Some Washington judges aren’t ordering accused abusers to surrender guns. A new court ruling could change that.

In summer 2022, Brandon Montesi told a King County judge that he had no guns. His ex-wife, afraid for the lives of her family members and herself, said it was a lie.

Montesi’s ex-wife had sought a domestic violence protection order against him, alleging in a court petition that he arrived at her home in a rage one spring day, swinging an ax and threatening to kill her. He warned that she should “think twice before messing with him” because he has a “safe full of guns,” she recalled. 

A court commissioner ordered Montesi to turn his firearms over to the King County Sheriff’s Office. Despite the court order, a judge found that about 13 of his firearms remained unaccounted for — assault rifles, hunting rifles, handguns, a shotgun and an AR-15. 

Instead of surrendering the missing guns, Montesi argued that Washington’s firearm surrender law requiring him to do so violates his Fourth and Fifth Amendment protections against self-incrimination and unreasonable search and seizure, citing a November 2022 Washington Court of Appeals ruling known as the Flannery decision.

The Flannery decision, which said an earlier version of the state’s firearm surrender law was unconstitutional under the Fourth and Fifth Amendment, has been similarly cited by judges throughout Washington as preventing them from ordering alleged abusers to give up their weapons, court records show.

Now, the barriers created by Flannery could be knocked down. In one of the clearest rulings to date on the constitutionality of Washington’s firearm surrender law in protection order cases, the state Court of Appeals rejected Montesi’s argument, concluding that the law is constitutional. 

While federal law prohibits some alleged domestic abusers from having guns, Washington — along with 21 other states — has gone a step further, requiring judges to order people subject to certain domestic violence protection orders to surrender their firearms to law enforcement. Victim advocates are hopeful that the recent ruling, issued on June 30, will prompt judges to enforce the law. But so far, legislative efforts to do the same have had limited success. 

Even after state lawmakers updated the firearm surrender law in 2021 and again in 2023 with a “Flannery Fix” aimed at resolving Flannery’s self-incrimination concerns, some judicial officers — including all of those in the Pierce County Superior Court — still aren’t issuing firearm surrender orders in domestic violence protection order cases, according to a recent poll of Washington’s 39 superior courts conducted by InvestigateWest. The Cowlitz County Superior Court had not been issuing firearm surrender orders until recently, when some judicial officers began ordering surrenders again on a case by case basis due to the Montesi decision.

“The bench is and will continue to be discussing the Montesi decision,” Cowlitz County Superior Court Administrator Danyel Paul wrote in a statement to InvestigateWest.

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Some superior courts, including Adams County and Grays Harbor County, responded that they do issue firearm surrender orders, but sparingly. In Clark County, Presiding Judge Derek Vanderwood said the superior court began issuing the orders again in January — a few months after a Vancouver mother of three, Carissa Larkin, was shot and killed by her ex-fiance. Larkin had obtained a protection order against her abuser, but the court hadn’t ordered him to turn in his guns due to the Flannery decision, The Columbian reported.

Montesi, who declined to comment through his attorney, is now asking the state Supreme Court to hear his case. If the ruling stands, victim advocates, attorneys and legal experts say it would reaffirm an assertion that they’ve been making for years: that the Flannery decision, which centered on a criminal assault case and an outdated state law, should never have been broadly applied to civil protection order cases.

“I think the Flannery decision, there was some room for interpretation about what they meant by it. I think that’s why you saw different trial courts making different decisions,” said King County Superior Court Presiding Judge Ketu Shah. The King County court has continued issuing firearm surrender orders after Flannery. “In other jurisdictions, there’s stronger passion around firearm rights and Second Amendment rights, and so they want to litigate that more and see where the limits are.” 

Shah noted that the Montesi ruling — decided in a civil protection order case — gives courts more direct legal guidance.

“Montesi is pretty clear. It's right on the point of what these rights are and whether they infringe on those rights. And they found the statute does not infringe on those rights,” he said.

For some attorneys and victim advocates, courts’ decisions not to issue firearm surrender orders seem to have more to do with political will than with upholding the law.

“What it looked like to me that the courts were doing was just saying, ‘Oh, sorry, it’s out of my hands. Flannery prevents me from issuing a weapon surrender,’” said Benjamin Gould, an attorney who represented Montesi’s ex-wife. “You are, in effect, completely ignoring Washington law as passed by the Legislature. And that is very troubling.”

A controversial legal analysis

Ever since the Washington State Legislature unanimously passed a 2014 law to remove guns from the hands of domestic abusers, that law has drawn constitutional challenges. 

The firearm surrender law requires courts to order the relinquishment of guns in certain circumstances, such as when an individual has a domestic violence protection order against them and is believed to be a threat to the protected person or their child’s safety. Judges have discretion in other circumstances, like when there’s evidence that there will likely be a serious and imminent threat to a person’s health and safety without a surrender order.  

One of the first major rulings on the state law’s constitutionality came in 2022. Dwayne Flannery, a Kitsap County man accused of beating and choking his girlfriend, argued that an order to surrender weapons would force him to illegally search his own home for guns and potentially incriminate himself by admitting to having firearms, which he wasn’t allowed to have under a no-contact order. The Court of Appeals agreed with Flannery and dropped the weapons surrender order.

Judges across Washington immediately raised questions about how the Flannery decision would impact civil protection order cases. Unlike no-contact orders, which are issued in criminal matters, civil protection orders are filed by individuals seeking to keep alleged abusers away from them, even if no criminal charges have been filed. To be granted a protection order, victims must only demonstrate that it’s more likely than not that the abuse occurred.

Upon a judge’s request, a team of attorneys at the Washington State Administrative Office of the Courts, which supports judges across the state, sent two memorandums analyzing the Flannery decision to Cowlitz County judges. Although the office says the memos are meant to be confidential and aren't official guidance for the courts as a whole, the analysis was widely circulated among attorneys and included in a public 2024 State of the Judiciary report. 

The memos concluded Washington's firearm surrender law likely violates the Fourth and Fifth Amendments of the U.S. Constitution. An immunity provision added to Washington’s firearm surrender law in 2021 likely would not provide "complete protection" from self-incrimination because it only protects against prosecution for certain crimes, the analysis says. It also likened surrender orders to a “warrantless search” under the Fourth Amendment — a characterization that many attorneys representing domestic violence victims disagree with.

“You’re complying with a court order. In this case, the court order says, ‘Go get your guns. You can’t have them.’ But they’re calling that an unlawful search, which is a very creative interpretation,” said Washington state Rep. Lauren Davis, D-Shoreline, who sponsored the 2023 Flannery Fix bill. 

Karla Carlisle, a managing attorney with the Northwest Justice Project, a nonprofit legal aid program in Washington, said constitutional protections against unreasonable searches are aimed at preventing the government from violating a person’s reasonable expectation of privacy — not at individuals who are asked to turn over their firearms to ensure a victim’s safety.

“No search occurs when a trial court grants an order to surrender weapons,” Carlisle argued in a July 2023 appellate court filing. “The orders are served the same way any other legal process is served, and to the extent a respondent locates and surrenders firearms from their own home, there is no governmental intrusion into the privacy of the person’s home.”

Yet following the memos’ release, Carlisle said she saw a “wave across the state” of courts refusing to issue weapon surrender orders.

“Those memos were very damaging because I think they came to trial court judges with the authority and approval from the Administrative Office of the Courts,” she said. “So a lot of judges, I think, took that for face value and didn’t do their own analysis.”

In Cowlitz County, judicial officers started crossing out the weapons surrender section of the protection order and penciling in “State v. Flannery.” A Benton County judge rescinded and terminated a firearm surrender order that had been granted to a domestic violence survivor the year before, citing Flannery.

