IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Domestic Violence No. 85858-1-I Protection Order for DIVISION ONE JESSICA DIANE MONTESI,
Respondent, PUBLISHED OPINION
and
BRANDON EUGENE MONTESI,
Appellant.
SMITH, J. — In 2022, Jessica Montesi obtained a domestic violence
protection order (DVPO) against her ex-husband, Brandon Montesi, that required
him to surrender any weapons he possessed. When Brandon failed to comply
with the DVPO, the trial court found him to be in civil contempt. A year later,
Brandon asked the court to declare the weapons surrender statute
unconstitutional under the Fifth Amendment, Fourth Amendment, Second
Amendment, and the separation of powers doctrine. The trial court denied the
motion. Brandon appeals.
FACTS
Jessica and Brandon Montesi1 divorced in April 2022. In May 2022,
Jessica moved for a DVPO. The trial court issued a temporary DVPO and, as
1 We refer to the parties by their first names solely for the purpose of clarity and to avoid confusion. No. 85858-1-I/2
part of that order, required Brandon to surrender his firearms. Brandon
submitted a declaration of non-surrender, claiming all of his firearms were stored
at his friend, Steve Krance’s, house. Krance submitted a declaration stating the
same.
After the court determined Brandon was not in compliance with the
weapons surrender order, Krance submitted a new declaration identifying seven
firearms he had received from Brandon. Jessica filed a declaration in response
to Krance’s declaration, identifying numerous weapons Brandon owned while
they were married that Krance had not accounted for.
The court eventually set a show cause hearing and informed Brandon he
could face consequences, such as monetary sanctions and incarceration, if he
was not able to account for the missing firearms. The court issued a one-year
DVPO and a new order to surrender weapons, listing the additional firearms
Jessica had included in her declaration. Brandon surrendered his concealed
pistol license and Krance surrendered the guns he had in his possession to local
law enforcement. The court again found Brandon not in compliance with the
weapons surrender order, noting 13 weapons were still unaccounted for.
The court held a contempt hearing in August 2022, and after a review
hearing in September, the court issued an order finding Brandon in contempt of
the weapons surrender order. In January 2023, Brandon surrendered three
additional guns. Brandon claimed they were his grandfather’s guns that he had
stored in his safe at one point, but had not had in his possession since January
2022.
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At a compliance hearing in July 2023, Brandon asked the court to find the
weapons surrender statute unconstitutional under the holding in State v.
Flannery, 24 Wn. App. 2d 466, 520 P.3d 517 (2022). After allowing the parties to
brief the issue and hearing arguments, the court issued findings of
noncompliance and an order denying Brandon’s motion to declare the weapons
surrender statute unconstitutional.
Brandon appeals, arguing the weapons surrender statute is
unconstitutional under the Fifth Amendment, Fourth Amendment, Second
Amendment, and the separation of powers doctrine.
ANALYSIS
Standard of Review
We review issues of statutory interpretation de novo. State v. Wadsworth,
139 Wn.2d 724, 734, 991 P.2d 80 (2000). A statute is presumed to be
constitutional, and the party challenging the constitutionality of a statute bears
the burden of proving the statute is unconstitutional beyond a reasonable doubt.
State v. Evergreen Freedom Found., 192 Wn.2d 782, 796, 432 P.3d 805 (2019).
When interpreting a statute, we must read the statutory provisions as a whole,
not in isolation. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,
43 P.3d 4 (2002). When a party raises constitutional challenges under both
federal and state law, this court will, when feasible, resolve questions first under
the state constitution before analyzing federal law. State v. Rivers, 1 Wn.3d 834,
858, 533 P.3d 410 (2023).
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Fifth Amendment
Brandon alleges the order to surrender weapons violates his right against
self-incrimination. Jessica contends the issue is not ripe and, even if it were,
Brandon’s Fifth Amendment rights are not violated. We conclude the issue is
ripe and Brandon’s Fifth Amendment rights were not violated.
