Tag Archives: extreme risk protective order

We don’ need no steenkin’ due process

“Extreme risk protective orders” (ERPO) are the latest fad of the victim disarmers who snidely assure that one more law will save us from “gun violence.”

They don’t care about violence inflicted by any other means.

The TL;DR if you didn’t follow those links is that ERPOs allow — variously in assorted state implementations; typically family, friends, co-workers, cops — people to petition the courts to have someone’s firearms taken away because they fear that person is at risk of harming herself or others. And who could possibly be in favor of hurting people?

What they don’t tell you is that protective orders are already available. The tricky part is “due process.” Now, a judge can issue an order for a potentially violent person to stay away from the allegedly threatened person. A judge can call the potentially violent person in to see if, just maybe, he should be sent in for a mental health evaluation. The first isn’t too big a deal, and the second incorporates constitutional due process because the one who may be confined is in court to have his say.

As I said, ERPOs lack that due process, by deliberate intent. The accused isn’t told about the hearing until afterwards, when the cops show up to confiscate firearms. Conventional initial protective order hearings may or may not include the accused; ERPOs codify that lack in law.

Ex parte is a legal fiction that claims that, in certain emergency situations, there’s no time for due process, or that tipping off the accused could allow her to do something bad before she’s served with the order. That’s a good thing, right?

No. A conventional protective order amounts to a preliminary emergency injunction, and the accused will get a hearing. ERPOs make no allowance for hearings until after property is taken, and then the burden is on the accused to prove his innocence. No due process; problem.

But it’s a terrible emergency. The guy is dangerous. Really, really so dangerous we don’t have time for due process, or to worry about prior restraint.

But apparently not so dangerous as to justify taking him into custody. A judge could require that in his order. Or not.

And there’s my problem: if the accused is so dangerous that he must be preemptively disarmed of firearms without notice, then he shouldn’t left free to walk the streets…

…say, with a crowbar, to the home of his accuser, who is now relying on a shield of paper. But who cares about crowbar — or knife — violence? After all, it’s a lot tougher to take out an oath-breaking, bodyguarded politician with a crowbar — or knife — than with a rifle at a distance.

Or maybe the — improperly? — accused is left on the street weaponless to defend himself against a — baseless? — accuser with a grudge, who manipulated the system into rendering his victim harmless. Maybe ERPOs should disarm both parties until it’s sorted out.

Rights and property should never be taken without real due process.

Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar.