Webinar presenters Sandra Shanahan and Kimberly Wyatt of the Domestic Violence Regional Firearms Enforcement Unit answered a number of your questions after their webinar, "Domestic Violence and Firearm Relinquishment: from Honor System to Actual Enforcement." Here are some of their answers.
Audience Question: What is the court orders problem solver?
Sandra Shanahan: I'm glad you asked about this position. The title of the position is self-explanatory but the details of the role require much more explanation. When our workgroups (addressing implementation and enforcement of the firearm laws) began meeting, an overwhelming complaint we received from our law enforcement partners was that they frequently receive orders that have some kind of technical flaw that make them impossible to enter, serve, and often, enforce. In response to hearing that feedback and knowing that there wasn't a mechanism in place to remedy those orders on their own, we specifically scoped and designed a position whose sole function would be to serve as a liaison for law enforcement to address the technical issues that interfere with the entry and service of orders.
We are so fortunate that one of our former paralegals in the King County Prosecutor’s Office applied for the position. She came into the role with 15 years’ experience working directly with courts and law enforcement and was able to hit the ground running. She works very closely with law enforcement-based records managers and data unit’s so when they receive an order that, for example, has an expiration date that is the same as today's date or a missing identifier, or something that is technically flawed, then it is her role to work with the court to try and remedy those problems. While some situations require the actual parties on the case to go back to the court to officially amend the order, many of the problems she encounters are technical in nature and are able to be addressed through her position. This was an important enhancement for law enforcement and a priority for our Unit. We know that any delay in the entry and service of a protection order can put a survivor at greater risk of harm.
Audience Question: You talked about different people involved in your unit, have you considered, or do you have somebody from probation or parole? Or have you involved somebody from probation or parole? Are there future plans to involve somebody from that arena?
Sandra Shanahan: I think that's a really great suggestion, I believe we had probation involved in our workgroups but we did not contemplate including them in the unit in its first iteration because we are trying to work further upstream. We have learned that probation is a critical partner on our cases because they are doing the long-term support or sometimes, temporary supervision of individual defendants and that they are an important player. Kim and I have presented to the King and Snohomish County Departments of Corrections to meet with Supervisors and share information about our work in the Unit. If the individual from the audience asking the question has more ideas about the role of probation in the unit, I would love for them to reach out to me. I think that's fantastic.
Audience Question: How do you address the storage of those firearms that have been surrendered or that you have confiscated? What happens to those firearms?
Sandra Shanahan: Storage was a big issue that came out in the work groups. Law Enforcement was concerned that they would not be able to take in all of the different firearms for all of the orders being entered. So far, law enforcement is figuring out strategies to store. We created a video for restrained parties that shows the exact process and what it looks like to turn your firearm into law enforcement. The firearm(s) are received and securely stored in secure packaging with tagging. Because these are civil protection orders, many of the firearms may go back at the end of the year when the order expires. Law enforcement is storing them with the full understanding that they are likely going to be returning them once the person becomes eligible to possess again. I haven't heard any concerns from our Unit partners, the Seattle Police Department or King County Sheriff’s Office expressing concern about storage at this time.
Kimberly Wyatt: I think there are bigger issues related to the removal of ammunition because it may not be specifically noted for removal in either the domestic violence protection order or the Extreme Risk Protection Order. Certainly, law enforcement can remove it if it is in the victim's home and they want it be removed. We have had cases involving thousands of rounds of ammunition. We haven't quite fully figured out that part of it out yet but the firearms storage have not turned out to be an issue.
Audience Question: Did you also reach out to the legal community, to the divorce attorney community, did you involve them as well so they can walk their clients through these discussions?
Sandra Shanahan: That is not something we necessarily did upfront as we were developing our unit but knew it was a group we needed to connect with. We actually have a meeting scheduled in early October to present to our private family law bar. We specifically want to share information about the firearm laws (RCW 9.41.800 and RCW 7.94) and how clients who are restrained by these orders can comply with them and how clients who are protected by them can now navigate the firearm piece. What we have found in our first several months of practice is that the law has changed but that not everybody has been informed about how those changes apply to practice. Kim and I presented two trainings earlier in the year through Unified Family Court that specifically included family law practitioners, judicial officers, social workers, advocates, and any other disciplines who wished to attend. We are still early in our practice and are continuing to work through the groups we have specifically targeted for outreach and training and have been regularly training when asked by different groups or organizations. Awareness of the changes in laws and best practices around implementation and enforcement are critical aspects of our Unit’s work.
Audience Question: Could you touch on briefly maybe some of the challenges on getting the law passed?
Sandra Shanahan: Passage of ESHB 1840 (RCW 9.41.800) was a priority for our state domestic violence coalition for a full 10 years. My colleague, David Martin and I, went down to testify in support of the bill the year before it actually passed. We had every reason to believe it was going to pass but it didn’t. That year, a concern had been raised about the fact that the existing pattern forms for domestic violence protection orders did not have a “check box” option for the credible threat finding. The concern was that by having the court enter a protection order, they were automatically making a finding that the person was a credible threat. Those opposed to the legislation wanted the Judicial Officer to have discretion around whether the person was a credible threat or not.
