Washington State 2016 Initiative 1491, “Extreme Risk Protection Orders,” in plain English

I’ve translated the proposed law into plain English, omitting some details. Where gender is present, I’ve used the male gender to keep the text simple.  Please see the original text of the initiative for the authoritative version. Briefly, the proposed law enables the courts to temporarily take guns away from somebody who is at risk of injuring himself or somebody else.  Disclosure; I am not a lawyer, just an interested voter.


This bill is about extreme risk protection orders (ERPOs).

Section 1: Intent. This act temporarily keeps people who are at high risk of harming themselves or others from getting guns. It lets family, household members and police get a court order if there’s evidence that the person is dangerous, including mental health and violent acts.

(The section lists the reasons for this law.)

Section 2: Short title. “The Extreme Risk Protection Order Act.”

Section 3: Definitions. Please see the original text for definitions of:

  • Extreme Risk Protection Order
  • Family or household member
  • Petitioner
  • Respondent

(A latin legal term is used in the initiative but not defined; ex parte.  I found a definition here.  In context it seems to mean a temporary, emergency ERPO that a court issues for the petitioner without notice to the respondent.)

Section 4: Petition for an Extreme Risk Protection Order (ERPO). A family or household member or the police may file a petition. The petition:

  • Must be filed in the county that the petitioner or respondent lives in.
  • Must allege that if the respondent had a gun there’s a danger that he would injure himself or others.
  • Must include an affidavit made under oath explaining why there’s a fear that the respondent will act dangerously.
  • Must say what kinds of guns the petitioner thinks the respondent has and where they are.
  • Must say whether there is an existing protection order against the respondent.
  • Must say whether there is pending legal action between the parties.

If the petitioner is the police, the petition must say that they’ve notified the people at risk of violence and given referrals for mental health, domestic violence and counseling.

The Court Administrator checks the terms of any existing order governing the parties. Even if there is pending legal action between the parties, or there’s a problem checking the terms of an existing order, the court can’t delay granting the petition. The court can grant the petition whether or not there is a pending action.

If the petitioner is the police, they try to notify the people who might be in danger. They say that they’ve already petitioned, or will petition, the court for an ERPO. They give referrals for mental health, domestic violence and counseling. The police include their address of record in the petition.

If the petition says that disclosing the petitioner’s address would risk harm to the petitioner, his family or household, all documents filed with the court can omit the address. In this case, the petitioner gives an alternative address at which the respondent may serve notice of any motions.

Within 90 days of getting the master copy from the Court Administrator, all Court Clerks provide the forms and information required by Section 16. In doing so, the clerks aren’t practicing law, and they’re not responsible for any incorrect information in a petition.

A court or public agency won’t charge petitioners fees. They’ll give petitioners certified copies, forms and information for free.  Nobody has to post a bond.

Washington State superior courts have jurisdiction over ERPO proceedings. Also, district and municipal courts can issue and enforce ex parte ERPOs. In this instance, the district or municipal court sets the full hearing in superior court and transfers the case to the superior court. If the notice and order aren’t served on the respondent in time for the full hearing, the issuing court and superior court can extend the ex parte ERPO.

Section 5: ERPO hearings and issuance. When the court receives the petition, it orders a hearing to be held within 14 days, and notifies the respondent. The hearing can be via telephone to accommodate a disability or to protect a petitioner from potential harm. In this case, the petitioner must first identify himself to the court.

The Court Clerk gives the notice of hearing and petition to the police within 1 court day to serve on the respondent. The police must serve them on the respondent at least 5 court days before the hearing. If the police need to serve other non-emergency documents on the respondent, this service has priority over them.

If the police can’t serve these documents in time, the court sets a new hearing date and requires that the police try again; or service may be by publication or mail. The court won’t require more than two attempts at personal service unless the petitioner requests more time to attempt personal service.

If personal service fails, service by publication or mail is allowed. In this case, the court schedules the hearing to happen within 24 days.

The court may issue an ex parte ERPO pending the hearing. In this case, the ERPO must be served at the same time as the notice of hearing and petition.

At the hearing, if the court finds that the respondent poses a danger of injuring himself or others if he has a gun, the court issues an ERPO that’s effective for 1 year. The court can consider any relevant evidence, including:

  • Violation of a protection order or no-contact order
  • A previous or existing ERPO
  • Violation of a previous or existing ERPO
  • Conviction for a domestic-violence crime
  • Whether the respondent has a gun
  • Whether the respondent has used or shown a gun unlawfully or recklessly
  • The respondent’s history of use of physical force against people, or stalking people
  • Prior arrests for a felony or violent crime
  • Whether the respondent abuses drugs or alcohol
  • Whether the respondent has obtained guns

The court may examine under oath the petitioner, respondent and any witnesses, or consider their sworn affidavits. The court may make sure the respondent’s criminal history has been checked. The same rules of evidence apply as in a domestic violence protection order. The court may order a mental health or chemical dependency evaluation.

An ERPO must include:

  • The reason for the order
  • Date and time of issue
  • Expiration date and time
  • Whether a mental health evaluation is required
  • Whether a chemical dependency evaluation is required
  • The court’s address for filing a responsive pleading
  • Explain that the respondent must give up his guns

The court must tell the respondent that he can ask that the ERPO be terminated, and provide a form to request a termination hearing.

If the court declines to issue an ERPO, it must say why.

Section 6: ERPOs. A petitioner may ask that an ex parte ERPO be issued before a hearing for an ERPO without notifying the respondent, by alleging that there’s danger that if the respondent has a gun he will soon injure himself or others. If the court agrees, it issues an ex parte ERPO. The court holds an ex parte ERPO hearing in person or by telephone within a day from when the petition was filed.

