From the October 2016 (vol. 25-No.10) WAC “Guns News”, , RE: I 1491. See also information on I 1491 at:
https://know1491.org/aclu-wa-position/“The ACLU of Washington has not taken a position on Initiative 1491. We do not support the initiative because of the due process and other concerns outlined below. While keeping guns out of the hands of people who pose serious risks to safety is a reasonable public safety measure, the ACLU’s role is to evaluate such measures by their impact on civil liberties, and we have concerns that the initiative has inadequate due process procedures. Further, these deficient due process procedures could set a bad precedent for other criminal justice processes.
1. The initiative allows a broad and vaguely defined group of people (family, household member, police) to seek the protection order. A protection order can be issued based on vague criteria (“significant danger”) that a person is an “extreme risk.” The protection order can be obtained from a judge ex parte – without notice to the person being accused. This severely limits the ability of a person to challenge an order once it is entered.
2. The initiative puts the burden of proof on the accused to show, after 12 months, that the order should be lifted. It is unclear how persons would prove their lack of danger. The concerns are compounded because of problems we’ve seen with other kinds of protection orders in WA: Although they are initially temporary, after a period of time, there are efforts to expand the scope of the orders to make them permanent, or to further abridge the due process provisions.
3. The initiative requires recording the order in court databases, which are open to the public. A record showing that a person had gun rights taken away based on being an “extreme risk” may well haunt an individual for the rest of their life – regardless of rehabilitation – erecting barriers for them when they undergo a background check for employment, housing, etc.”
Source: Email from ACLU WA to David Combs, dated June 28, 2016.
Also: from
https://know1491.org/Due process is undermined:
This initiative undermines due process by allowing for ex parte orders, which are expedited hearings and judgments without required notification of the accused to be present to defend themselves. These temporary orders can even be issued by lower courts, such as municipal courts, by judges with little or no experience in issuing this type of order. Petitions to the court can be submitted by a broad set of individuals, including household members, police, dating partners, and former roommates. Unsupported statements by a potentially hostile petitioner can be used as sole evidence in issuing the “Extreme risk protection order”. Additionally, no public defender is provided, so the accused must pay for their own defense in any subsequent hearings. In order to seek relief from an Extreme Risk Protection Order, the accused has the burden of proof to show by a preponderance of evidence that they are no longer a danger to themselves or others. The cost of hiring a lawyer and providing expert testimony and documentation places a financial burden that many respondents may not be able to afford.
National Alliance on Mental Illness (NAMI) Washington has concerns:
The National Alliance on Mental Illness (NAMI) Washington is neutral on I-1491. However, NAMI Washington has concerns that the specific identification of mental illness in the bill will pose a significant deterrent to care and have the effect of erecting more barriers to treatment by raising fears that seeking help will result in loss of gun ownership rights. This law would also reinforce false public perceptions about the relationship between mental illness and gun violence.
Once law enforcement is given an order to remove firearms from someone that has been determined to be at “Extreme Risk” of harm to themselves or others, police are not likely to politely knock on the door and ask the individual to surrender their firearms. Police are going to treat the individual as armed and dangerous and follow protocols that will most likely use tactical units and force to subdue the individual. Such an approach would create “Extreme Risk” to the individual, the officers, and bystanders. Faced with this type of invasion, an individual may attempt to defend themselves with firearms or even commit suicide in desperation. At best, the individual, who may have not even been notified of a hearing, will be subjected to fear and humiliation and an extensive search of their property.
No judicial training for cases involving mental illness claims:
I-1491 calls for the use of superior court judges to hear protection order petitions even when the evidence is based on a claim of mental illness. There is no provision to move these cases to mental health courts or for training superior court judges on mental health law and diagnosis. There is also no provision to have a trained mental health professional be present to advise an untrained judge in such matters.