Protection against self-incrimination in criminal proceedings is guaranteed
under the Fifth Amendment of the United States Constitution and article 1,
section 9 of the Washington State Constitution. While both constitutions refer
specifically to criminal proceedings, an individual may invoke their right against
self-incrimination 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)). A party must invoke their Fifth Amendment right against self-
incrimination “ ‘through specific, individual objections, not by invoking blanket
constitutional protection to avoid participating in the proceeding.’ ” Brelvis, 7 Wn.
App. 2d at 222-23 (quoting Alsager, 196 Wn. App. at 668). The threat of
incrimination “must be substantial and real, not merely speculative.” State v.
Hobble, 126 Wn.2d 283, 290, 892 P.2d 85 (1995). Determining whether the
implication of self-incrimination is genuine lies within the sound discretion of the
trial court. Hobble, 126 Wn.2d at 291.
The right to invoke the Fifth Amendment is not absolute. Hobble, 126
Wn.2d at 291. When an individual is protected “ ‘against the use of [their]
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compelled answers and evidence derived therefrom in any subsequent criminal
case in which [they are] a defendant,’ ” the party may be compelled to answer,
even when the answer is incriminating. Flannery, 24 Wn. App. 2d at 480
(quoting State v. King, 130 Wn.2d 517, 524, 925 P.2d 606 (1996)). This type of
protection is called “immunity from use and derivative use,” and is “coextensive
with the scope of the privilege against self-incrimination.” Kastigar v. United
States, 406 U.S. 441, 453, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).
1. Ripeness
Jessica claims the issue is not ripe because Brandon never invoked his
Fifth Amendment right against self-incrimination. While Jessica is correct that
Brandon never explicitly asserted his Fifth Amendment right, RCW 9.41.801(9)(a)
does not require a party to affirmatively invoke the privilege. RCW 9.41.801(9)(a)
is self-executing and automatically confers immunity upon any individual subject
to an order issued under RCW 9.41.800 or RCW 10.99.100.
Because Brandon was subject to an order to surrender and prohibit
weapons issued in accordance with RCW 9.41.800(1), which covers DVPOs
entered under chapter 7.105 RCW, he was automatically granted immunity and
was not required to affirmatively invoke his Fifth Amendment privilege.
Therefore, the issue is ripe for review.
2. Immunity
Here, Brandon contends RCW 9.41.801(9) does not provide adequate
immunity and violates his right against self-incrimination. First, Brandon asserts
orders under chapter 7.105 RCW and chapter 26.09 RCW are not listed in
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RCW 9.41.801(9) and, accordingly, immunity under RCW 9.41.801(9) does not
cover his weapons surrender order. But the immunity provision of
RCW 9.41.801(9) specifically includes orders issued pursuant to RCW 9.41.800,
and RCW 9.41.800 includes orders entered under chapter 7.105 RCW and
chapter 26.09 RCW. Therefore, orders issued under those two chapters,
including Brandon’s DVPO issued under chapter 7.105 RCW, are covered by the
immunity granted in RCW 9.41.801(9).
Next Brandon asserts RCW 9.41.801(9)(a) does not provide “blanket
immunity” covering all scenarios under chapter 7.105 RCW and
chapter 26.09 RCW. But, Brandon fails to read the statute as a whole. The
additional provisions under RCW 9.41.801(9)(c) and (d) address situations that
may arise and are not covered by the immunity granted under section (9)(a).
The language of RCW 9.41.801(9)(c) reads: If the person subject to the order establishes such a realistic threat of self-incrimination regarding possible criminal prosecution that is not addressed by the immunity from prosecution set forth in (a) of this subsection, the court shall 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.
Subsection (9)(d) further clarifies, “Any immunity from prosecution beyond the
immunity set forth in (a) of this subsection, may only be extended by the
prosecuting attorney.” These provisions grant the prosecuting attorney an
opportunity to offer immunity not covered by subsection (9)(a). Brandon claims
these provisions inappropriately “vest[] solely in the prosecutor the gatekeeping
and decision duties of when they think a conditional grant of immunity applies.”
