Jennifer Jo Dare Medlin v. Andrew Allen Miller

Filed

Washington State

Court of Appeals

Division Two

June 16, 2026

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

JENNIFER JO DARE MEDLIN, No. 60184-2-II

Appellant,

v. PUBLISHED OPINION

ANDREW ALLEN MILLER,

Respondent.

PRICE, J. — Jennifer Medlin alleged that Andrew A. Miller assaulted her and their minor

child. As a result, Medlin requested a domestic violence protection order (DVPO) against Miller.

After a full hearing on the matter, the superior court commissioner granted Medlin’s petition.

Medlin then moved the superior court to prohibit Miller from possessing weapons and to

issue an order to surrender weapons (OSW).1 The superior court partially granted Medlin’s

motion—it amended the DVPO to indicate that Miller was prohibited from possessing weapons,

but it declined to issue an OSW. Largely relying on case law from this court, State v. Flannery,

24 Wn. App. 2d 466, 520 P.3d 517 (2022), the superior court reasoned that an OSW potentially

violated Miller’s rights under the Fourth and Fifth Amendments to the United States Constitution.

1

An OSW requires the party subject to such order to immediately surrender all firearms, dangerous

weapons, and concealed pistol licenses. RCW 9.41.800(1)(a), (b), (2)(c)(ii)(A), (B). The order

also prohibits the party from “accessing, having custody or control, possessing, purchasing,

receiving, or attempting to purchase or receive, any firearms or other dangerous weapons,” and

from obtaining or possessing a concealed pistol license. RCW 9.41.800(1)(c), (d), (2)(c)(ii)(C),

(D).

No. 60184-2-II

Medlin appeals, arguing that given recent developments in the OSW statutes, the Fourth

and Fifth Amendments are no longer implicated by the imposition of OSWs. We agree and

reverse. We remand to the superior court to apply the OSW statutes to Medlin’s request.

FACTS

In July 2024, Medlin petitioned the superior court for a DVPO against Miller. The petition

requested that Miller, among other things, vacate their shared residence, not contact or come within

1,000 feet of Medlin or their minor son for three years, and immediately surrender all firearms,

dangerous weapons, and concealed pistol licenses.

The petition alleged that Miller had assaulted Medlin and their two sons, one a minor and

one an adult. According to the petition, Miller had tried to attack his sons, and Medlin had been

injured when she had tried to protect them. The petition further alleged that Medlin feared that

Miller would kill her and their children if he had access to firearms. Subsequent declarations

alleged that since the beginning of their relationship in 2004, there were multiple other instances

of Miller physically and emotionally abusing Medlin, threatening her, and strangling her. Medlin

also submitted photos of her injuries and photos of Miller’s firearms.

In August 2024, the matter was heard by a superior court commissioner. Medlin apparently

understood that the commissioner would be unable to issue an OSW at that time,2 but Medlin

explained why such an order should be eventually imposed. Medlin pointed out that Miller had

access to “roughly 30 firearms” and argued that during their last encounter, Miller had held a gun

2

The superior court commissioner agreed with Medlin’s statement during the hearing that in Pierce

County Superior Court, court “commissioners do not order surrender of firearms, . . . but the judges

can [for] individual cases on revision.” Verbatim Rep. of Proc. at 13.

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to his hip and put his hand on it multiple times, making her believe that she would be killed that

night. Verbatim Rep. of Proc. (VRP) at 13.

Miller denied Medlin’s allegations of abuse. He conceded that he had a firearm with him

during the most recent incident, but he had never threatened or harmed Medlin. He also

emphasized that he “takes the safety of his guns extremely, extremely seriously” and that he kept

them locked up in a safe. VRP at 15.

The commissioner found Medlin “to be . . . more credible” and granted her petition for a

DVPO. VRP at 21. The commissioner made the following findings in support of the DVPO:

Respondent assaulted Petitioner on 7-4-24. He was arrested. Had a gun on his hip.

Respondent owns [approximately] 35 firearms.