We have had federal laws for decades that prohibited domestic violence offenders (subject to certain protection orders) from possessing firearms. We also even locally had a motion and a petition that survivors of domestic violence could file asking the court to order the other party to surrender the firearm. The problem was, without a similar state law barring possession, petitioners were essentially having to “stick their necks out” and request removal of the firearm without any guarantee of enforcement. It was only until after the law passed unanimously in 2014 that petitioners felt safer seeking the relief. It has been a very long road. We felt great relief when the law passed only to realize shortly thereafter that the law alone is not enough. As our elected prosecutor Dan Satterberg has said, “Laws don't implement themselves”. I am grateful that our Office and region has really leaned into this issue. We are working hard to fulfill the promise to our community of survivors that we will take every action legally possible to remove the firearms during periods of heightened risks.
Audience Question: Would you mind sharing a copy of the letter that you talked about using as well as the video that you used with other areas or other jurisdictions who are thinking about working on programs like this?
Kimberly Wyatt: Yes, we are happy to share those resources. The video is really helpful in explaining the process so that restrained parties understand what they need to do to be in compliance with the order. It lays out the steps in a visual way which is very helpful for visual learners. It also shows some of the most common forms someone might be served with to further demystify the process.
Audience Question: What is the definition of ‘other dangerous weapons'? What does that constitute?
Kimberly Wyatt: The courts, at the time they are entering the Order to Surrender Weapon, have the authority to include any other weapons that a victim expresses concern about. In some cases, victims have been threatened with weapons other than firearms, like a machete, a specific tool or crossbow. If the person has a specific concern about a weapon other than a firearm, then the court can include that item in the order for law enforcement to remove. We will be upfront and tell you that our primary focus is on the firearms. It's really hard to go to the court and say you need to surrender all of your knives knowing that the individual can go right out and buy them again.
Audience Question: What definitions are used in constituting a mental health crisis. How is that determined?
Kimberly Wyatt: We would be happy to provide a blank copy of an Extreme Risk Protection Order petition that Law enforcement or family members use to file for the ERPO. On this document, there are a list of different behaviors that the court can consider that include behaviors like, threats of violence toward others, threats of self-harm, prior domestic violence incidents, abuse of drugs or alcohol, changes in behavior (crisis calls or new disturbance calls), prior protective orders issued and recently acquired firearms or a fixation with firearms, among other things.
Audience Question: How does the court know when the defendant has firearms and do they know how many? Is there a check against licensing and permits?
Kimberly Wyatt: This is a big part of what we will talk about in part two. There is no actual firearm registry but we do have handgun purchase records and records for concealed pistol licenses. We share this information with the court so the court is aware of what the restrained party has purchased (knowing this is likely not inclusive of any long guns rifles or handguns purchased somewhere other than a federally licensed dealer). This information is really critical and helps us to keep law enforcement safe when they need to remove the firearms based on dangerous behavior and a court order authorizing its removal.
Audience Question: When ownership is suspected, is the judge allowed to order a search warrant?
Kimberly Wyatt: Anytime you’re doing a search warrant, you have to comply with the criminal rules. It is interesting because a large portion of our work is on the civil side, with criminal elements to the behavior. We have created search warrant templates that we have used in both protection orders and extreme risk protection orders. Just like in any search warrant request, you have to have probable cause to believe that the individual/respondent/defendant has access to firearms. We will talk more about search warrants in part two of this presentation.
We have definitely had to be more creative and have been pushed to look at different ways to prove possession. There is a difference between an intimate partner who knows that the defendant/respondent has had a firearm in the bedside drawer for the last 15 years. That is a different basis of knowledge than for somebody who has a crime gun in a traditional sense. We are trying to educate the court about those differences. We are also needing to be creative and frequently review social media accounts for any postings of firearms in social media. Surprisingly, we frequently find photos of firearms, especially people posing with firearms, and have used that, coupled with the victim's personal knowledge to try to obtain search warrants. We have also pulled fish and wildlife records (which was something that came up in one of our first cases) to show that the individual applied for a hunting license. If you applied for a hunting license and you identified a specific firearm, that information could be included in a search warrant affidavit provided to the court.
Audience Question: Did you get a lot of push backs from the gun rights advocacy groups in the passage of this law? Were they really strong in your area?
Sandra Shanahan: As I mentioned, the year prior to the passage of ESHB 1840, David and I testified for the legislature. We had heard that the gun rights groups said they wouldn’t oppose the legislation if there was judicial discretion on the finding of credible threat. Despite that concession, for some reason, the legislation did not pass that year. We didn’t know why that happened but were happy to hear that it passed, unanimously, in (2014).
I think the feedback that we have gotten to date is that there are no complaints about the work we are doing because we are enforcing court orders that judges have already signed off on AND that have due process protections. We know that this is a difficult practice area because people have really strong feelings around the second amendment.
What helps guide us in our work is that we are all invested in due process, public health and public safety. We are working on harm reduction by focusing on cases during periods of heightened risk. We are focusing on cases where the court has already determined that there should be a prohibition. That is our emphasis, and we feel that by doing so, it has helped to make it really clear and transparent what we are trying to accomplish.