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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
Exactly, but that’s not really the point of laws such as this.
Here in New York there was a proposal for medical providers and others to report to the government potential mental health concerns. The medical providers pointed out that a major effect would be to discourage people from seeking professional help for mental health.
If you sit down and think logically through the problem, you will find that the things we’ve done to date haven’t really worked. Criminals still get guns, and you can’t tell if a crazy person is crazy until after they shoot up a school. But the goal of the gun control advocates is not elimination of violence, but the abolition of guns. They are lying to the voter, and playing on their emotion. We are telling the truth. But the argument is non-convincing to many people. So what is the suggestion? To continue to give ground on the issue, in an effort to convince the voter that the problem is fixed?
In the tragic situation Kate cited, what evidence is there that, lacking a firearm, the man wouldn’t have simply used some other weapon, such as a knife or baseball bat? After all, Lizzy Borden took an ax…
I remember reading that, the same week of the Columbine killings, some crazy man intentionally drove his car through a playground (at a daycare center in California, IIRC), killing several children and injuring many more. Of course, it got no national media coverage.
Crazy is crazy. Focus on the crazy, not the implement, and you’re likely to prevent more tragedies.
Yeah, I read that. Did I suggest waiting 5 days? There are circumstances when people can be arrested immediately and without a warrant. Maybe criteria can be established that strikes the right balance between the individual’s rights and public safety. If not, then the process must run its course. Some people arrested for violent crimes are released on bail. Some of those commit crimes while out on bail. Yet we still have bail. Such are the travails of living in a free country.
I’m actually with @spin inasmuch as I don’t think there’s a problem that needs solving. That said, the problem will be “solved” with or without us. If we engage we may effect the nature of the process.
The federalization of rights enforcement is a liberal game. Roe is decided, with a set of qualifications and limitations which are immediately ignored, evaded and then flouted. Every conservative attempt to restrict or modify abortion through the second trimester on demand is judicially quashed.
McDonald is decided, and very little practicable change in the gun confiscation schemes of blue states follows.
Sure, in a world of Roe you might cheer McDonald. But which do you see being reversed next year? Which is going to be imposed in every red state, county and township forever?
Let blue states become gun free zones, and suffer the crime, real (rather than fantasy) racial polarization of everyday life and exodus of law abiding citizens.
Let red states become gun friendly zones, with low crime, racial peace, property rights loving transplants from blue states, a vibrant gun sport culture (the pursuit of happiness!), and a well-armed citizenry when the leftist fantasy politics of both coasts becomes a national nightmare.
Yes, just much less ground than they’re attempting to take in the WA ballot initiative. It’s called politics. When people think they’ve identified a problem they look for solutions. If initiatives like 1491 are the only solution on offer, that’s the solution they’ll pick. You can try to convince voters that it’s not really a problem, but I don’t think that will sell.
There are two conflicting goals here: 1) to reduce the number of deaths caused by those at high risk for violence, and 2) to protect everybody’s constitutional rights. Politics is how we resolve conflicts like these. You can stand on principle and rely on the courts to defend our constitutional rights, but the foolishness of that approach should be obvious. I think the best way to protect our rights in this specific case is to influence laws in such a way as to limit the damage.
The five days are hard-coded in the proposition being voted on in WA that inspired the original post:
“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.”
Wash. Const., “SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”
I would think the initiative fails constitutionality on its face against this provision, but for our Supreme Court: 6 women, 3 men, ranging from left to extreme left, so there’s that.
Sigh.
I was briefly convinced by Powell’s speech, too. Later I learned he didn’t believe what he was saying, but was doing it for the team. But by that time we all knew it was pretty weak justification.
Yeah—the other unintended consequences of these laws is that the lawmakers can’t imagine—just can’t!—that there are people (yes, including —gasp!—women!) who will weaponize them.