The Pierce County Superior Court edited its protection order paperwork to remove all firearm surrender language. Now when a person requests a firearm surrender, the court instead gives them a document titled, “Findings on Weapons Surrender.” It informs them that the court is not issuing surrender orders because doing so would “by its very nature” subject the respondent to potential self-incrimination and unreasonable searches and seizures.

To ensure compliance with the law, the Flannery Fix also requires the Administrative Office of the Courts to report annually on the number of firearm surrender orders issued by each court. But the office is still not doing so. A disclaimer on the office’s website explains that because data is unevenly collected across jurisdictions, the office believes that reports “would not accurately convey the reality of enforcement practices across the state.” To address this, the office says it is overhauling the way that it receives and reports protection order data.

Davis said she plans to continue working on legislation to protect domestic violence survivors from gun violence. But there’s only so much that legislators like her can do, she added.

“For the most part, we actually have pretty solid words on paper,” Davis said. “They’re just not being followed.”

The Montesi decision

Attorneys like Carlisle and Gould are hopeful that courts will see the Montesi ruling as limiting the Flannery decision’s application in civil protection order cases. The Pierce and Cowlitz County superior court benches are now reviewing the Montesi decision to determine its impact on firearm surrender orders going forward, according to the courts’ administrators.

Anne Levinson, a retired Washington judge who has helped author several state bills to protect domestic violence survivors, said the decision gives judges a clearer guide than Flannery for how to handle firearm surrender requests in civil cases. 

“The Montesi case is a more current case, more on point for orders that are issued as part of the civil protection order process,” Levinson said. “It can and should be applied by courts across the state.”

In addition to the Fourth and Fifth Amendment issues, the state Court of Appeals also rejected Montesi’s argument that the weapons surrender statute infringes upon Montesi’s right to bear arms. This issue was directly addressed in a June 2024 U.S. Supreme Court decision, United States v. Rahimi, which ruled that a federal law prohibiting people subject to domestic violence restraining orders from possessing firearms is constitutional under the Second Amendment.

Still, it remains to be seen whether the Montesi ruling will clear the path for weapons surrender orders in Washington. Although the ruling affirms that the state law is constitutional, it’s only binding for lower courts in Division I of the Court of Appeals, where the decision took place. This includes King, Snohomish, Skagit, Island, San Juan and Whatcom counties. For counties outside of this division, the ruling can provide guidance for judicial officers but does not necessarily need to be followed. The Flannery decision, meanwhile, took place in Division II, which covers several of the superior courts that had stopped issuing firearm surrender orders, including Pierce, Cowlitz and Clark. 

Other similar cases involving firearm surrender orders are also pending before the Court of Appeals. If those decisions conflict with the Montesi decision, that could set up a legal dispute for the Washington Supreme Court to resolve. But for that to happen, the state Supreme Court would first have to agree to hear a case. It has so far declined at least two motions filed by women fleeing their intimate partners — including one by Montesi's ex-wife — that argued the life-or-death urgency of the issue warrants direct intervention by the high court. 

On July 31, Montesi tried again to put the issue in front of the state Supreme Court, arguing that the appellate court made a mistake by ruling that the Legislature’s Flannery Fix resolves the law’s Fourth and Fifth Amendment violations. The high court has not yet decided whether it will hear the case.

Mary Welch, an attorney and statewide advocacy counsel for the Northwest Justice Project, said that while she’s optimistic about the Montesi ruling, she’s remaining vigilant of how future courts may act. She initially thought that the constitutionality concerns over Washington’s firearm surrender law would be resolved with the U.S. Supreme Court’s Rahimi decision, until judges began using Flannery to justify not issuing the orders. 

“I kind of feel like this is just going to be a continuous battle,” Welch said. “It’s whack-a-mole. We're gonna knock Flannery down for sure — something else is gonna pop its head up, and then we’re gonna have to do something about that.”