The court schedules a hearing within 14 days of an ex parte ERPO issuance to determine whether an ERPO should be issued. An ex parte ERPO must include:

  • The reason for the order
  • The date and time of the order
  • The date and time the order expires
  • The court’s address for filing a responsive pleading
  • The date and time of the hearing
  • Requirements for the respondent to give up his guns

After the hearing, the ex parte ERPO expires.

The police serve the ex parte ERPO just as they would the notice of hearing and petition, and at the same time.

If the court declines to issue an ex parte ERPO, it must say why.

Section 7; service of ERPOs. The police must serve an ERPO personally on the respondent (other than the exceptions in this law). The law enforcement agency that has jurisdiction over the respondent serves it, unless the petitioner has a private party serve it. If the police will serve the ERPO, the Court Clerk gives the ERPO to the police within a judicial day. If the police can’t serve the ERPO within 10 days, they notify the petitioner. If the respondent appeared in court, it’s not necessary to further serve the ERPO.

The court can allow service of the ERPO by publication or mail.

Section 8; Service by publication or mail. (This section prescribes the wording of the service.)  If the service is for an ERPO hearing, the court also reissues the ex parte ERPO, to expire after the haering.

If the respondent doesn’t come to the hearing, the court can still issue an ERPO.

Section 9; Termination and renewal of orders. The respondent may submit 1 request for a termination hearing every year that the ERPO is in effect. When the court receives a request, it schedules a hearing and serves notice of the request on the petitioner. The hearing occurs between 14 and 30 days from the date the petitioner gets the notice. The respondent must prove that by having a gun he doesn’t pose a danger of injury to himself or others.  If the court agrees, it terminates the ERPO. It notifies the petitioner 105 days before the expiration of the ERPO.

Until the ERPO expires, a family or household member or the police may ask the court to renew it. In this case, the court orders a hearing within 14 days. The respondent must be served notice of the hearing. The hearing may be by telephone. If the court finds that the order is still necessary, it renews it. If the respondent doesn’t contest the order and petitioner doesn’t want to change it, the court can renew it based on the petitioner’s information. The ERPO is renewed for a year, subject to termination or further renewal.

Section 10; Surrender of guns. When the court issues an ERPO or ex parte ERPO, it orders the respondent to give his guns to the police, including licensed concealed pistols. When the police serve an ERPO or ex parte ERPO they ask the respondent to give them the guns; and they can search for them in accordance with the law. The police take the guns the respondent gives up, that are in plain sight, and that they found by lawful search.

If the police can’t personally serve the ERPO or ex parte ERPO, or service isn’t required because the respondent came to the hearing, the respondent gives the guns to the police within 48 hours of the hearing.

The police give the respondent a receipt for the guns. Within 72 hours of service of the ERPO or ex parte ERPO, the police file the receipt with the court and keep a copy of it.

If the petitioner or police swear that the respondent didn’t give up his guns, and the court agrees, the court issues a search warrant for the guns.

If somebody other than the respondent owns the surrendered guns, they are returned to him, provided that:

  • The respondent can’t get at the guns
  • The owner doesn’t possess the guns unlawfully

When the court issues a one-year ERPO, it orders the respondent to appear in court within 3 days. The court requires the respondent to prove that he gave up his guns.

By June 1, 2017, all law enforcement agencies must get ready to accept, store and return surrendered guns.

Section 11; Return and disposal of guns. If an ERPO is terminated or expires, the respondent can ask for his guns to be returned. The police confirm that the ERPO was expired or terminated, and return the guns thru a background-check process. The petitioner, family or household members can ask the police to notify them before returning guns to the respondent. The police can dispose of unclaimed guns.

Section 12; Reporting of orders. The Court Clerk enters ERPOs and ex parte ERPOs in a statewide judicial information system on the day they are issued. The Court Clerk gives the police a copy of the order on the day it’s issued. The police enter it into the national instant criminal background check system, and any other federal or state systems used to identify people who mustn’t buy guns, and systems used to list outstanding warrants. The systems must retain the entries while the order is in effect; only entries of expired and terminated orders can be erased. Any county in the state can enforce the order.

Within 3 judicial days of issuing an ERPO or ex parte ERPO, the court gives a copy of the respondent’s ID to the Department of Licensing (DOL). If the respondent has a concealed pistol license, the DOL notifies the license issuer to revoke the license.

If the court terminates an ERPO before its expiration date, on the same day the Court Clerk gives a copy of the termination order to the DOL and the police. They remove the order from computer systems.

Section 13; Penalties. Anyone who files a false petition, or who files a petition just to harass the respondent, is guilty of a gross misdemeanor. Anyone who has a gun in violation of an order is guilty of a gross misdemeanor, and is prohibited from obtaining a gun for 5 years after the order expires. If they’v already been caught having a gun two or more times, they’re guilty of class C felony.

Section 14; Law enforcement retains other authority. This law doesn’t change the police’s existing ability to take a gun or a concealed pistol license from anybody, or to search for and take guns for other lawful reasons.

Section 15; Liability. Except for Section 13, this law doesn’t impose criminal or civil liability on anybody for acts or omissions related to getting an ERPO or ex parte ERPO. This includes reporting, not reporting, investigating, not investigating, and filing and not filing a petition.

Section 16; Instructional and informational material. Court administrators will create instructions, information and forms on the ERPO process. The standard forms must be used after June 1, 2017. (This section details the instruction and form requirements.) By December 1, 2017, this material must be available in the languages spoken by significant non-English speaking populations.

Section 17; Severability. If any part of this law is held invalid, the rest of the law is not affected.

Section 18. Sections 1 through 16 of this act make up a new chapter in Title 7 RCW.

 

 

 

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s