(TIM) — A law that went into effect in 2017 introduced the Extreme Risk Protection Order (ERPO), which allows law enforcement in the state of Washington to confiscate a gun owner’s firearms if the owner is deemed a threat to themselves or others by a judge. This law, also referred to as a “red flag” gun law, has led Seattle to become Washington’s first city to use the law to confiscate a firearm from an individual
Acting as petitioners, law enforcement agencies, blood-related and adopted relatives, married partners, romantic partners, current and former roommates, and people holding other certain specific associations can apply for an ERPO in Washington against a gun-owning individual considered to be an “extreme risk.”
According to Chapter 7.94 of the Washington legislature’s Revised Code of Washington (RCW) which lists the state’s permanent laws, the petitioner must include an “affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent.” ERPOs may be granted as an “immediate temporary order” or a full order.
Within Chapter 7.94 is RCW 7.94.050, related to temporary, or ex parte ERPOs:
A petitioner may request that an ex parte extreme risk protection order be issued before a hearing for an extreme risk protection order, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to self or others in the near future by having in his or her custody or control, purchasing, possessing, or receiving a firearm.
RCW 7.94.090 states that “Upon issuance of any extreme risk protection order under this chapter, including an ex parte extreme risk protection order, the court shall order the respondent to surrender to the local law enforcement agency all firearms in the respondent’s custody, control, or possession and any concealed pistol license issued under RCW 9.41.070.” A granted ERPO is valid for one year and can be renewed for one-year periods.
While this as been championed as a valuable tool for law enforcement, due process procedures come into question; under the provisions of an ex parte ERPO, the accused respondent will not have the opportunity to face their accuser or challenge the claim until after a temporary order is already issued. This effectively allows law enforcement take a person’s firearms first, with due process occurring after firearms are removed.
While a court hearing typically scheduled two weeks following an order allows a respondent to challenge the ERPO request, the fact that a provision allows for gun confiscation without being arrested or charged with a crime led to concerns reportedly raised by 2nd Amendment advocates as well as civil liberties groups.
David Combs, a vocal opponent of this law when it was known as Initiative 1491, wrote:
I-1491 duplicates new laws and doesn’t provide a treatment model, while Washington State’s ‘Joel’s Law’ passed in 2015 already provides protection for individuals and those close to them by providing families a legal process for obtaining an involuntary treatment to a mental health facility when a person is determined to be a danger to themselves or others. An individual with a record of an involuntary treatment beyond 14 days loses the right to possess firearms indefinitely.
“We now have to go to someone’s house and knock on the door and say, ‘We’re from the government. Can we have your guns?’” Seattle Police Sergeant Eric Pisconski, head of the crisis response unit for the Seattle Police Department, told KIRO Radio’s Dave Ross. “That can get very dangerous.”
“There’s certainly a big concern of the connection between mental health and people exhibiting violent behavior and whether or not they should have access to firearms. The ‘erpos’ give us that tool now as an option,” said Pisconski.
According to a Seattle police statement released on March 2nd, the city became the first law enforcement agency in Washington to confiscate an individual’s firearm through an ERPO:
Over the last year, police had received multiple calls about the man’s escalating behavior. In one recent incident, staff at a restaurant near the man’s home called police and reported that the man was harassing them while carrying a holstered firearm. Police also seized a shotgun from the man in another incident.
In a KATU report, police claimed the volume of complaints about an individual led them to apply for an ERPO, including reports from neighbors claiming the man was “staring” at them through a window while open-carrying a holstered pistol.
“He was roaming the hallways with a .25 caliber automatic,” Tony Montana, who reportedly knows the man from the apartment complex where he resides, told KATU. “And it created a lot of fear obviously because I didn’t know if he was coming after me or gonna just start shooting the place up.” KATU noted that other ERPOs “have been served and executed around the state, but Seattle police said they are the only agency so far to seize a gun because the owner refused to hand it over.”
“The 31-year-old man met officers outside of his apartment and was taken into custody for violating a previous order to turn over his firearms, the Seattle Police Department’s statement read. “Officers then entered the man’s apartment and recovered a .25 caliber handgun. Police are also working to obtain several other firearms owned by the man, which are currently in possession of a family member.”
“We attempted multiple times to get the individual to fulfill that order of turning over their firearms,” Pisconski said. “And he refused multiple times. We were forced, at that point, to take the next step in the ERPO law which is petitioning for a search warrant to go in and enter their home and remove the firearms from them.”
According to KOMO News, Washington is among five states that have a “red flag law” that allows seizure of weapons in circumstances in which a court is petitioned to do so. Rhode Island is considering similar legislation, and an analysis from Rhode Island ACLU has noted a number of concerns including “its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.”