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On People Control
Among the various down-ticket items on the ballot for Washington State voters is so-called gun control initiative aimed, ostensibly, at keeping guns out of the hands of people likely to hurt themselves or others. I read Initiative Number 1491 over my morning coffee, and you can too. It provides law enforcement agencies and others a vehicle for obtaining a court order preventing someone from possessing, buying, or using firearms.
The initiative begins by outlining who can petition (the petitioner) the court to have an individual’s (the respondent) second amendment rights temporarily abridged. Those people are law enforcement officers, as well as a person who has some relationship to the respondent, such as a family member, a step parent, a girlfriend or boyfriend, a co-parent (regardless of relationship status), or someone who lives with the respondent, even someone who has lived with the respondent within the previous 12 months.
The proposal also outlines what information must be provided to the courts by the petitioner, as follows:
- A description of why the respondent poses a threat to themselves or others;
- A description — including how many, of what kind, and location — of any firearms the respondent currently owns or maintains; and
- Whether there is a restraining order, or any lawsuits pending with the respondent.
Upon receipt of a properly constructed petition (as verified by a court clerk), the court must order a hearing within 14 days. Local law enforcement is then required to serve notification of the hearing at least five days prior to the hearing. The proposal then outlines how a court goes about determining that, based upon a preponderance of the evidence, that the respondent does in fact present “a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” The reasons for making that determination can include “but are not limited to” threats or acts of violence, conviction of a domestic violence crime, a dangerous mental illness (undefined in the proposal), a previous order under the proposed law, the intent to purchase a firearm, arrest for a felony, evidence of a substance or alcohol abuse, and a handful of other things.
If the court determines that the respondent represents a risk, “the court shall issue an extreme risk protection order for a period of one year,” and the respondent is then required to surrender any and all firearms to local law enforcement. The proposal allows for law enforcement to go to the respondent’s home and secure the firearm and — if they feel that the respondent has not surrendered everything — seek a court order allowing them to search the premises. Law enforcement officers are allowed, under the proposal, to search for firearms identified in the petition without a search warrant.
The initiative would also require all law enforcement agencies in the state to create, by June of 2017, policies and procedures for confiscating, inventorying, and storing firearms taken under the proposal. Fortunately, it also requires law enforcement to provide a receipt to the respondent of all firearms confiscated.
The proposed law also outlines how the respondent can have their rights restored prior to the expiration of the order, as well as how the petitioner may request to have the order renewed for another year. For the respondent, they can, once each 12 months, request a hearing of the court, which must be ordered no less than 14 days from the request, but no more than 30 days. The respondent then has the burden of proof to show the court that he or she is no longer a danger. A petitioner simply needs to file a motion with the court to have the order renewed. That date must be held within 14 days of the motion. If no one contests the motion, the order may be renewed without any evidence being provided. The respondent must be served notice of the hearing, and can provide evidence, but the burden of proof is, once again, on him or her.
In brief, this initiative is complete load of hogwash. I object for two reasons:
First, I think the broad definition of the term “petitioner” will lead to abuse. An ex-girlfriend can say the respondent threatened her with a gun, and then it’s her word against his. The proposed law offers guidelines as to how a court would make a decision, but does not limit the court to those things.
Second, I reject the notion that because you think a person may commit a crime, you can limit their constitutional rights. And I do not like the fact that, if such an extreme risk protection order were in place, that it is up to the respondent to prove that he or she isn’t a threat.
Obviously, I am hoping this initiative fails. But I am afraid it won’t.
Published in Guns
Interesting.
I agree that there is a lot of potential for mischief in this, at least as it’s drafted. Former or even current “partners” are indeed known to weaponize laws (e.g. domestic violence laws) and I can imagine this sort of law being used just in that way.
Having just come from the first day of a weeklong class in mental health issues (addressed to LEOs), I wonder if there could be a way to craft a much narrower law that allowed LEOs (rather than private citizens) to file for an emergency (temporary) removal of firearms from a person who is at risk of suicide or homicide? That is, would it help if an ex-girlfriend had to go through a neutral third party with some capacity for disinterested investigation, rather than being able to bring the complaint herself?
I know that, if it was my adult child who was at risk, I would want there to be some provision for law enforcement to be able to remove at least one element from a potentially tragic situation?