Respondent grabbed and crushed Petitioner’s hand, also twisting it.

Respondent accused Petitioner of “turning my children against him.”

Respondent has frightened the younger child to the point he was cowering on the

floor.

Clerk’s Papers (CP) at 178.

Following the hearing, Medlin moved for the superior court to revise the commissioner’s

DVPO to include a prohibition on possessing weapons and to separately issue an OSW. The

superior court granted Medlin’s motion, but only in part. It amended the DVPO to include a

prohibition for Miller to possess or own firearms, but it declined to issue an OSW. The superior

court cited constitutional concerns and our decision in Flannery, explaining,

This Court is not issuing an [OSW], finding that issuing such an Order would by

its very nature subject the Respondent to potential criminal self-incrimination under

the [Fifth] Amendment of the United States Constitution, as well as possibly raising

Violations of the Respondent’s right against unreasonable search and seizure under

the [Fourth] Amendment of the United States Constitution.

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The court further finds it does not have the authority to grant blanket immunity

from the prosecution for unlawful possession of a firearm or dangerous weapon.

Nor has the prosecutor granted such immunity. Moreover, even if immune from

local and/or Washington State prosecution, the Respondent would remain at risk of

self-incrimination on any charges brought by another jurisdiction, including but not

limited to liability under 18 USC sec. 922.

In making these findings, the Court has reviewed the relevant portions of RCW

7.105, RCW 9.41.040, and State v. Flannery, 24 Wn. App. 2d 466 (2022) . . . .

VRP at 215.

Medlin appeals.

ANALYSIS

Medlin argues that the superior court erred when it denied her request for an OSW based

on concerns about Flannery and potential violations of the Fourth and Fifth Amendments. Medlin

contends that these concerns are no longer valid. According to Medlin, our legislature amended

Washington’s weapon-surrender statutory scheme after Flannery was decided and those

amendments addressed any potential violations of Miller’s Fifth Amendment rights. Medlin also

cites to Division One’s recent decision in In re Domestic Violence Protection Order of Montesi,

34 Wn. App. 2d 777, 572 P.3d 459 (2025), which she argues generally held that the current

statutory scheme survives both Fourth and Fifth Amendment scrutiny.

In response, Miller does not meaningfully address these post-Flannery changes;3 rather, he

argues generally that issuance of an OSW still implicates important rights grounded in the Fourth

and Fifth Amendments.

3

Miller does not address Montesi, but we note that the decision was issued on June 30, 2025, less

than one week before Miller filed his response brief (July 3, 2025).

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No. 60184-2-II

I. STANDARD OF REVIEW

We generally review challenges to a superior court’s DVPO for an abuse of discretion.

Rodriguez v. Zavala, 188 Wn.2d 586, 590-91, 398 P.3d 1071 (2017). However, if the appellant’s

challenges to the order require the resolution of constitutional questions, we review the issues de

novo. Flannery, 24 Wn. App. 2d at 477.

Because both the superior court’s decision and the parties’ arguments implicate

constitutional provisions, we start there.

II. RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment protects individuals from unreasonable searches and seizures.

U.S. CONST. amend IV. Fourth Amendment protections, however, apply only when “state action”

occurs—the Fourth Amendment does not protect individuals from the conduct of private

individuals or entities. Montesi, 34 Wn. App. 2d at 789. State action in this context generally

involves actions taken by law enforcement who are acting as agents of the state. Id.

The Fifth Amendment protects against self-incrimination. U.S. CONST. amend. V. A

person may exercise their Fifth Amendment rights in any proceeding “ ‘where the answer might

incriminate [them] in future criminal proceedings.’ ” State v. Brelvis Consulting LLC, 7 Wn. App.

2d 207, 218, 436 P.3d 818 (2018) (internal quotation marks omitted) (quoting Alsager v. Bd. of

Osteopathic Med. & Surgery, 196 Wn. App. 653, 668, 384 P.3d 641 (2016)), review denied,

193 Wn.2d 1019 (2019). But it is “ ‘well established that the privilege protects against real

dangers, not remote and speculative possibilities.’ ” Seventh Elect Church in Israel v. Rogers,

34 Wn. App. 96, 100, 660 P.2d 294 (quoting Zicarelli v. New Jersey Comm’n of Investigation,

406 U.S. 472, 478, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972)), review denied, 99 Wn.2d 1019 (1983).

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No. 60184-2-II

There are circumstances where the administration of effective law enforcement and

government function make it necessary for the government to be able to compel testimony or

testimonial acts. Pillsbury Co. v. Conboy, 459 U.S. 248, 252, 103 S. Ct. 608, 74 L. Ed. 2d 430

(1983). If a witness is provided with immunity and, thereby “protected ‘against the use of [their]

compelled answers and evidence derived therefrom in any subsequent criminal case in which [they

are] a defendant,’ ” then they may be compelled to testify without violating the Fifth Amendment.

Montesi, 34 Wn. App. 2d at 784 (alterations in original) (internal quotation marks omitted)

(quoting Flannery, 24 Wn. App. 2d at 480).

A civil case can have Fifth Amendment implications, but the Amendment’s protections

generally rest on “whether a [person]’s statements exposed [them] to a ‘realistic threat of self-

incrimination’ in a subsequent proceeding . . . .’ ” In re Dependency of Q.L.M., 105 Wn. App.

532, 544 n.27, 20 P.3d 465 (2001) (quoting State v. King, 130 Wn.2d 517, 524, 925 P.2d 606

(1996)).

III. BACKGROUND ON OSW STATUTORY SCHEME

OSWs are required by statute in certain cases. The superior court is required to issue an

OSW if it: (1) issues a DVPO and (2) finds, by a preponderance of the evidence, that the respondent

has used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or is

otherwise ineligible to possess a firearm.4 RCW 9.41.800(1). Once the superior court issues the

4

Even if a felony is not involved, the superior court may still have the discretion to issue an OSW.

The statute provides that the superior court may issue an OSW “if it finds that the possession of a

firearm or other dangerous weapon by any party presents a serious and imminent threat to the

public health or safety, or to the health or safety of any individual.” RCW 9.41.800(4).

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No. 60184-2-II

order, law enforcement serves it on the respondent, notifies them that the order is effective upon

service, and takes possession of any weapons they surrender. See Montesi, 34 Wn. App. 2d at 785,

790 (explaining that RCW 9.41.800 provides the basis for issuing an OSW and RCW 9.41.801

discusses law enforcement’s role once the order is issued). But “[l]aw enforcement does not

conduct a search unless the court finds probable cause that a crime occurred and issues a warrant.”

Id. at 790.

A. THE EVOLUTION OF THE STATUTORY SCHEME

This statutory scheme for OSWs has evolved over time. The statute initially creating

OSWs generally required that the superior courts issue them, but it included few details. See LAWS

OF 1994, 1st Spec. Sess., ch. 7, § 430. It was not until 2019 that the legislature created procedures

for courts and law enforcement to effectuate OSWs. See LAWS OF 2019, ch. 245, § 2. At that time,

provisions were added to require courts to monitor compliance with the orders and to require law

enforcement to serve the orders, notify the respondent of their rights, and take possession of any

surrendered weapons. Id.

Three years later, in 2021, the legislature made further changes. It “overhauled the

statutory scheme for various types of protection orders” including making amendments to RCW

9.41.801. Flannery, 24 Wn. App. 2d at 470. The 2021 amendments expanded the OSW

procedures even more and, for the first time, added immunity provisions for respondents who

surrendered weapons. Id. The legislature explained that the addition of immunity provisions was

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No. 60184-2-II

due to its efforts to increase compliance with OSWs, given the public safety crisis of domestic

violence.5 The new immunity provision read:

An order to surrender and prohibit weapons issued pursuant to RCW 9.41.800 must

state that the 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.

Former RCW 9.41.801(9)(a) (2022) (LAWS OF 2021, ch. 215, § 75).

The legislature’s creation of this immunity provision was important because, without it,

the scheme had been held by a panel of this court to be constitutionally suspect. In Flannery, a

panel of this court held that the 2019 statutory scheme (pre-2021 amendments) violated the Fourth

and Fifth Amendments. 24 Wn. App. 2d at 472, 86. The court held that the scheme violated

Fourth Amendment rights because it required respondents, without reasonable suspicion that

firearms were actually possessed, to search their own homes, seize any firearms, and hand over

those firearms to law enforcement. Id. at 477, 484. The court also explained that the statutory

scheme violated the Fifth Amendment too because upon receipt of a DVPO, it was immediately

illegal for a respondent to possess any firearms or weapons. Id. at 483-84. And because the law,

5

The legislature’s findings were as follows:

The legislature further finds the surrender of firearms in civil protection orders is

critical to public health. In keeping with the harm reduction approach of this

lifesaving tool, the legislature finds that it is appropriate to allow for immunity from

prosecution for certain offenses when appropriate to create a safe harbor from

prosecution for certain offenses to increase compliance with orders to surrender and

prohibit firearms.

LAWS OF 2021, ch. 215, § 1(4).

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at that time, did not provide immunity to respondents, an OSW would essentially force respondents

to incriminate themselves. Id.

Following Flannery, it appears that many superior courts stopped imposing OSWs on

respondents. See CP at 194 (“As a result of [Flannery] and two subsequent memoranda issued by

the Administrative Office of the Courts, some superior courts around Washington have stopped

issuing orders to surrender weapons.”).

Notwithstanding that Flannery expressly did not analyze the effect of the 2021 immunity

provision added by the legislature, the legislature made further changes to the law in 2023. The

legislature’s 2023 amendments appeared to specifically address concerns about Fifth Amendment

rights. Compare former RCW 9.41.801(9)(2022) with RCW 9.41.801(9). For example, the statute

broadened its immunity provision to include any criminal prosecution that was derived from the

respondent’s surrender or testimony related to their surrender (except for perjury, giving a false

statement, or failing to comply with the OSW):

The act of voluntarily surrendering firearms or weapons, providing testimony

relating to the surrender of firearms or weapons, or complying with an order to

surrender and prohibit weapons issued pursuant to RCW 9.41.800 or 10.99.100,

and any information directly or indirectly derived from such act or testimony, may

not be used against the person subject to the order in any criminal prosecution under

this chapter, chapter 7.105 RCW, or RCW 9A.56.310, or in any criminal

prosecution pursuant to which such order to surrender and prohibit weapons was

issued, except a prosecution for perjury, giving a false statement, or otherwise

failing to comply with the order. . . .

RCW 9.41.801(9)(a). The new immunity provision also required every OSW to include this

protective language. Id.

The 2023 amendments also set out more detailed procedures to ensure that this immunity

will be effective. See RCW 9.41.801(9)(b)-(d). For example, subsection (9)(b) allows respondents

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No. 60184-2-II

who want to invoke the Fifth Amendment privilege against self-incrimination to demonstrate to

the superior court that compliance with an OSW would expose them to a “realistic threat of self-

incrimination.” The procedures even permit this demonstration to be made in a closed courtroom,

outside the presence of the prosecutor. Id.

Moreover, there are also provisions that permit more expansive immunity for matters

unrelated to the OSW. Subsection 9(a) generally provides immunity for any criminal prosecution

related to the OSW. See RCW 9.41.801(9)(a). But if the superior court determines that there is a

realistic threat of self-incrimination regarding possible criminal prosecution beyond what is

addressed in subsection (9)(a), the court must “afford the relevant prosecuting attorney an

opportunity to offer an immunity agreement tailored specifically to the firearms or weapons

implicated by the potential self-incrimination.” RCW 9.41.801(9)(c). And, if the prosecutor

declines to offer this tailored immunity agreement, then the OSW must be limited in scope. RCW

9.41.801(9)(d). The OSW may only require the respondent to surrender weapons that do not pose

a realistic threat of self-incrimination related to other possible criminal prosecution. Id. In other

words, a respondent can only be required to surrender weapons that do not risk self-incrimination.