DocJay, I was in a class on crisis intervention and mental health for law enforcement; the teacher says men are 4x more likely to be diagnosed with antisocial personality disorder. Is that because men’s symptoms are more likely to be obviously violent and visible, or because men are really more likely to have it? (Having known quite a few women with, for instance, “no sense of remorse,” it didn’t seem quite right to me, but what do I know?)
Very much agree.
When it comes to the incident I responded to: had the man not been able to get his hands on a firearm, he might have used another weapon…but his ex-wife did have a gun (specifically purchased to protect herself and the kids from him) so she would’ve had the advantage. Unfortunately, she didn’t have the gun in her hands when he showed up. I wish she had.
FWIW, one lesson I took from this tragedy is that people who know themselves to be potential targets for violence—e.g. the ex-wives of violent men—would be better off living in close proximity to other people. In this case, she and the kids lived on a country road. She had neighbors, but none that were literally next door. I wish she’d been advised to rend a house or apartment in town.
But I am absolutely with you when it comes to what the priority should be: for every “nutcase” who shoots up a school, there are thousands of human beings who are not violent, merely very ill, and living miserable lives because the mental health “system” is desperately broken. A better system would save their lives as well as the lives of those who might otherwise have been harmed by the few violent patients.
I agree with your comment, Spin. I’d just add this: Adam Lanza’s mother did know that her son was crazy, if by “crazy” we mean that something was very wrong. She obviously didn’t know the extent of it, but even if she had, there are vanishingly few options even for people with means, resources, and the sense to seek help.
Leaving aside the extremely dubious wisdom of using guns as a means of bonding with her son, let’s say she recognized that Lanza was really ill, and likely to be a danger to himself or others. What could she have done? She could have taken him to a doctor, assuming he was willing to go. If he refused, she couldn’t have forced him. If he had some sort of obvious crisis, and either his mother or the police could persuade him to go to the E.R. for evaluation, the chances are very good there wouldn’t have been a bed available in any of the state’s mental health units—it is not uncommon for people to sit for days, even weeks in the E.R. waiting for space to open up. If Lanza’s mother couldn’t persuade him to get help, there’s nothing she or the cops could do; it’s not illegal to be nuts, and it is very difficult to “blue paper” –that is, involuntarily commit someone even when they’ve already exhibited potentially dangerous behavior (the form, in Maine, is blue, hence the term) let alone when they’re just kind of spooky and strange.
Would it have been better if Lanza’s mother had clued in, and at the very least decided it might be a good idea to store her guns off-site, or in a gun-case that her son couldn’t open? Absolutely, and if the NRA doesn’t provide a lot of education to gun owners around the dangers of mixing guns and mental illness, it ought to.
But, again, a better m.h. system might have saved those little kids’ lives, but it would also improve the lives of all the schizophrenic, bipolar and clinically depressed citizens of Newtown and their families.
Let us assume that Lanza’s mother had been “clued in,” and that she lived in Washington. Here is what she could have done:
She could have called 911 and told them that her son was suffering, she thought, from mental health issues and was a danger to her. 911 would have dispatched local law enforcement as well as an ambulance. Law enforcement would have arrived on the scene and assessed the situation. If safe for the paramedics, they’d have evaluated him, and if necessary, taken him to a local psychiatric ward. There he’d have been further evaluated and probably treated. I know this is how it works because I did exactly this when my neighbor went crazy. They took her away and locked her up for a short period, after which she was checked in to assisted living, where she lived out the rest of her days. People made sure she was on her meds, she was closer to her daughters, and she never acted crazy around my kids again (this being the most important part, to me.)
Now, if Adam Lanza did not display any behaviors which would have allowed him to be taken in to custody, then that is what it is. If you can’t take him in to custody, you can’t take away his guns (leaving aside the fact that he used his mother’s guns, and the fact that if she’d been clue id, she’d have locked her guns up so he couldn’t get at them.)
It is very easy to say with hindsight what we could have done. But hindsight is, well, hindsight. We have not yet invented foresight.