One of the murders I have been involved with as a chaplain was one in which a domestic violence offender had his weapons taken away from him…and his dad loaned him a shotgun on the ground that it “wasn’t fair” to deprive him of his right to hunt grouse (or whatever) just because of some he-said-she-said thing… and the next thing you know, the d.v. offender’s wife, both children and the offender himself were very dead.
So a.) I get why one might want to take firearms away from certain people even before they’ve been convicted of a crime and b.) even then, some idiot might help them get their hands on a gun.
I also wrote about this. I didn’t say it in the post, but I think this initiative is unconstitutional.
I am strongly opposed. Which is no surprise. There isn’t a single initiative on the ballot that any conservative should even consider voting for. Everything is designed to take WA from liberal to ever more liberal.
There are bigger problems. First, the standard is up in the air. A judge orders it, and the burden shifts to the person to prove that he is, in fact, mentally stable. Who’s opinion? What standard?
The issue with your example is the in-retrospect element. Judges would love to predict and eliminate all harm, and judges in WA are just arrogant enough to do it. I see it every week, and it absolutely floors me what they believe they can “foresee.”
Government is force, and preemptive government is never a good idea.
Yes. I know.
Yup.
There is a law, here in Maine, against providing a firearm to a prohibited person, and I just hope that father-of-an-offender got stomped by it. (You would think that losing his two grandchildren was sufficient wake-up, but he was still defending his son, and claiming that “there are two sides to every story.” Uh huh.
What’s that saying? Good cases make bad law, or something like that?
We have a gun referendum here that is likely to pass—“closing the gun show/private sale loophole.” It’s going to prove unenforceable, and the wardens are going to be in the unenviable position of having to either enforce it or overlook violations.
I’m sorry. I didn’t know you wrote about it or I wouldn’t have. I wrote mine in a hurry so I’m sure yours is better. You being a lawyer and what not.
#MinorityReportMuch?
I get it too, but as has already been pointed out, it is a bad idea.
It applies to going to war in Iraq as well as to domestic violence.
Voters of this state passed that a couple of years ago. Law abiding citizens now must pay for background checks completed by FFL dealers to complete private sales, and criminals still just do it the same way they always have.
I thought that until Colin Powell convinced me of the severity and imminence of the threat. Even the dems were convinced of it.
So you’re going to give someone who you think might be dangerous a minimum of five days notice that they’re about to lose access to their weapons.
What could possibly go wrong with that?
I agree with Kate – no easy answers on this, but she gave a good example that probably happens a lot. That doesn’t mean nothing can be done. Gov. has a way of complicating things. The kid who shot up all those people (children) in CT, then his mother is an example. She took him to the shooting range! Society has become more violent and too many mental health issues falling thru cracks, especially with HIPPA laws. Thanks Kate – you have a tough job.
Is there a sinister plot unfolding, to incite gun violence? ;-)
I don’t mean to be glib, but there is an easy answer: unless you’ve committed a crime, your rights shall not be abridged. Going along with that is another easy answer: I am not responsible for the deaths of people who’ve been shot by nut jobs.
I know, because I’ve looked at the statistics, that violent crime in America is declining. I do not feel the need to figure out, every time there is a gun death, how to prevent that particular gun death from ever happening again. What I do feel the need to do is defend second amendment rights from people who would use those gun deaths to attack those rights.
Hopefully, it is defeated. If it this passes, I hope there is a case against it based on the constitution.
We already have laws on the books for “future crimes” such as drinking and driving, speeding etc.; so Minority Report has already come true. Complacency on lesser laws is how “people” get used to the idea of punishing people before they commit crimes; and yes, the long term consequence is a population who “sees merit is stripping rights of *some* people”.
Encroachment of rights is a long journey with many small steps; and some people yield willingly.
So if the woman you are stalking tries to get a gun, you can petition the court to stop her?
I think California already has this asininity on the books, and this is Washington’s way of playing keep up. The folks in Seattle won’t stand for California to be more crazy than they are.
