Last year, voters in Washington State approved a gun confiscation ballot initiative (Initiative 1491) that would allow a court to issue an Extreme Risk Protective Order (ERPO) based upon the word of a family member or others that an individual posed a risk to themselves or others. This temporary protective order would permit law enforcement to confiscate all firearms in possession of the person that is the subject of the ERPO, despite the Second Amendment.
Law enforcement agencies in the State had until June 2017 to develop policies and procedures to implement the confiscation process. To read the Seattle Police Department’s ERPO procedures, for example, click here.
The law permits the court to issue the order on a temporary basis without notifying the person that they are the subject of an ERPO petition. The first they may learn of it is when the police show up at the door with the order to confiscate all firearms. This is referred to as an ex parte order, meaning the person that is the subject of the order is not given notice nor a chance to present a defense.
However, the person is entitled to a hearing in two weeks to determine if the ERPO should be allowed to continue or not. If so, the prohibition lasts for one year and can be renewed year after year upon evidence that the individual still remains a threat.
Government’s Gun Confiscation Scheme
Washington is not the only state with similar laws.
California became the first state to enact ERPO in 2014 to empower family members as well as law enforcement to request a judge to issue an order confiscating firearms from a person they deem to be a risk. Connecticut and Indiana already had similar laws that permit law enforcement to seek a court order to seize firearms in those circumstances.
But at what constitutes a “risk” that would enable the issuance of an order to confiscate an individuals’ firearms? That is a purely subjective standard and one ripe for abuse.
Under California law, it has to be shown by “clear and convincing evidence” that the individual poses a significant danger of personal injury to himself or others. In Washington, however, the standard is less strict. A petitioner simply has to show “by a preponderance of the evidence that the respondent poses a significant danger of causing personal injury to self or others.”
Preponderance of the evidence amounts to any probability greater than 50 percent. It is a significantly lighter burden of proof than clear and convincing evidence, which means a claim is “highly and substantially more probable to be true than not.”
In Washington, the claim is that the respondent “poses a significant danger,” a phrase not defined in the law. Whatever probability of harm amounts to “a significant danger,” the preponderance-of-the-evidence standard effectively cuts it in half.
Under this less burdensome standard, if a 10 percent risk is significant, a person can lose his Second Amendment rights even if there is a 95 percent probability that he will never use a gun to harm himself or anyone else. But how is one to go about proving that they are not a threat?
Earlier this year, prosecutors, state legislators, law enforcement, and gun-control advocates convened in New York to push ERPO laws across the country. At last count, 20 states were introducing proposals to create ERPOs laws within their state, including Alabama, Missouri, New Jersey, Nevada, Pennsylvania, and Virginia, among others.
In making its decision to grant the order or not, the court often considers the statements of family or household members, medical and mental health providers, and law enforcement regarding the individuals history of threats, attempted suicide, domestic violence, stalking, DUI, illegal drug use, animal cruelty, displaying warning signs of gun violence, brandishing, or reckless use of a firearm. And in some cases, an order may be issued without any evidence of any criminal behavior on the part of the person against whom the ERPO is issued.
An individual can lose his right to keep and bear arms indefinitely based on testimony that presents little more than the sincere but unjustified fears of people close to him. Worse, the individual is subject to the false testimony of a vengeful ex-wife, former girlfriend, brother-in-law, or distant aunt, which may result in the issuance of an order and confiscation of all guns.
While few people would argue that keeping guns out of the hands of a person with mental problems or a history of domestic violence (federal law already prevents those convicted of a crime of domestic violence from possessing firearms), is not necessarily a bad thing. What is disturbing is that guns can be confiscated from an individual merely upon the word of someone, even someone with minimal contact with the individual, as to that individual’s state of mind without the opportunity for the accused to put forth a defense to the claims.
And this can all be done behind the accused’s back, without their knowledge. The judges are allowed to make subjective decisions on the fundamental rights of gun owners without first having heard from the accused. How can the government do that?
Constitutional Due Process Rights
“Due Process” is a judicial requirement to protect the rights of everyone, providing that laws that are passed cannot contain any provision that will result in the arbitrary, unfair, or unreasonable treatment of an individual.
Both the Fifth and Fourteenth Amendments to the United States Constitution contain a due process clause that acts as a safeguard from the arbitrary denial of life, liberty, or property by the government.
