28th, 2023]
- They held down a Black teen who tried to shoplift. He died from ... - Wisconsin Examiner - May 28th, 2023 [May 28th, 2023]
- What is the Fifth Amendment, and how has it been used? : NPR - March 31st, 2023 [March 31st, 2023]
- Tmc the Metals Company Inc. Enters into Fifth Amendment to Pilot Mining Test Agreement and Third Amendment to Strategic Alliance Agreement, Which Is... - February 20th, 2023 [February 20th, 2023]
- Interpretation: The Fifth Amendment Due Process Clause | Constitution ... - January 31st, 2023 [January 31st, 2023]
- Fifth Amendment invoked to the point of 'unintentional hilarity' by Jan ... - December 26th, 2022 [December 26th, 2022]
- Why Did Trump Plead The Fifth Amendment?What We Do Know ... - Newsweek - October 25th, 2022 [October 25th, 2022]
- Understanding the Fifth Amendment Right to Remain Silent - October 19th, 2022 [October 19th, 2022]
- US Government for Kids: Fifth Amendment - Ducksters - October 19th, 2022 [October 19th, 2022]
- Donald Trump loves to plead the Fifth. It won't save him this time. - MSNBC - October 19th, 2022 [October 19th, 2022]
- Everything You Ever Wanted to Know About Georgia Special Purpose Grand Juries But Were Afraid to Ask - Lawfare - October 19th, 2022 [October 19th, 2022]
- Citing double jeopardy, Fargo man who killed 14-year-old Jupiter Paulsen wants murder conviction dropped - INFORUM - October 19th, 2022 [October 19th, 2022]
- Nicki Clyne: What Happened to NXIVM Member and Where Is She Now? - Newsweek - October 19th, 2022 [October 19th, 2022]
- New York AG Asks Judge to Prevent Trumps From Hiding Assets Mother Jones - Mother Jones - October 15th, 2022 [October 15th, 2022]
- Trump Will Finally Have to Face Questions About Alleged Rape, Judge Rules - VICE - October 15th, 2022 [October 15th, 2022]
- 'In the Heat of the Night' star Lee Grant on working with Sidney Poitier and being blacklisted by Hollywood - Yahoo Entertainment - October 15th, 2022 [October 15th, 2022]
- THE OTHER SIDE: Orange Jesus took the Fifth - theberkshireedge.com - October 6th, 2022 [October 6th, 2022]
- BNP Paribas : 5th amendment to the 2021 Universal Registration Document - Marketscreener.com - September 29th, 2022 [September 29th, 2022]
- Tlingit tribal member shares his story of helping the Yakamas get Mount Adams back - Yakima Herald-Republic - September 29th, 2022 [September 29th, 2022]
- Trump Pleading the Fifth Might Have Doomed Him in Civil Case - Newsweek - September 27th, 2022 [September 27th, 2022]
- Why is Kevin McCarthy Promising to Remove Parents from the Terrorist Watch List? - Daily Kos - September 27th, 2022 [September 27th, 2022]
- Alex Jones said he may have to plead the Fifth as he's set to testify - Insider - September 27th, 2022 [September 27th, 2022]
- USS Fitzgerald and ACX Crystal collision: The Fifth Circuit Court of Appeals delineates the reach of personal jurisdiction - GARD - September 9th, 2022 [September 9th, 2022]
- Trump investigation tracker: Keeping up with Trump's many legal issues - Grid - September 9th, 2022 [September 9th, 2022]
- Bo Dukes's conviction to stand following motion for new trial - Douglas Now - September 9th, 2022 [September 9th, 2022]
- VAIL RESORTS INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - September 9th, 2022 [September 9th, 2022]
- It's brother vs. brother at trial over NYC slaying of mobbed-up dad, 'Sally Daz' Zottola - New York Post - September 9th, 2022 [September 9th, 2022]
- Letters: Boater offers different perspective on the Playpen - Chicago Tribune - September 9th, 2022 [September 9th, 2022]
- Michael Flynn: From Government Insider to Holy Warrior - PBS - September 9th, 2022 [September 9th, 2022]
- Hamel found guilty of Athol murder, sentenced to life in prison - The Recorder - September 9th, 2022 [September 9th, 2022]
- Biden Slowly Winning LBJ- and FDR-Like Praise As Legislative Victories Mount - Seattle Medium - September 9th, 2022 [September 9th, 2022]