Where is there a federal constitutional right to bear arms that can be violated by state law? Must be somewhere in the shadows or penumbras or the incorporative ether, I guess? This type of calculated step-by-step confiscation is going to seem the soul of moderation and prudence within a few years. Kevin Williamson’s argument — which many free trade purists loved when directed at unemployed manufacturing workers — is probably the only option: MOVE.
I used to take solace in Twain’s “never been out west, closest I got was California” quip. But we’re just a few years away from the same progressive takeover in Colorado.
We’ll all be in Idaho someday. Greet meetups ahead.
My ex would have loved this law for the pure spite.
Not at all! I’m only saying that I agree with you. My version was an overview of the entire ballot, which gives WA conservatives nothing to be happy about: A Conservative’s Guide…
“Why don’t we just pass a law that lets us lock up crazy people who might harm themselves or others?”
“Because that would infringe upon their rights! It’s not like owning a firearm is a right!”
Er…
Only if she lived with you in the last year, or you have a kid together. Or you are otherwise related.
I keep asking about taking away someone’s computer, telephone, and internet access using the same criteria that are proposed for taking away firearms (since someone can incite or provoke a fair amount of violence using electronic communications). That often causes some consternation among those who can think far enough to see parallels among the various rights that a person is supposed to have (some of which are enumerated in the amendments to the US Constitution).
Devil’s advocate here: you are unlikely to shoot someone with your computer. Right? I don’t think your comparison makes the case well.
The government has long had the ability to impose involuntary civil commitments. Such commitments aren’t terribly controversial despite the committed’s loss of nearly all constitutional rights. I posit that the lack of controversy is attributable to infrequent use and a relatively high standard for the loss of those rights.
I agree that the proposed law seems to treat the loss of gun and property rights too casually, but I also think it’s advisable for conservatives to propose improvements rather than reject the idea entirely. Liberals respond to mass shootings by saying guns must be banned because crazy people can access them. Conservatives correctly reply that the problem isn’t the guns, it’s the person. A reasonable person acting in good faith might conclude that it’s unlikely that we’ll eliminate mental illness, so it’s advisable to take guns from the violently mentally ill. A careful and limited process to confiscate guns which errs on the side of protecting the individual’s constitutional rights is probably in everybody’s best interest. There’s no doubt that the left will continue their efforts to disarm us all, but how we respond to issues like this will determine how much support those efforts get from the political center.
I have bought and sold handguns over the years. My personal preference was to place a handgun that I wished to sell on consignment with a FFL dealer because they would do the background check on the buyer.
The mental health aspect of a prospective buyer is usually impossible to track unless they have committed a crime. For example the Santa Barbara shooter was able to purchase a firearm even though he was seeing a therapist concerning his expression of his violent fantasies. When the shooting hit the news his parents and therapist started trying to locate him.
I do not agree with the way that Initiative Number 1491 is written, but I do believe that a way to track mental health issues is going to be necessary, the how it should be done will not be easy to find.
If you have a neighbor that wishes to buy a firearm from you and his kid is burying dolls in the lawn leaving their heads exposed and then runs over them with the lawnmower, well you might not want to sell him the gun. Just sayin’.
I agree, but I doubt this will be a winning argument. People read press reports that killers were suspected to be risks before the fact and they want to do something about it. Even if the numbers of victims are small, it seems like a problem that can be fixed so large numbers of people will support efforts to fix it.
As I stated in my earlier comment, if you really think someone is dangerous, the last thing you want is a “careful and limited process” where said dangerous person has plenty of notice that they are going to have their guns taken away. You need to take the guns “now” or lock the person up “now”, not give them five days to stew over the obvious injustice that’s about to be done to them [their perception] and plan a pre-emptive response.
If the person is non-dangerous enough that you can give them five days, then they are non-dangerous enough to not have their rights restricted.
If they are dangerous enough to have their rights restricted, you can’t wait five days.
Situations like that cited by Kate are indeed tragic, and we instinctively want to try to prevent them. Since there is no way to predict with precision which specific person will get violent, we would need to impose restrictions on some number of people who would not get violent. The more people we restrict, the more likely we are to restrict the person who would otherwise get violent. But then we have to decide how many “innocent” people we are going to restrict to achieve what level of certainty that we have the “guilty” one (kinda the mirror of how many guilty people are you willing to risk setting free in order to avoid wrongly convicting an innocent person).