There have been many attempts at restricting gun ownership by people who would use them to take their own lives or commit acts of violence. President Trump himself said that police should immediately take away guns from those who pose risks and then go through due process to restore their right to bear them.
While no such polices have been enacted at the Federal level, several States have adopted policies which allow law enforcement to immediately seize a person’s firearms if someone close to them files a petition with a court which claims they pose a danger.
A number of blue states passed laws this year to that effect, those they had substantial variation. In some cases, only law enforcement can file petitions for court orders to seize a person’s guns. In others, anyone a person has ever dated can make the request. Standards for justification range from probable cause, the common standard in the criminal justice system, down to preponderance of evidence, the standard colleges use to determine guilt in Title IX proceedings.
Justifications are generally threats or acts of violence, but can sometimes include posts on social media, mental health history, drinking habits, or leaving a gun out of what that State considers proper storage.
The lengths of the orders vary too, with 6 months being common but sometimes lasting up to 1.5 years with indefinite renewal options. Penalties for violating the orders vary extremely as well, ranging from 3 months in jail to 10 years and fines from under $1,000 to $10,000.
Here’s a more detailed look at what some of these States are doing:
In Maryland, House Bill 1302 was approved April 24th and becomes effective October 1st. It creates ‘extreme risk protective orders’ which bar anyone from owning, possessing, or buying firearms and ammunition, penalized by a $1,000 fine and/or 90 days in jail ($2,500/1 year for subsequent offenses). Initial temporary court orders will be served immediately and can last up to 6 months but should only last 7 days, with final orders lasting a year with a possible 6-month extension.
They can be filed by social workers, psychologists, therapists, law enforcement, spouses, cohabitants, blood/marriage relatives, and current (but not former) dating or intimate partners. Unlawful, reckless, or negligent use, storage, display or possession qualify in addition to any making of threats of violence regardless of whether a firearm is involved. The evidentiary standard for issuing one was the existence of reasonable groups by a district court commissioner to believe that by possessing a firearm a person poses an immediate and present danger of causing injury.
Rhode Island passed two identical bills which create ‘extreme risk protection orders’ that can only be filed by a law enforcement agency. Upon a court finding probable cause that the subject of the order poses a significant danger of causing imminent personal injury to self or others by having or obtaining a firearm, law enforcement shall be issued a warrant to search for and seize any firearms from the subject of the order.
Within 14 days, a court shall determine if a 1-year order is appropriate. A person’s mental health history, acts or threats of violence including those made on social media, any history of alcohol or drug use, and access to firearms shall all be considered during the proceedings. Law enforcement may petition to renew the order upon demonstrating clear and convincing evidence that it should be continued. Violating the order is a felony offense with a jail term of up to 10 years and/or a $10,000 fine. The law took effect immediately upon passage on June 1st.
Massachusetts and New Jersey both passed similar bills which create extreme risk protection orders. In these cases, licensing authorities, law enforcement, family and household members, as well as current or former dating partners can file for them. In both cases, the orders shall be issued upon demonstrating a preponderance of evidence the subject may pose a risk of causing bodily injury to self or others. These laws go into effect on August 17th in Massachusetts, where violating the order can result in a $5,000 fine and/or up to 30 months in prison. In New Jersey, the law doesn’t become effective until October 1st, 2019 while a violation can mean a $15,000 fine and/or a jail term of between 3 and 5 years.
Illinois passed a bill to create ‘firearms restraining orders’. Family members, cohabitants, and law enforcement officers can file for them against anyone who poses a danger of injury to anyone by possessing a firearm. The orders last for six months and are granted upon establishment of probable cause that the subject poses such a danger.
Orders can be renewed for an additional six months upon the court finding clear and convincing evidence that the subject continues to be a threat. Violating the order can result in a prison sentence of up to one year and a fine not to exceed $2,500.
Not all bills made it. The Senate in Colorado killed a bill the House passed which would have created ‘extreme risk protection orders’ which could be filed by law enforcement officers or family/household members, defined as blood/marriage relatives, domestic partners, any cohabitants of the last 6 months, blood or legal relatives, and dating partners. The bill did not specify whether these were current or former partners.
If a court found a preponderance of evidence that the subject of the order posed a significant risk of causing personal injury to self or others by having firearms, the court was required to issue the order with a hearing held the same day the petition for the order was filed. Within 7 days, a hearing for a 182-day order would have been held. If granted, they would have been extendable upon presentation of clear and convincing evidence the subject of the order was still a threat. Violating the order would have resulted in up to a year in prison and/or a $1,000 fine.
New York had multiple similar bills which died in various Senate committees after being passed by the Assembly. Kansas, Maine, Tennessee, and several other states also had bills creating court orders like this that either never got off the ground of were killed. Other states, including California and Michigan, are still considering adopting these policies.
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