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Ballot Measures

Initiative Measure No. 1491 concerns court-issued extreme risk protection orders temporarily preventing access to firearms.

November 8, 2016 Washington General Election
Description:

This measure would allow police, family, or household members to obtain court orders temporarily preventing firearms access by persons exhibiting mental illness, violent or other behavior indicating they may harm themselves or others.

Should this measure be enacted into law?

Washington law provides for civil protection orders in certain circumstances. These orders restrict one person from contacting another person. Civil protection orders are mostly entered in family law cases, such as divorce proceedings, where domestic violence is alleged. Protection orders also can be issued to protect victims during criminal cases and in other circumstances where a person can show he or she is in danger from another person.

A person subject to a protection order may be required to surrender his or her firearms, dangerous weapons, and concealed pistol license while the order is in place. This can happen if four conditions are met: (1) the order restrains the person from harassing, stalking, or threatening an intimate partner, a child of an intimate partner, or the person's own child (an "intimate partner" is a current or former spouse or domestic partner, a person with whom the restrained person has a child in common, or a person with whom the restrained person shares or shared a residence in a dating relationship); (2) the order includes a finding that the restrained person is a credible threat to the physical safety of the intimate partner or the child; (3) the order specifically restrains the person from using or threatening physical force against the intimate partner or child; and (4) the restrained person was given notice and an opportunity to participate in a hearing before the order issued. It is a crime for a person restrained by such an order to possess a firearm.

A court sometimes may order the temporary surrender of firearms before a hearing and without prior notice. The court may do so only if convinced that "irreparable injury" could result before the scheduled hearing. This option is available to the court only for protection orders addressing sexual assault, stalking, harassment, domestic violence, dissolution of marriage, parental rights, and child support.

There are other situations where a court may order a person to surrender firearms, dangerous weapons, and a concealed pistol license. A court may order surrender if it finds that the person used, displayed, or threatened to use them in a felony. The court also may order surrender if the person committed fourth degree assault, coercion, stalking, reckless endangerment, or first degree criminal trespass against a family or household member. If the evidence is clear and convincing, the court must order the surrender.

A person who has been involuntarily committed for mental health treatment is barred from possessing a firearm. After treatment, that person's right to possess a firearm may be restored by court order. But the law does not authorize a court to restrict access to firearms by a person experiencing a mental health crisis or exhibiting threatening behavior unless that person is subject to one of the civil protection orders summarized above.

The Effect of the Proposed Measure if Approved

The measure would allow courts to issue "extreme risk protection orders." These orders would prevent a person who poses a significant danger to himself/herself or others from possessing or accessing firearms. The measure refers to such a person as the "respondent."

The measure would create two kinds of court orders. The first type of order is called an "extreme risk protection order." A member of the respondent's family or household or a person in a dating relationship with the respondent could petition a superior court for an extreme risk protection order. The measure defines who is a family or household member and it lists specific information that must be contained in the petition. The petition must be accompanied by a statement made under oath. That statement must explain the specific facts that show a reasonable fear of future dangerous acts by the respondent. The petition would be served on the respondent by a law enforcement officer.

A law enforcement officer or agency also could file a petition, along with the required factual statement made under oath. The officer or agency must make a good faith attempt to notify a member of the respondent's family or household. They also must try to notify any other known person who may be at risk of violence by the respondent. Each notice must state that the officer or agency is petitioning for an extreme risk protection order. It also must include referrals to mental health, domestic violence, counseling, or similar resources.

The superior court must hold a hearing on the petition for the protection order. The court may issue the order only if it finds, based on the evidence, that the respondent "poses 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."

If the superior court issues an extreme risk protection order, the order is served on the respondent by a law enforcement officer. The order would require the respondent to immediately surrender all firearms and any concealed pistol license to the local law enforcement agency. The order would bar the respondent from obtaining or possessing firearms while an order is in effect. If the respondent does not comply, the court would be authorized to issue a warrant to compel the surrender of these items.

An extreme risk protection order would last for one year. The same persons who may seek an order in the first place may ask the court to renew the order for another year. The same procedures and requirements apply to a renewal request as to the original request, and the court applies the same standard.

The respondent could request a hearing to demonstrate that the order should be terminated. The respondent could file one termination request during each 12-month period the order is in effect. The respondent then must demonstrate at the hearing that he or she does not pose a significant danger of causing personal injury to the respondent or others by having a firearm. The person who petitioned for the order must be notified of the request and hearing.

The second type of order, called an "ex parte extreme risk protection order," would be more immediate. "Ex parte" is a legal term that refers to a hearing held without notice to the other side. This type of order would be available where there is a showing of a significant risk of personal injury in the near future. A petition for this order could be filed in municipal court, district court, or superior court. The court must hold a hearing on the day the petition is filed or on the court's next business day. If the court issues the ex parte order, it would last only until there is a hearing in superior court on whether a one-year "extreme risk protection order" should be issued. That hearing must be held within 14 days. All the requirements for issuing a one-year "extreme risk protection order" explained above would apply at that hearing.

The measure would impose the same notice and surrender requirements for an ex parte extreme risk protection order as for the one-year order. The measure imposes the same consequences for failure to comply. Like the one-year order, the ex parte order also would be served on the respondent by a law enforcement officer.

The measure makes it a crime to file a false or intentionally harassing petition. It also makes it a crime to violate either type of extreme risk protection order.

If an extreme risk protection order expires or is terminated, the surrendered firearms must be returned to the respondent, but only if the law enforcement agency holding the firearms confirms that the respondent is currently eligible to possess firearms under federal and state law.

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