Mimesis Law
22 March 2018

West Coast “Gun Protection Orders” Violate Constitutional Rights

November 17, 2016 (Fault Lines) — Gun ownership is arguably one of America’s hottest and most polarizing discussion topics. As shootings pop up with alarming regularity, more and more people keep pushing for “common sense” gun regulation, if not a complete ban on civilian gun ownership. Now Washington joined California as the latest state to pass legislation as asinine as a “Blue Lives Matter Bill.” All that is needed for either state to strip a person of their Second Amendment rights is a form of “gun restraining order,” depriving a party of their constitutional due process rights.

California’s “gun violence restraining order” law allows “immediate family members” to request such an order if a person can show a “substantial likelihood the respondent would [pose] a significant danger, in the near future, of personal injury to himself, herself, or another.” In those cases, a cop can serve the “gun violence restraining order” on the respondent, who is then required to surrender all firearms in his or her possession to the local police department.

Such orders can last up to three weeks before a hearing, at which point petitioners must prove by “clear and convincing evidence” returning the respondent’s firearms is a bad idea. If a party convinces a judge, the “restraining order” goes into effect for a year. After a year’s time, the order may be renewed for another 365 days if the petitioner can still meet the “clear and convincing” burden of proof.

Washington, not to be outdone by California in its quest to purge the state from nasty shooty things that go bang, extended the scope of those who may petition for their “extreme risk protection order” to include “dating partners,” unwed parents of children and former roommates. The Evergreen state also lowered the burden of proof at the hearing to “preponderance of the evidence.” After the initial ex parte deprivation of two weeks’ time, Washington petitioners merely need to show a “reasonable fear” the respondent “poses a significant danger to self or others.” If a petitioner can prove this nebulous standard with a burden of proof reserved for civil trials, the “extreme risk” order is extended to a year.

As Reason’s Jacob Sullum notes, Washington’s wording is far worse than California’s, as it requires neither a “substantial likelihood nor evidence that the threat is imminent.” In other words, if Matthew Corrigan lived in Washington state and his relatives got scared something might happen after the botched search resulting from his call to a suicide hotline, a quick trip to the court house and filing out a few forms means the Iraq War veteran lost another right he fought so hard for the rest of us to keep. The “extreme risk protection order” doesn’t exclude law enforcement, so if Gregg Bigda worked in Aberdeen instead of Springfield, Massachusetts, a girlfriend could call in an order and Bigda loses his guns.

Due process isn’t just cast to the wind in Washington’s new law. The new statute allows “extreme risk protection order” hearings to be conducted via telephone “to protect a petitioner from potential harm.” This ostensibly violates the accused’s Sixth Amendment right to confront their accuser, since petitioners just have to call the court, express fear for their safety “make assurances” they are who they say they are, and then the hearing can proceed. This new “trial by iPhone” method of protecting those afraid of gun violence effectively creates a new Star Chamber type of proceeding, and almost seventy percent of Washington’s voters welcomed this constitutional violation with open arms.

Why should those of us who don’t live in California or Washington be concerned about these new laws? Jacob Sullum boils it down to a key element many voters might have overlooked in both states. In the face of potential gun deaths, judges are prone to err on the side of caution, denying respondents their Second Amendment rights.

[By] combining a vague criterion (“significant danger”) with a light burden of proof (preponderance of the evidence), Initiative 1491 gives judges license to do what they probably will be inclined to do when confronted by a worried or frightened petitioner: err on the side of what seems to be caution by issuing the order, even if the respondent in all likelihood poses no real threat to himself or anyone else. And once someone loses his Second Amendment rights, that fact makes a decision about whether to lift an order or let it expire even easier.

Expect more states to pose “initiatives” like this in the coming months as a “reasonable” and “sensible” method of reducing or eliminating gun violence. If and when such a measure appears on ballots for your state, be concerned. What appears a “sensible” and “reasonable” method to protect others from potential gun violence is really a deprivation of Constitutional rights wrapped in a nice package “for your safety.” The fact such laws are worded for your “protection” don’t sanitize that fact.

12 Comments on this post.

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  • Gabriel
    17 November 2016 at 9:41 am - Reply

    Sorry, did Washington just imply their courts are a place where you might reasonably expect to get shot?

    • CLS
      17 November 2016 at 11:45 am - Reply

      That’s perhaps a bit much of an implication for my tastes. I would say Washington’s just implied they don’t give a shit about the right to face one’s accuser.