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While the statute does give the prosecuting attorney an opportunity to address
immunity not provided under subsection (9)(a), immunity is not solely in the
prosecutor’s control. Brandon fails to consider the additional immunity provided
under subsection (9)(d).
RCW 9.41.801(9)(d) states: If the prosecuting attorney declines to extend immunity such that the person subject to the order cannot fully comply with its surrender provision without facing a realistic threat of self- incrimination, the court's order must provide for the surrender of every firearm, dangerous weapon, and concealed pistol license that does not implicate a realistic threat of self-incrimination.
RCW 9.41.801(9)(d) ensures that, if a defendant faces a realistic threat of self-
incrimination and immunity has not been conferred by subsection (9)(a) or the
prosecutor, the defendant does not have to surrender any incriminating weapons.
Therefore, if Brandon is put in a situation where he is not covered by the
immunity in subsection (9)(a) and the prosecutor declines to provide immunity,
he can only be ordered to surrender weapons that are not self-incriminating.
3. Constitutionality
Brandon claims the procedures under RCW 9.41.801(9)(b) are
unconstitutional because the court is given discretion to determine whether a
person subject to a weapons surrender order has shown a realistic threat of self-
incrimination, and obtaining immunity requires a party to meet certain conditions,
such as showing compliance. But neither of these procedures raises a
constitutional issue.
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RCW 9.41.801(9)(b) states, If a person subject to such an order invokes the privilege against self-incrimination at the time of issuance of the order or at a subsequent hearing, the court may afford the person subject to the order an opportunity to demonstrate that compliance with the surrender provision of the order would expose that person to a realistic threat of self-incrimination in a subsequent or pending criminal proceeding. The court may conduct this portion of the proceeding ex parte or receive evidence in camera, without the presence of the prosecuting attorney, after the court conducts an analysis under State v. Bone-Club,[2] . . . and concludes that the courtroom may be closed.
Washington courts have long held the court has the duty to determine whether a
party invoking their Fifth Amendment privilege has shown a realistic threat of self-
incrimination. See, e.g., Hobble, 126 Wn.2d at 291 (“The determination whether
the privilege applies lies within the sound discretion of the trial court under all the
circumstances then present.”); Seventh Elect Church in Israel v. Rogers, 34 Wn.
App. 105, 113, 660 P.2d 280 (1983) (“[I]t is for the court to determine whether
silence is justified.”). The court’s discretion on this matter is not only appropriate,
it is required.
Brandon also claims RCW 9.41.801(9)(b) creates unnecessary hurdles for
a party invoking their Fifth Amendment privilege. Brandon notes the statute’s
use of the word “may” provides for a discretionary decision by the court, requiring
the court to engage in a Bone-Club analysis before closing the courtroom. But
this requirement is only necessary if it is not evident from the information
requested that the party’s Fifth Amendment rights are implicated. See Rogers,
34 Wn. App at 115 (“[W]here the external circumstances support the privilege
2 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
8 No. 85858-1-I/9
claim, an in camera hearing is not required.”) The “may” language in
RCW 9.41.801(9)(b) is only relevant if the privilege is not covered under
subsection (9)(a) and it is not apparent whether invoking the privilege is
appropriate. Brandon’s order is covered under subsection (9)(a) because it was
issued pursuant to RCW 9.41.800, so any implication of subsection (9)(b) is only
theoretical.
Because Brandon’s weapons surrender order is covered under
RCW 9.41.801(9)(a), he has immunity from prosecution related to the surrender
of firearms, including testimony associated with the surrender of firearms and
complying with an order to surrender. Therefore, Brandon’s Fifth Amendment
rights are not violated.