Id.

B. IN RE DOMESTIC VIOLENCE PROTECTION ORDER OF MONTESI

Recent case law has addressed the 2023 amendments’ impact on the previous constitutional

infirmities of the statutory scheme. While this appeal was pending, Division One issued Montesi,

which concluded that the current version of the statute survives both Fourth and Fifth Amendment

scrutiny. 34 Wn. App. 2d at 791.

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Regarding the Fourth Amendment, Montesi expressly rejected the persuasiveness of

Flannery, noting that its analysis was limited to responding to the State’s arguments, and as such,

it failed to address whether an OSW was considered a “search and seizure” under the Fourth

Amendment. See id. at 791-92 (“The court disagreed with the State concerning the timing of a

Fourth Amendment violation and concluded its argument failed for that reason alone.”). Instead,

Montesi held that there was no “state action” that is required to trigger Fourth Amendment scrutiny.

Id. at 791. The court explained that under the OSW statutory scheme, law enforcement has

minimal involvement in the administration of an OSW—they merely serve the order, inform the

respondent of their rights, and take possession of any weapons that the respondent surrenders. Id.

at 790. Law enforcement’s repossession of the respondent’s weapons is based on what the

respondent surrenders. Id. No search of the home occurs “unless the court finds probable cause

that a crime occurred and issues a warrant.” Id. The court further rejected the respondent’s

argument that by ordering the respondent to surrender weapons, the respondent was essentially an

“instrumentality of the state,” concluding that this was insufficient to be considered state action.

Id.

Regarding the Fifth Amendment, Montesi held that because of the statute’s more robust

immunity provisions from the 2023 amendments, Fifth Amendment rights were no longer

implicated. Id. at 788. As noted above, the scheme now provides an opportunity for the respondent

to demonstrate a “realistic threat of self-incrimination,” even from non-related potential criminal

prosecutions. See RCW 9.41.801(9)(b). And if the prosecutor is unwilling to extend an immunity

agreement for those potential criminal prosecutions, the OSW will be limited. Montesi suggests

that this new procedure cures the Fifth Amendment concerns. 34 Wn. App. at 786.

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IV. APPLICATION

Here, Medlin argues that the superior court erred when it failed to follow the mandate in

RCW 9.41.800 to issue an OSW following its grant of her DVPO. Relying on Montesi, she

contends that an OSW does not violate the Fourth Amendment because it does not involve a

“search” nor does it involve state action. Medlin further argues that, as found by Montesi, the

immunity provided by the 2023 amendments have cured any potential Fifth Amendment issues.

According to Medlin, because the issuance of an OSW would not violate any of Miller’s

constitutional rights, the superior court was obligated to follow the law.

Miller responds that an OSW still violates his Fourth Amendment rights. He asserts that

because police are present during a respondent’s surrender of weapons, the state action

requirement of the Fourth Amendment is met. He argues that “a restrained party under an OSW

acts under court compulsion, which could be construed as state action if police are involved in

serving or enforcing the order.” Br. of Resp’t at 7. As for his Fifth Amendment rights, Miller

contends that even with the 2023 amendments, the current statutes “do[] not protect against federal

prosecutions or other jurisdictions’ laws.” Br. of Resp’t at 6. Miller also argues that even assuming

the OSW statutes are regulatory in nature because weapons surrender involves “testimonial acts”

and the production of potentially incriminating physical evidence, the Fifth Amendment is still

implicated. Br. of Resp’t at 6-7.

We agree with Montesi that, following the 2023 amendments, the mere issuance of an

OSW, without more, does not violate either the Fourth or Fifth Amendments.