- Vice Principals, the Fifth Amendment, and Negative Inferences - JD Supra - August 30th, 2022 [August 30th, 2022]
- PERMA FIX ENVIRONMENTAL SERVICES INC : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - August 30th, 2022 [August 30th, 2022]
- Letter: Invoking the Fifth Amendment is not an admission of guilt - INFORUM - August 29th, 2022 [August 29th, 2022]
- Taking the Fifth, FBI attacked: 5 takeaways of Gov. Whitmer kidnap trial - MLive.com - August 29th, 2022 [August 29th, 2022]
- How much money could Donald Trump have to pay in fines if his businesses are penalized? - AS USA - August 29th, 2022 [August 29th, 2022]
- A high stake debate and tension at the GOP convention: Your guide to Michigan politics - MLive.com - August 29th, 2022 [August 29th, 2022]
- We Can Be Framers Too - The Atlantic - August 29th, 2022 [August 29th, 2022]
- For 38 Years of American History, There Has Been No Vice President - History News Network - August 8th, 2022 [August 8th, 2022]
- Emmett Till is gone. The quest for justice lives on. - New York Daily News - August 8th, 2022 [August 8th, 2022]
- 'A bold-faced LIE': St. Louis mayor blasts Black police officer groups criticism of oversight bill - KSDK.com - August 8th, 2022 [August 8th, 2022]
- He has done more to further the cause of hate in the US than almost anyone: the rise and fall of Alex Jones - The Guardian - August 8th, 2022 [August 8th, 2022]
- Even the District Attorney Believed Joaquin Ciria Was Innocent. Why Did It Take So Long to Set Him Free? - POLITICO - August 8th, 2022 [August 8th, 2022]
- Understanding the Constitution: Why It Doesn't Protect the Unborn - The Epoch Times - August 6th, 2022 [August 6th, 2022]
- Former fugitive charged with rape in Deerfield case demands new lawyer - The Recorder - August 6th, 2022 [August 6th, 2022]
- Sources: Donald Trump Jr., Ivanka Testify Before NY AG's Office in Finance Probe, Neither Pleads the 5th - NBC New York - August 6th, 2022 [August 6th, 2022]
- Time running out to try Catherine Hoggle for the disappearance, suspected murder of her 2 kids - WUSA9.com - August 6th, 2022 [August 6th, 2022]
- Trump faces uphill fight on executive privilege in DOJ probe - POLITICO - August 6th, 2022 [August 6th, 2022]
- Charles Milliken: Defining what exactly is a 'right' - Monroe Evening News - July 31st, 2022 [July 31st, 2022]
- How grand juries work and why Jan. 6 prosecutors are relying on them - Salon - July 31st, 2022 [July 31st, 2022]
- Roe, Dobbs and women's rights New York Daily News - New York Daily News - July 31st, 2022 [July 31st, 2022]
- Partisan congressional hearings are a threat to all citizens - Monroe Evening News - July 31st, 2022 [July 31st, 2022]
- 9 years after a UIW police officer shot student Cameron Redus, the case is going to trial - San Antonio Express-News - July 31st, 2022 [July 31st, 2022]
- Outcome of first kidnapping trial can't be used as evidence in second trial, judge rules - Michigan Radio - July 31st, 2022 [July 31st, 2022]
- Washington County woman held in death of 5-year-old son - Herald-Mail Media - July 31st, 2022 [July 31st, 2022]
- What Did the Dissenting Justices Think About the Power of Military Authorities & More - The Soldiers Project - July 31st, 2022 [July 31st, 2022]
- Whipping the votes in Suffolk - Newsday - July 31st, 2022 [July 31st, 2022]
- If Trump Takes the Fifth, Is He Guilty? - Law & Crime - July 29th, 2022 [July 29th, 2022]
- Anambra House of Assembly Passes 5th Amendment Bills - TVC News - July 29th, 2022 [July 29th, 2022]
- How do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020... - July 29th, 2022 [July 29th, 2022]
- We need to hear the unbiased story - Villages-News - July 29th, 2022 [July 29th, 2022]
- Outcome of first kidnapping trial can't be used as evidence in second trial, judge rules - WKAR - July 29th, 2022 [July 29th, 2022]
- LOVERRO: The weight on Rivera's shoulders is inevitably about much more than football - Washington Times - July 29th, 2022 [July 29th, 2022]