Firearm surrender laws pertaining to perpetrators of domestic violence are being challenged in both the Washington State Supreme Court and the US Supreme Court. In this interview, we ask Northwest Justice Project Executive Director César Torres about the nature of those challenges and what they could mean for victims of domestic violence.
Q: What are firearm surrender laws?
César Torres: Persons experiencing domestic or intimate partner violence—including physical violence, harassment, sexual assault, or stalking— must often seek a Domestic Violence Protection Order (DVPO). Washington, along with other states, have amended their laws to authorize a judge to not only require the abuser to stay away from the victim, but also to require the perpetrator to surrender any firearms in their possession.
In Washington, firearms surrender laws have been in effect since 2014. As of 2023, roughly half of states include specific state requirements for surrender of firearms upon conviction of misdemeanor domestic violence or imposition of a permanent restraining order.
Unfortunately, today firearms surrender laws are increasingly being challenged in state and federal courts on Second Amendment grounds regarding the right to bear arms. These laws are now under grave threat.
Q: Why is firearm surrender so important to survivors of domestic violence?
César Torres: Firearm surrender laws were passed because it became clear that perpetrators of domestic violence with access to guns often killed intimate partners who defied them by seeking DVPOs.
In addition, an abuser’s repeated and willful noncompliance with weapons surrender orders can be part of a larger pattern of coercive control used to cause their victim to suffer further physical, emotional, or psychological harm.
We also know that there is a strong link between domestic violence perpetrators and mass shooting incidents. A major study found that in 68 percent of mass shootings between 2014 and 2019, the perpetrator either killed at least one partner or family member or had a history of domestic violence.
Q: How is the firearms surrender law being implemented in Washington state and how does this affect survivors of domestic violence?
César Torres: Inconsistently! County by county, implementation varies. For example, Pierce County has discontinued issuing firearm surrender orders related to DVPOs, while King County and others continue to. This creates uncertainty for survivors and the Courts. It also hinders the enforcement of protective measures that are vital for the safety of survivors of domestic violence depending on where a victim might find themselves.
Q: What role does NJP play in supporting victims of domestic violence?
César Torres: NJP attorneys represent hundreds of victims of domestic violence every year. We routinely navigate complex legal procedures, present medical and expert evidence to advocate on behalf of protections for survivors and their families. If necessary, we appeal decisions that are incorrect or fail to provide the protections provided by law.
We know that such legal representation is crucial for domestic violence survivors. It ensures that their voices are heard, their rights are protected, and they have the best possible chance of obtaining the protection they need and the justice they deserve.
For example, from 2016 to mid-2021, petitioners in King County Superior Court with an attorney were 60% more likely to obtain a full protection order than those without—but just 9% of people filing for protection orders through the Superior Court had legal representation.
This makes the no-cost legal representation provided by NJP one of the few resources available to low-income survivors of domestic violence.
Q. What are the court challenges in state and federal courts?
César Torres: Not surprisingly, individuals who are ordered to surrender their firearms and Second Amendment advocates believe the state has no right to take firearms away and that firearms surrender laws are unconstitutional.
Unfortunately, a 2022 U.S. Supreme Court case, New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2130, 213 L. Ed. 2d 387 (2022), opened the door for challenges to all manner of gun control laws when it held that regulation of the right to bear arms must be “consistent with the Nation’s historical tradition of firearm regulation.”
It bears noting that the “historical” tradition of firearm regulation referenced in the decision did not contemplate recognition of the role of firearms in domestic violence.
Following the decision in Bruen, a perpetrator of domestic violence charged with possession of a firearm in violation of a DVPO surrender order challenged the Constitutionality of Washington’s firearms surrender law in State of Washington v. Bell, a case now pending before the Washington State Supreme Court.
Q. Mr. Bell ignored the order to surrender his weapons. What happened next?
César Torres: That’s right. In November 2021, Mr. Bell was ordered to surrender his weapons as part of a domestic violence protection order case. He failed to do so. Then, on New Year’s Day 2022, he appeared at a QFC kiosk with an AK-74 assault rifle and threatened an employee. He was arrested and convicted of attempted robbery and unlawful possession of a firearm based on the Domestic Violence Protection Order.
Relying on the Bruen decision, Mr. Bell challenged his conviction arguing that Washington’s firearms surrender law is unconstitutional. On June 9, 2023, the Washington State Supreme Court accepted the case and originally scheduled arguments for September 14, 2023. However, the Court has postponed holding arguments in Bell because of yet another case—the Rahimi case—which the U.S. Supreme Court will hear on November 7, 2023, and render a decision sometime in 2024.
Q: The U.S. Supreme Court will soon hear United States v Rahimi. What is its importance to survivors of domestic violence?
César Torres: In a disturbing development, this past March the Fifth Circuit Court Appeals in Texas struck down a federal law prohibiting possession of firearms by people subject to domestic violence protection orders. The Fifth Circuit relied on Bruen to rule that a domestic violence ban on the possession of firearms is an “outlier that our ancestors would never have accepted.”
On June 30, 2023, the U.S. Supreme Court agreed to hear an appeal in the Rahimi case. When Rahimi is argued on November 7, the U.S. Supreme Court will have to deal with the absurd logic underlying Bruen. Taken to its extreme, Bruen would allow domestic violence perpetrators to argue that because domestic violence was not a crime in the 1700s, and no surrender laws existed at the time, government has no role to play in adopting laws or regulations that restrict firearms to protect survivors!
If the Supreme Court decides Rahimi by doubling down on its extremely narrow, originalist interpretation of the Constitution, courts will no longer be able to force perpetrators of domestic violence to surrender their firearms and the lives of domestic violence victims will be at the mercy of their abusers.