Regarding the Fourth Amendment, like Montesi before us, we recognize that Flannery’s

conclusions were strictly a product of the arguments made by the parties in that case, and we

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No. 60184-2-II

decline to follow them.6 Rather, we are persuaded by Montesi’s conclusion that law enforcement’s

involvement in OSW administration is so minimal that it does not rise to state action. See Montesi,

34 Wn. App. 2d at 790. Law enforcement does not enter or search a respondent’s home, nor do

they compel compliance with the order. See id. at 467. We reject Miller’s unsupported contention

that because he would be surrendering his weapons “under court compulsion,” he would become

personally conscripted into becoming an instrumentality of the state. See id. at 790 (“A court order

requiring [a respondent] to “search” [their] own home for weapons is not the type of search

included in the protection of the Fourth Amendment . . . .”). Thus, because there was no state

action in the issuance of Miller’s OSW, Fourth Amendment concerns are not implicated. The

superior court erred in failing to issue an OSW on this basis.

Regarding the Fifth Amendment, like Montesi, we hold that the post-Flannery

amendments, with their more robust provision of immunity, resolve any self-incrimination issues

resulting from the issuance of an OSW. See RCW 9.41.801(9)(a)-(d). We are unpersuaded by

Miller’s argument that an OSW still violates his Fifth Amendment rights because he would not be

protected “against federal prosecutions or other jurisdictions’ laws.” Br. of Resp’t at 6. As noted

above, the statute overtly provides him the opportunity to demonstrate to the superior court that

compliance with an OSW would expose him to a “realistic threat of self-incrimination,” even from

potential criminal prosecutions unrelated to the OSW. See RCW 9.41.801(9)(b).

6

Court of Appeals’ panels are generally limited by the arguments presented by the parties. Dalton

M, LLC v. N. Cascade Tr. Servs., Inc., 2 Wn.3d 36, 50, 534 P.3d 339 (2023) (explaining that

Washington courts generally follow the rule of party presentation).

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No. 60184-2-II

If, hypothetically, Miller could demonstrate such a threat from a potential federal

prosecution or from another jurisdiction, then, following the 2023 amendments, he would still face

no realistic threat of self-incrimination. The statute instructs that resulting OSW would omit the

weapons associated with those other potential prosecutions and include only those weapons that

do not “implicate a realistic threat of self-incrimination.” RCW 9.41.801(9)(d); see also Montesi,

34 Wn. App. 2d at 786. Thus, there is no situation that would implicate “a realistic threat of

incrimination.” Q.L.M., 105 Wn. App. at 544 n.27 (stating that self-incrimination protections rest

on “whether the defendant’s statements exposed [them] to a ‘realistic threat of self-incrimination’

in a subsequent proceeding . . . .’ ” (quoting King, 130 Wn.2d at 524)).7

CONCLUSION

Courts are required to follow the law absent constitutional restraint. State v. Peterson,

198 Wn.2d 643, 645, 498 P.3d 937 (2021) (courts are obligated “to uphold and apply the laws

properly enacted by our elected legislative bodies”). Here, voicing concerns about the Fourth and

7

And it would arguably be difficult for Miller to establish a realistic risk of criminal prosecution

in other jurisdictions in any event. In multiple opinions, the United States Supreme Court has

suggested that the protections of the Fifth Amendment transcend jurisdictional lines. See Murphy

v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 79, 84 S. Ct. 1594, 12 L. Ed. 2d 678

(1964) (concluding that, once a witness testifies pursuant to a grant of state immunity, “the Federal

Government must [also] be prohibited from making any such use of compelled testimony and its

fruits”), abrogated on other grounds by United States v. Balsys, 524 U.S. 666, 118 S. Ct. 2218,

141 L. Ed. 2d 575 (1998); Kastigar v. United States, 406 U.S. 441, 460, 92 S. Ct. 1653, 32 L. Ed.

2d 212 (1972) (reaffirming the “exclusionary rule” created by Murphy that “ ‘[o]nce a defendant

demonstrates that he has testified, under a state grant of immunity, to matters related to the federal

prosecution, the federal authorities have the burden of showing that their evidence is not tainted

by establishing that they had an independent, legitimate source for the disputed evidence.’ ”

(quoting Murphy, 378 U.S. at 79 n.18)); Gelbard v. United States, 408 U.S. 41, 64 n.2, 92 S. Ct.

