SB 868 Extreme Risk Protection Order

SB 868, an ERPO bill, has been introduced in the Oregon legislature. Please call your legislators now and tell them you support SB 868.

In the aftermath of the horrifying mass shooting in Fort Lauderdale, Florida, on January 6, 2017, retired ATF Special Agent in Charge Jim Cavanaugh said that a Gun Violence Restraining Order (also called an Extreme Risk Protection Order) might have prevented the shooting. Agent Cavanaugh stated that the shooter exhibited warning signs to the FBI but they were not able to intervene. A GVRO/ERPO could have provided law enforcement with the necessary tools to disarm the shooter and prevent the murders.

What is an ERPO? Extreme Risk Protection Orders allow families and law enforcement to prevent tragedy by petitioning a court to temporarily suspend a person’s access to firearms if there is documented evidence that an individual is threatening harm to self or others. The person subject to that order must temporarily surrender any guns to the police and will not be able to buy, sell, or possess other firearms temporarily.

Does Oregon have an ERPO? No. Ceasefire Oregon and other GVP groups are encouraging law makers to pass an ERPO in 2017. Please call your state legislators and Senate President Courtney now. Tell them you support Extreme Risk Protection Orders. Senate President Courtney’s number is 503-986-1600.

Was 2016’s SB 1551 an ERPO? It was a limited version of an ERPO. In the 2016 legislative session, SB 1551, an ERPO bill, was introduced in the Senate Judiciary Committee but was never allowed to be brought to the floor for a vote. The bill would have allowed family members to ask the State Police Firearms Unit to place a temporary hold on a family member’s gun purchases if that person was experiencing a mental health emergency and was a danger to self or others. (False reports would have been a criminal offense.) Tragically, this bill might have prevented the Christmas Day shooting that killed Katelynn Armand and severely injured Oregon State Trooper Nic Cederberg. Senator Kim Thatcher is on record as opposing SB 1551 (2016).

What other states have ERPO?  Washington state just passed Initiative 1491 in November by a 40 point margin (70% to 30%). Indiana and Connecticut also have versions of ERPO.

California passed AB 1014, called a Gun Violence Restraining Order, in 2014 in response to a killing rampage earlier that year in Isla Vista. On May 23, 2014, Elliot Rodger killed six people and injured fourteen others before killing himself. Just one month before the rampage, Rodger’s parents were disturbed by videos their son had posted online and sought police help. Elliot’s parents were afraid their son would be a danger to himself or others. Although police spoke with Elliot, they said he did not meet the criteria for intervention.

Why are ERPOs needed? Often people who are thinking of killing themselves or harming others show warning signs before they act. An ERPO allows families to take steps to protect their loved ones and themselves. In Oregon, where suicide is 85% of all gunshot deaths, temporarily removing access to guns is especially important to prevent suicide. Depression is treatable and suicide can often be prevented. ERPOs give families a chance to intervene to save their loved ones.

Some mass shooters show warning signs of their intentions as do some domestic violence shooters. Often the first people to see those signs are family members. The family members of the perpetrators of the Café Racer and Jewish Federation shootings have expressed anguish for the lack of tools for family members who see signs that their loved ones may do terrible harm.

Lack of ERPO has hurt Oregonians for decades. In 1995, in Scotts Mills, Oregon, Laura Whitson and her three children, Sarah, 6; Rachael, 3; and April, 6 months, were shot to death by David Whitson, Laura’s husband and the father of the three children. David Whitson also injured Laura’s mother, Margaret Magee, who was holding April when the baby was shot to death. A Seattle lawyer who represented Mr. Whitson in divorce proceedings a year before the murders said, “I just was not shocked that the call came about him at all,” adding, “There was a potential for danger – for explosion.” An ERPO might have saved the lives of Laura Whitson and her three beautiful girls.

Do these bills violate the Second Amendment? No. The Law Center to Prevent Gun Violence precisely explains:

• Second Amendment: The GVRO (EPRO) process does not violate the Second Amendment. In the landmark case District of Columbia v. Heller, the Supreme Court determined that the Second Amendment guarantees the right of law-abiding, responsible citizens to keep a firearm in the home for self-defense. 554 U.S. 570, 679 (2008). However, the Supreme Court stated that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and  made clear that a variety of laws are permissible under the Second Amendment, including those prohibiting firearm possession by felons and the mentally ill. Id. at 626.

In California, the courts have specifically held that “the state may ensure that firearms are not in the hands of someone who may use them dangerously” and dangerous people may be prohibited from possessing firearms consistent with their Second Amendment rights, as long as they are afforded adequate due process.

See City of San Diego v. Boggess

, 216 Cal. App. 4th 1494 (2013);

People v. Jason K.

, 188 Cal. App. 4th 1545 (2010). In 2013, an Indiana Court of Appeals upheld a similar gun violence restraining order law against a Second Amendment challenge and ruled that the state may restrict access to firearms by dangerous persons in the interest of public safety and welfare.

Redington v. Indiana,

,  992 N.E.2d 823 (Ind. Ct. App. 2013). AB 1014 provides a mechanism to do exactly that: keep deadly firearms out of the hands of dangerous persons in the interest of public safety and welfare.

• Due Process: The procedures for obtaining temporary emergency and ex parte GVROs provide sufficient due process to protect Californians’ important constitutional rights. The law provides for a temporary (21 day) or a more permanent GVRO, which is effective for one year. However, the more permanent (one year) GVRO will only be issued after a full hearing before a judge. At this hearing, the burden is on the person bringing the petition for the order to prove by clear and convincing evidence that the named person poses a substantial likelihood of causing harm to self or others by possessing firearms or ammunition. If this burden is not met, the person may then regain the right to possess firearms or ammunition. In addition, the named individual may seek another hearing to terminate the order during the one-year period of its duration. Similar procedures are in place in the domestic violence restraining order context and courts across the nation have uniformly upheld these procedures. See, e.g., Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D.C. Mass. 2000); Blazel v. Bradley, 698 F. Supp. 756 (W.D. Wis. 1988); Baker v. Baker, 494 N.W.2d 282 (Minn. 1992).