  • Leroy
    17 November 2016 at 10:09 am - Reply

    I think you are painting with too broad of a brush here. While Washington’s Law is clearly problematic, California’s is fairly reasonable.

    The level of evidence, strict time limits, and full court proceedings specified by California would seem to alleviate due process concerns. The devil in the details is what the courts will consider to be “clear and convincing evidence”.

    Also, it will be interesting if the standard is upheld or the SCOTUS decides the standard should be “Beyond reasonable doubt”.

    Time will tell.

    • CLS
      17 November 2016 at 11:56 am - Reply

      If I’m painting with a broad brush, it’s because I’ve worked domestic violence dockets operating with protocol similar to the ones outlined in California and Washington’s new “gun restraining order” hearings. Time and time again, judges err on the side of caution when handing out orders of protection because they don’t want to be the person who lets abusers walk without some protection in place for the accuser.

      The same will happen with California and Washington’s courts dealing with these new “gun restraining orders.” Judges will err on the side of caution because they don’t want to be the person who lets a potential gun death happen on their watch. The orders will get handed out like candy, and you’ll see the accused’s Second Amendment rights walked back for “protection.”

      This is the end run for “common sense gun control.” Issuing orders “for your protection,” because no one likes gun deaths.

  • James Gordon
    17 November 2016 at 4:10 pm - Reply

    Leroy, I am appalled. And, I’m sorry . . . this is going to be a long post.

    There are no due process protections under California’s law for the purported gun owner (“PGO”) at the initial ex parte hearing. The applicant comes to court – with no notice to the PGO – and gets a free ride at establishing good cause. There will be no one at this initial hearing to provide evidence to undermine the applicant’s evidence. The PGO’s rights are not protected by a jury – the ex parte application will be considered by a judge. Given this inherently unfair procedure, I fully expect the court will hand out initial GVROs like candy on Halloween. The difference is that the candy in this case is an order compelling the PGO to surrender private property to the state. Moreover, this order will be served by an armed agent of the state. Do you think every PGO will happily turn over all firearms and ammunition in the owner’s possession? What do you think will happen if a PGO tells the law enforcement officer, “I’m sorry, but I do not possess any firearms or ammunition”? I can tell you what will happen because the law anticipates that outcome . . . it authorizes search warrants to compel compliance. In other words, the law creates an avenue for the state to force its way into the homes of people for whom there is no showing of a crime (the state will argue the crime is that the PGO is in possession of contraband because the applicant said the PGO possesses a gun). Do you even care about the 4th Amendment Leroy? Do you have any idea how dangerous and upsetting a non-consensual search is? Have you considered the consequences of the fact that the state does not and cannot know all the firearms and ammunition in the possession of every resident? How can the state know whether a PGO turned over all the contraband or whether a PGO is being truthful when the PGO says “I don’t have any”? I see a search warrant being issued fairly frequently in connection with GVROs.

    Furthermore, what good do you think these GVRO will actually do? If the PGO really intends to harm an individual, the GVRO does not prevent that harm. The PGO will be free to go anywhere s/he chooses. The PGO will be free to go to his/her toolbox and get a hammer . . . which means that the GVRO presents no barrier to domestic or ad hoc violence. This is not just a quibble . . . the GVRO law was passed in response to the Isla Vista killing rampage. The Isla Vista nutjob killed 6 people . . . three with a knife and three with a gun. In addition, he injured other people with his car. In other words, the GVRO would not have prevented the Isla Vista massacre. We are surrounded by weapons . . . a GVRO does not prevent violence. Nor does the GVRO present a significant barrier to a truly dedicated psychopath. The PGO will be free to break into houses until the PGO finds a gun and will be free to illegally buy a gun on a street corner in Compton or Oakland. Thus, if the PGO really needs a gun (for, e.g., a mass shooting), the GVRO presents only an illusory barrier.

    • Leroy
      18 November 2016 at 11:00 am - Reply

      James, are you in any way familiar with the current process for obtaining a warrant (either to arrest or seize property/evidence)? Because the California process looks a incredibly similar to that, except it gives the accuser only three weeks to make their case. They must prove to a court by the clear and convincing evidence standard that the accused is a danger. A higher standard than is needed to seize property or arrest an individual, which is Probable Cause.

      The defendants due process rights are insured by the hearing in front of a Judge where the accuser/state must prove their case. This is pretty much a standard feature of our system, where a preliminary order is granted, and then the state/accuser must prove their case at a later hearing. The only problem I can see is how the courts will define clear and convincing evidence for these types of cases. If as Chris states they use the better safe than sorry approach, then this is clearly a problem. But, the point of getting to the hearing is not a problem.