The Fifth Amendment provides:
“No person shall . . . be deprived of life, liberty, or property, without due process of law . . .”
Likewise, the Fourteenth Amendment contains the following:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .”
The United States Supreme Court has interpreted these two clauses identically, as was noted by Justice Felix Frankfurter in his concurring opinion in Malinski v. New York, 324 U.S. 401, 415 (1945). Justice Frankfurter went so far as to state:
“due process of law” — which was one of the great instruments in the very arsenal of constitutional freedom which the Bill of Rights was to protect and strengthen.” 324 U.S. at 415.
The Supreme Court has distinguished between “procedural due process” and “substantive due process.” A substantive due process challenge seeks a particular outcome instead of merely contesting procedures, whereby the Supreme Court recognizes laws that limit a constitutionally based liberty to be unenforceable.
Procedural due process, on the other hand, requires the government follow fair procedures before it can deprive an individual of life, liberty, or property. At a minimum, due process requires the government afford a person notice and an opportunity to be heard before being deprived of a fundamental right.
Under the proposed laws being considered by the various states, guns can be confiscated without the person ever being aware of a court proceeding. The first time they may be aware of losing the right to possess a firearm may be when the police show up at their home with a court order to search and seize all firearms.
But doesn’t that violate the Second Amendment right to bear arms that the Supreme Court has ruled to be constitutional? Is the government overstepping its bounds?
Due Process and the Second Amendment
We all recognize that the Second Amendment does not create an absolute right to possess firearms that cannot be restricted under any circumstances. Convicted felons and those individuals who have been adjudicated as being mentally incompetent are prohibited from possessing firearms. But in all of these cases, the individual rights were taken away only after due process of law occurred—a criminal trial or a mental-competency proceeding.
In California, the petitioner has to show by “clear and convincing evidence” that the respondent poses a significant danger to himself or others. That particular standard of proof requires a showing that the claim is substantially more likely to be true. In Washington, the petitioner has a much lesser burden to overcome in order show that an individual poses a significant danger to themselves or other and that is “by a preponderance of the evidence.” Preponderance-of-the-evidence-standard amounts to any probability greater than 50 percent.
But in the case of an ERPO, there is no opportunity for the accused to be heard prior to an initial issuance of the order and confiscation of all firearms. Doesn’t “due process of law” apply to the Second Amendment?
Procedural due process is meant to protect an individual from being deprived of life, liberty, or property unjustly or as the result of a mistake by allowing the person to contest the basis upon which the government seeks to deprive them of a protected interest. The individual must be afforded notice and a hearing before an impartial court to confront and cross-exam his accusers.
However, the Supreme Court has said that due process requirements depend upon the circumstances. The Supreme Court noted in Walters v. National Association of Radiation Survivors, 473 U.S. 305, 320 (1985) that due process:
“is a flexible concept—[and] the process required by the clause with respect to termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur.”
In the context of domestic violence, the Supreme Court reasoned that the government’s interest in protecting the victim from harm outweighs the respondent’s property interests and therefore no notice is required prior to an order being issued.
Carrying it one step further, the Supreme Court has stated that “[T]he Second Amendment has not been incorporated through the Fourteenth Amendment, and as such is not applicable to the states.” See, e.g., Miller v. Texas, 153 U.S. 535, 538 (1894).
In effect, the Supreme Court has determined that the due process protections spelled out in the Second does not apply in actions taken by a state and not the federal government.
What About the Laws in My State?
Each state has its own law regarding restraining or protective orders and their impact on the right to possess firearms. We at U.S. and Texas LawShield® have reported on this issue previously for various states. You can read reports or watch videos from our Independent Program Attorneys by selecting a state: Texas, Virginia, Oklahoma, Georgia, Missouri, Florida, and Pennsylvania.
Independent Program Attorney Emily Taylor recently discussed ERPO laws with Sam Malone. You can listen to that report by clicking here.
To learn more about your state laws regarding firearm possession or justifiable use of force, attend one of the workshops and seminars that U.S. and Texas LawShield sponsors across the country. Hear directly from one of our network of Independent Program Attorneys in your state as they explain the laws and answer your questions.
To find and register for an event, call (877)448-6839 or go to www.gunlawseminar.com.
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