2357, 33 L. Ed. 2d 179 (1972) (Douglas, J. concurring) (“For in Murphy we eliminated the threat

that testimony to a state grand jury given in exchange for a state immunity grant could, despite the

witness’ fears to the contrary, be used against him by other jurisdictions.”).

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Fifth Amendments, the superior court failed to properly apply chapter 9.41 RCW and consider the

imposition of an OSW upon granting Medlin’s DVPO. Thus, we reverse and remand to the

superior court to apply the statute to Medlin’s request for an OSW.

PRICE, A.C.J.

I concur:

LEE, J.

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CRUSER, J. (concurring)—I concur with the result reached by majority but write separately

to express my view that we should make clear, as our sister divisions have, that State v. Flannery’s8

holding related to the Fourth Amendment and article I, section 7 was incorrect.9

The trial court in Flannery held that requiring a party to surrender firearms pursuant to an

order for firearm surrender violated the Fourth Amendment and article I, section 7 of the

Washington State Constitution because:

[T]he order directs a defendant to search his home for firearms and other dangerous

weapons and bring those items to law enforcement during a period when such

possession and delivery of those items would constitute a criminal law violation

since there is no immunity from prosecution for him set forth in the statute.

Flannery, 24 Wn. App. 2d at 477-78. Stated another way, the trial court ruled that the surrender

order constituted a governmental search.

The State, in its brief in Flannery, focused on this second aspect of the trial court’s ruling

(the immunity portion), arguing that if a violation of either the Fourth Amendment or article I,

section 7 were to occur, it would occur at the time the State attempted to use the fruits of an illegal

search against a defendant in a subsequent prosecution rather than at the time of the search itself.

Id. at 485. The Flannery opinion rejected this contention, stating, “A Fourth Amendment or article

I, section 7 violation occurs at the time of the illegal search, even if the fruits of the illegal search

8

24 Wn. App. 2d 466, 520 P.3d 517 (2022).

9

Washington Court of Appeals’ decisions are persuasive but not binding on other divisions of the

Court of Appeals, nor on other panels within the same division of the Court of Appeals. They are,

however, entitled to respectful consideration. In re Pers. Restraint of Arnold, 190 Wn.2d 136, 148-

54, 410 P.3d 1133 (2018).

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are not later used to prosecute a defendant.” Id. (citing Marshall v. Barlow’s, Inc., 436 U.S. 307,

325, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978)).

However, instead of examining the threshold question of whether the trial court had erred

in equating a surrender of weapons with a governmental search of a person’s home or property,

the Flannery court simply concluded that “[t]he trial court did not err in declaring the former

firearm surrender statutory scheme unconstitutional as violating the Fourth and Fifth Amendments

to the United States Constitution and article I, section 7 and 9 of the Washington Constitution.”

Id. at 486 (emphasis added). No analysis was conducted over whether the court-ordered act of

surrendering firearms actually equates to a search by a state actor.

The effect of Flannery, on which the State did not seek supreme court review, was

immediate. Numerous trial courts across the state relied on Flannery and viewed the opinion as

affirmatively holding that an order requiring the surrender of weapons was an unconstitutional

search. See, e.g., In re Domestic Violence Protection Order for Hernandez, No. 40749-7-III,

slip op. at 5-6 (Wash. Ct. App. Sept. 30, 2025) (unpublished),

https://www.courts.wa.gov/opinions/pdf/407497_unp.pdf.

Both Montesi, a published decision issued by Division One of this court, and Hernandez,

an unpublished decision issued by Division Three of this court, expressly rejected the holding of

Flannery that the trial court in that case had not erred in its ruling that a court order requiring the

surrender of weapons was tantamount to an unlawful government search of the respondent’s

premises. See In re Domestic Violence Protection Order for Montesi, 34 Wn. App. 2d 777, 789-

91, 572 P.3d 459, review denied, 5 Wn.3d 1019 (2025); Hernandez, No. 40749-7-III, slip op. at

12-13.

