On March 1, 2018, Seattle’s police department became the first law enforcement agency in Washington state to confiscate a firearm under a new law known as an Extreme Risk Protection Order (ERPO) — a gun control law that permits police or family members, with a judge’s permission, to temporarily take firearms from people who may present a danger to others or themselves.
The unnamed 31-year-old man, who is suspected of being mentally ill, is described by neighbors as “intimidating” people and “staring down” customers through store-front windows with a gun holstered at his side. Tony Montana, who knows the man from his apartment complex, said, “He was roaming the hallways with a .25 caliber automatic. 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.”
Note: Washington state allows concealed carry of firearms, with permit.
Seattle police say the department received several calls about the man’s escalating behavior, including from a restaurant near the man’s home in the 2200 block of Second Avenue complaining that the man was harassing them while carrying a holstered firearm. The volume of complaints convinced Seattle police to seek an Extreme Risk Protection Order (ERPO), aka red flag law, requiring the man to surrender all his firearms.
The man refused to comply, so police returned with a warrant, arrested him at his apartment, seized a .25 caliber handgun, and are in the process of recovering several other firearms the man owned that are currently with a family member.
On November 8, 2016, the Washington State legislature passed Initiative Measure No. 1491: Extreme Risk Protection Act (ERPA), which allows police to confiscate firearms from individuals deemed to be mentally ill and so are “at high risk of harming themselves or others.”
ERPA claims that individuals who pose a danger to themselves or others often exhibit signs that alert family, household members, or law enforcement to the threat. Signs that the person “may soon commit an act of violence” can include “acts or threats of violence, self-harm, or the abuse of drugs or alcohol”. Accordingly, ERPA provides “a court procedure for family, household members, and law enforcement to obtain an [extreme risk protection] order temporarily restricting a person’s access to firearms.”
After a family member or law enforcement petitions for an ERPO, the superior court of the state of Washington must order a hearing to be held not later than 14 days from the date of the order. But the court can issue an ex parte Extreme Risk Protection Order even before a hearing.
In that hearing, the individual targeted for an ERPO has the burden of proof and must prove “by a preponderance of the evidence” that he/she “does not pose 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.”
During the hearing, the court will determine whether grounds for an Extreme Risk Protection Order exists by considering “any relevant evidence,” including —
- Any act or threat of violence;
- “dangerous mental health issues” — whatever that means;
- conviction for domestic violence;
- “abuse of controlled substances or alcohol”;
- “ownership, access to, or intent to possess firearms“;
- “unlawful or reckless use, display, or brandishing of a firearm”;
- “recent acquisition of firearms“
In other words, merely owning a firearm is “evidence” to justify an Extreme Risk Protection Order that will be used to remove or confiscate the firearm.
The duration of an ERPO is one year, but the order can be renewed. For Washington state’s one-page brochure on ERPO, click here.
Five states have passed the ERPO law: Washington, Oregon, California, Indiana and Connecticut. Texas has a modified version. At the federal level, Rep. Salud Carbajal (D-Calif.) and Sen. Dianne Feinstein (D-Calif.) introduced legislation last May that would encourage states to adopt ERPO. (Washington Post)
Both Democrats and Republicans are receptive to ERPO, but not the National Rifle Association. In a statement, the NRA says the Extreme Risk Protection Order “strips the accused of their Second Amendment rights [and] would be issued by a judge based on the brief statement of the petitioner.” (Wikipedia)
- Oregon passes GOP senator’s bill allowing gun seizure order without gun owner’s knowledge
- Supreme Court ruled in 2008 that Second Amendment applies to individuals, not militias, and may include military weapons