Serious Due Process Questions Raised about Gun Control Measure

The Washington State chapters of the American Civil Liberties Union and the National Alliance on Mental Illness/Washington (NAMI), while remaining neutral on a new gun control initiative on the Nov. 8 ballot, have raised serious questions about the measure in e-mail statements obtained by Liberty Park Press.

Additionally, Evergreen State Democrats earlier this year put forth a resolution that, while supporting the signature gathering effort for Initiative 1491 – the so-called “extreme risk protection order” measure – recognized the initiative has problems. The resolution urged “the State Legislature to amend the initiative after passage to clarify that mental illness is not the primary cause of mass shootings and to add due process for the mentally ill.”

Opponents of I-1491 earlier this year heard from the ACLU of Washington via e-mail, which noted:

“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.”

The ACLU message, sent over the name of Legislative Director Shankar Narayan, then detailed its concerns:

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.

Full article: Serious Due Process Questions Raised about Gun Control Measure



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