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No. 60184-2-II

The majority opinion in this case is more muted in its discussion of the threshold question

of whether an order to compel the surrender of weapons equates to a governmental search, stating

“we are persuaded by Montesi’s conclusion that law enforcement’s involvement in [order-to-

surrender-weapons] administration is so minimal that it does not arise to state action,” and rejecting

Medlin’s “unsupported contention that because he would be surrendering his weapons ‘under court

compulsion,’ that he personally would become conscripted to becoming an instrumentality of the

state.” Majority at 13 (quoting Br. of Resp’t at 7).

Although I certainly agree with these statements, I do not view law enforcement’s

“minimal” involvement as having any role in this analysis because at this initial stage, law

enforcement plays no role whatsoever in the retrieval or collection of weapons to be surrendered.10

I would prefer that we unreservedly disavow the portion of Flannery that, at least impliedly if not

expressly, held that the court-ordered surrender of weapons constituted a governmental search of

Flannery’s premises in violation of the Fourth Amendment and article I, section 7. And because

the Fourth Amendment and article I, section 7 are not even implicated in this circumstance, the

10

The factual pattern underlying the analyses in cases such as Flannery, Montesi, and Hernandez,

is where a person is served with an order to surrender weapons either in court or by an alternate

method of service that does not involve law enforcement. See RCW 9.41.801(2). In either of these

two circumstances, a respondent is required to “immediately surrender all firearms, dangerous

weapons, and any concealed pistol license in a safe manner to the control of the local law

enforcement agency on the day of the hearing at which the respondent was present in person or

remotely,” or to “surrender the firearms in a safe manner to the control of the local law enforcement

agency within 24 hours of being served with the order by alternate service.” RCW 9.41.801(2).

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majority’s extensive focus on the (somewhat unrealistic11) immunity provisions of RCW 9.41.801

is not necessary.

Nor would these immunity provisions, in my view, cure the problem if there was a violation

of either the Fourth Amendment or article I, section 7. If it is correct to say that the court-ordered

surrender of weapons constitutes a governmental search of the respondent’s premises within the

meaning of either the Fourth Amendment or article I, section 7, that particular constitutional

violation occurs at the time of the search, not at the time the State seeks to introduce evidence

found in the search in a subsequent criminal prosecution. Indeed, this was the very argument the

State made in Flannery that the Flannery court correctly rejected. Thus, it makes little sense to me

to discuss the immunity provisions of RCW 9.41.801 in the context of the Fourth Amendment and

article I, section 7 portions of this case.

For the foregoing reasons, I respectfully concur in the result reached by the majority but

write separately to express my view that we should clearly disavow the portion of Flannery holding

11

It is arguably unlikely that a respondent would avail themself of the procedures set forth in RCW

9.41.801(9)(c) and (d) when the realistic threat of prosecution and potential punishment for

whatever crime is at issue may be far greater than that which the superior court could simply

impose by way of criminal contempt for failing to comply with the surrender order. Perhaps in

light of this prospect, the statute makes no effort to explain the exact procedure a superior court

should follow if such a respondent comes forward. Other than the provision allowing for closure

of the courtroom or in camera proceedings during the trial court’s initial consideration of the self-

incrimination claim set forth in .801(9)(b), the statute does not set forth the manner in which the

prosecutor will be invited to give immunity to a respondent or how and where that discussion will

take place. Moreover, it is difficult to imagine a prosecutor participating in an immunity discussion

in a court hearing without first knowing, before the hearing, adequate details of the crime for which

a respondent seeks immunity. As it relates to RCW 9.41.801(9)(c) and (d), the statute is

additionally silent on whether the immunity afforded to the respondent would be full transactional

immunity or mere use immunity.

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that the court-ordered surrender of weapons violates the Fourth Amendment and article I, section

7 of the Washington Constitution.

CRUSER, J.

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