      • James Gordon
        19 November 2016 at 10:32 pm - Reply

        Leroy, you seem to believe that the the initial deprivation of property following an ex parte hearing is no big deal. To the contrary, it is a very big deal – for 21 days a person will be deprived of an enumerated right based upon a non-adversarial hearing.

        But, let’s go back even further. Search warrants and arrest warrants are requested by agents of the state. This, by itself, protects the rights of the people. Law enforcement officers seeking a warrant do not (typically) have a personal relationship with the subject of the warrant. Accordingly, the requesting officers (typically) have no personal animus towards the subject. This protection is thrown out in the context of ex parte GVRO. Here, the people seeking the GVRO will have a personal relationship with the subject. The upside of this personal relationship is that the petitioner will have a deep knowledge of the subject and the petitioner may be the best person in the world to determine if the subject poses a significant danger, in the near future, of personal injury to the subject or others. The downside is that the petitioner also is in the group of people with the greatest potential for wanting to prejudice the subject. I assume you know that marital discord is not uncommon. Thus, by creating a procedure that allows immediate family members to seek GVROs, the state has created a new weapon for unhappy family members to use.

        You also seem more willing to trust the state than I. You acknowledge there will be a problem if the state uses the “better safe than sorry” standard. Based on my knowledge of how TROs are handled in California, I can pretty much guarantee there will be a problem. I am very much of the belief that the state will abuse any power given to it. While my belief is only a theory, it has proven remarkably accurate. Why give the state another power to abuse when there already is a procedure that would be more effective than a GVRO (and here I am referencing sec. 5150; please do not interpret this as approval of 5150).

        Moreover, as written, the law requires the court to notify the DOJ after a GVRO terminates. There is, however, no enforcement mechanism or penalty for failure to notify the DOJ. Nor is the DOJ required to clear a subject after the passage of a set period of time. Here too I expect that there will be a problem in that there will be many instances in which the court will not notify the DOJ upon the termination of a GVRO. Notifying the DOJ will, undoubtedly, be a pain in the tush and there is no motivation for the court to go through that procedure. Which means the subject will face arrest if the subject tries to buy a gun while the DOJ is under the misapprehension that the GVRO is still in effect. Even if the subject isn’t arrested, the subject will be unable to legally buy a gun (the DOJ will advise the seller that the subject is prohibited from buying a gun) without going through the expensive procedure of petitioning the court to notify the DOJ that the GVRO has terminated.

        Finally, I note that you concede that GVROs will not prevent violence. So, what’s the point? Why give the state more power to abuse where there is no significant upside?

  • Pedantic grammar police
    17 November 2016 at 7:00 pm - Reply

    I have to laugh at arguments over whether this or that gun law is constitutional. The answer is always “no.” The 2nd amendment is very clear. “Infringed” has a meaning. Whether this makes sense in today’s world is a separate argument.

    • Leroy
      18 November 2016 at 11:05 am - Reply

      You are aware that there is no such thing as an absolute right? Just as freedom of speech, religion, to Vote, ect… can all be abridged in specific circumstances, so can the right to posses a weapon.

      • Pedantic Grammar Police
        18 November 2016 at 11:56 am - Reply

        No Leroy, I just fell off the turnip truck, I am unfamiliar with the advanced legal concepts you describe. If I would just take the time to understand these advanced ideas, then maybe I would agree with you that the 2nd amendment doesn’t really mean what it says.

        • Leroy
          18 November 2016 at 3:21 pm - Reply

          I will refer you to District of Columbia v. Heller, where the SCotUS ruled that ” 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.”


          So as per the SCotUS, your right to keep and bear arms can be limited. And, as they are the ones who have the final say in what the Constitution means you are wrong. Much like the 1st Amendment does not give me unlimited Speech Rights (Slander, Libel, True Threats, ect…) the 2nd does not give you an absolute right to keep and bear a weapon.

          • Pedantic Grammar Police
            18 November 2016 at 4:21 pm -

            If an old guy in a robe tells me that something can be limited without being infringed, do I look at the dictionary or do I just believe him? I’m not claiming that we should all have nuclear weapons. I’m claiming that the 2nd amendment is routinely violated, to the point where it has become nearly meaningless, and we’re all living in Animal Farm land. Supreme Court decisions are how we change the writing on the barn.