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.