Fourth Amendment & Article 1, Section 7
Brandon asserts the weapons surrender statute violates his right against
unreasonable searches and seizures. Jessica contends Brandon’s rights have
not been violated because Brandon is not a state actor and the constitutional
right to be free from unreasonable searches and seizures does not apply. We
agree with Jessica.
Under the Fourth Amendment to the United States Constitution,
individuals have the right to be free from unreasonable searches and seizures.
Likewise, article 1, section 7 provides, “No person shall be disturbed in his
private affairs, or his home invaded, without authority of law.” Both the Fourth
Amendment and article 1, section 7 protect individuals from unjustified
government intrusion. City of Pasco v. Shaw, 161 Wn.2d 450, 458-59, 166 P.3d
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1157 (2007). But article 1, section 7 provides greater protection than the Fourth
Amendment. State v. Muhammad, 194 Wn.2d 577, 586, 451 P.3d 1060 (2019).
Under article 1, section 7, “a search occurs when the government disturbs ‘those
privacy interests which citizens of this state have held, and should be entitled to
hold, safe from governmental trespass absent a warrant.’ ” Muhammad, 194
Wn.2d at 586 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151
(1984)).
1. State Action and the Warrant Requirement
Jessica contends we do not need to reach the issue of whether article 1,
section 7 or the Fourth Amendment were violated because neither apply.
Jessica notes article 1, section 7 and the Fourth Amendment are only applicable
to state actors and claims Brandon was not acting in a governmental capacity at
the time of the search.
The Fourth Amendment and article 1, section 7 apply only when a state
action occurs, or when an individual is acting as a government agent. Kalmas v.
Wagner, 133 Wn.2d 210, 216, 943 P.2d 1369 (1997). An individual is a state
actor “if that person functions as an agent or instrumentality of the state.” Shaw,
161 Wn.2d at 460. To determine whether an individual is a state actor, courts
look to “ ‘the capacity in which [a person] acts at the time of the search.’ ” Shaw,
161 Wn.2d at 460 (alteration in original) (quoting State v. Ludvik, 40 Wn. App.
257, 262-63, 698 P.2d 1064 (1985)). The individual challenging the
constitutionality of an action “bears the burden of establishing that state action is
involved.” Shaw, 161 Wn.2d at 460.
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State action mainly involves law enforcement. See, e.g., Muhammad, 194
Wn.2d at 584-96 (analyzing governmental action in the context of law
enforcement obtaining cell phone records); State v. Mecham, 186 Wn. 2d 128,
380 P.3d 414 (2016) (discussing whether field sobriety tests by law enforcement
constitute a search).3 Under RCW 9.41.801(2), the role of law enforcement is to
serve the order, inform the respondent the order is effective upon service, and
take possession of any weapons surrendered. Law enforcement does not
conduct a search unless the court finds probable cause that a crime occurred
and issues a warrant. RCW 9.41.801(4).
A court order requiring Brandon to “search” his own home for weapons is
not the type of search included in the protection of the Fourth Amendment or
article 1, section 7. No governmental trespass into private affairs has occurred—
Brandon is simply required to locate all weapons in his possession and surrender
them to law enforcement. Brandon provides no argument for why producing
weapons under a court order is state action. Brandon only briefly addresses
state action in his reply, noting, “In the order to surrender possession, the trial
court directed Appellant to take action to surrender the weapons in his
possession. In doing so, the trial court made Appellant an instrumentality (albeit
3 Other contexts not involving law enforcement where state action has been found include actions by tax appraisers (State v. Vonhof, 51 Wn. App. 33, 751 P.2d 1221 (1988)); city building inspectors performing nonconsensual inspections (City of Seattle v. McCready, 123 Wn.2d 260, 868 P.2d 134 (1994)); and school officials conducting searches of student luggage (Kuehn v. Renton Sch. Dist. No. 403, 103 Wn.2d 594, 694 P.2d 1078 (1985)). Like law enforcement cases, all of these cases involve one individual searching the property of another.
11 No. 85858-1-I/12
unwilling) of its order.” (Citation omitted.) Brandon claims, because he was
made an instrumentality of the state, a warrant was required before he could be
forced to search his home. Brandon cites several cases to support his claim, but
provides no explanation for how these cases advance his argument that he was
acting as an instrumentality of the state. In fact, in each of the cases Brandon
cites, the court did not find state action.4 Without state action, no “search and
seizure” as defined by law exists and, therefore, no violation of article 1, section 7
or the Fourth Amendment.
Because state action is not implicated when a court issues a weapons
surrender order, article 1, section 7 and the Fourth Amendment are not
applicable.
1. Search and Seizure under Flannery
Brandon contends Flannery supports a finding that the weapons surrender
statute violated his right against unreasonable searches and seizures. But,
Flannery is no longer instructive.
In Flannery, the State charged Dwayne Flannery with second degree
assault and the court entered a no-contact order under RCW 10.99.040(2)(a),
which instantly made it illegal for Flannery to possess firearms. 24 Wn. App. 2d
at 475. The court also issued a weapons surrender order. Id. At the time
Flannery’s weapons surrender order was entered, former RCW 9.41.800 did not
have an immunity provision. Id. at 476. Flannery moved to vacate the order,
4State v. Clark, 48 Wn. App. 850, 743 P.2d 822 (1987); State v. Swenson, 104 Wn. App. 744, 9 P.3d 933 (2000); State v. Walter, 66 Wn. App. 862, 833 P.2d 440 (1992); Shaw, 161 Wn. 2d 450.
12 No. 85858-1-I/13
claiming it violated his privilege against self-incrimination and his right to be free
from unreasonable searches and seizures. Id. Flannery argued, because it was
unlawful for him to own or possess a firearm under the no-contact order, a later
order to surrender weapons would force him to incriminate himself unless he had
some form of immunity. Id. at 476. The trial court held, [T]o the extent the order directs a defendant to search [their] 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.
Id. at 477-78.
On appeal, the State did not argue the search was legal, it only argued the
statute itself was not unconstitutional because a Fourth Amendment violation
does not occur at the time of the search, but only when the fruits of a search are
later used to prosecute. Id. at 485-86. The court disagreed with the State
concerning the timing of a Fourth Amendment violation and concluded its
argument failed for that reason alone. Id. at 485. Because the State did not
address the Fourth Amendment violation further, neither did the court. Id. The
court held the statute violated Flannery’s Fourth and Fifth Amendment rights. Id.
In 2021, the legislature amended RCW 9.41.801 and added an immunity
provision to the firearm surrender statutory scheme. LAWS OF 2021, ch. 215,
§ 75. The revisions of RCW 9.41.801 directly addressed the Fourth Amendment
issue raised in Flannery.5 The statute now provides immunity for individuals
5 In his reply brief, Brandon claims for the first time that the trial court failed to address that the immunity provisions of the amendment to
13 No. 85858-1-I/14
surrendering weapons. Accordingly, surrendering weapons while under another
order which prohibits the possessing of weapons will not result in a violation of
criminal law.
In light of the amendment of RCW 9.41.801, Brandon has not established
the presence of state action and his reliance on Flannery is misplaced. We
conclude Brandon’s Fourth Amendment right against unreasonable searches and
seizures was not violated.
Second Amendment
Brandon contends the weapons surrender statute violates his Second
Amendment right to bear arms. Jessica disagrees. Recent Supreme Court case
law directly addresses this issue and establishes that the weapons surrender
statute does not infringe upon Brandon’s right to bear arms.
The Second Amendment provides individuals the right to bear arms. See
U.S. CONST. amend. II. But this right is not unlimited. District of Columbia v.
Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). When
faced with a challenge to a firearm regulation, “the appropriate analysis involves
considering whether the challenged regulation is consistent with the principles
that underpin our regulatory tradition.” United States v. Rahimi, 602 U.S. 680,
RCW 9.41.801(9) are not retroactive and, therefore, do not apply to his case. We do not consider arguments raised for the first time in reply briefs. Cowiche Canyon Conservancy v. Bosley, 118 Wn. 2d 801, 828 P.2d 549 (1992). But even if we were to consider this argument, the legislature explicitly stated the provisions of amended RCW 9.41.801 apply to “[p]rotection orders entered prior to the effective date of this section under chapter 74.34 RCW or any of the former chapters 7.90, 7.92, 7.94, 10.14, and 26.50 RCW.” LAWS OF 2021, ch. 215, § 65.
14 No. 85858-1-I/15
692, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024). At common law, individuals
were barred from using firearms to threaten or menace others. Rahimi, 602 U.S.
at 693. In accordance with these “going armed” laws, the Supreme Court has
held, “When an individual poses a clear threat of physical violence to another, the
threatening individual may be disarmed.” Rahimi, 602 U.S. at 698.
Here, Brandon contends the weapons surrender statute violates his
Second Amendment rights, but he bases his entire argument on United States v.
Rahimi, 61 F.4th 443 (5th Cir. 2023), which was reversed by the Supreme Court
in Rahimi, 602 U.S. at 702. In Rahimi, the Supreme Court held a federal statute
prohibiting an individual subject to a domestic violence restraining order from
possessing a gun does not violate the Second Amendment. 602 U.S. at 700-02.
After the Supreme Court’s decision in Rahimi, the basis for Brandon’s reasoning
is no longer good law and his argument fails.
Because an individual subject to a DVPO may lawfully be prohibited from
possessing weapons, the weapons surrender statute does not violate the Second
Amendment.
Separation of Powers
Brandon claims the weapons surrender statute violates the separation of
powers doctrine. Because the legislature properly delegated authority to the
courts under RCW 9.41.801, the separation of powers doctrine is not violated.
The separation of powers doctrine is not explicitly enumerated in the
Washington State Constitution, but the division of government into three separate
branches “has been presumed throughout our history.” Hanson v. Carmona, 1
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Wn.3d 362, 387, 525 P.3d 940 (2023). While the branches are separate, they
are not completely isolated. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494,
507, 198 P.3d 1021 (2009). “The separate branches must remain partially
intertwined to maintain an effective system of checks and balances.” Hale, 165
Wn.2d at 507. A separation of power issue arises when “ ‘the activity of one
branch threatens the independence or integrity or invades the prerogatives of
another.’ ” State v. Chavez, 134 Wn. App. 657, 666, 142 P.3d 1110 (2006)
(quoting State v. Moreno, 147 Wn.2d 500, 505-06, 58 P.3d 265 (2002)). That
two branches of government engage in “ ‘coinciding activities’ ” is not enough,
the activity of one branch must threaten the independence of another. Carrick v.
Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994) (quoting Zylstra v. Piva, 85
Wn.2d 743, 750, 539 P.2d 823 (1975)).
For one branch to delegate authority to another branch is not inherently
improper. In re Disciplinary Proceeding Against Petersen, 180 Wn.2d 768, 781,
329 P.3d 853 (2014). “A delegation of authority must involve (1) standards to
guide the [branch] and (2) procedural safeguards to control for abuse of
discretionary power.” Peterson, 180 Wn.2d at 781.
Here, the legislature appropriately delegated authority to the courts to
ensure compliance with weapons surrender orders. The legislature provides
clear guidelines to the courts for how and when to enforce the orders and neither
the legislature’s nor judiciary’s activities threaten the independence of the other.
Brandon provides no case law for why this type of delegation is inappropriate or
why issuing weapons surrender orders would be better left to the legislature.
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Because RCW 9.41.801 does not impermissibly delegate authority to the
courts, it does not violate the separation of powers doctrine.
We hold the weapons surrender statute is constitutional and affirm.
WE CONCUR: