Proposed legislation would limit confiscation of guns under extreme risk protection orders

A bill pre-filed for the upcoming session of the Washington legislature would limit the use of extreme risk protection orders to confiscate guns in the state.

A law passed by voters and enacted in 2017 allows law enforcement agencies to temporarily reduce someone’s access to guns if they’re found to “pose a significant danger of harming themselves or others by possessing a firearm,” according to RCW 7.95.010.

A bill proposed by Rep. Jim Walsh (R) from the 19th district in southwestern Washington and Rep. Jesse Young (R) from the 26th district which includes Port Orchard and Gig Harbor could limit some of the access law enforcement agencies have under that law.

According to House Bill 2196, “it is the intent of the legislature to resist federal intervention in firearm regulation by prohibiting state and local agencies from assisting in the enforcement of any extreme risk protection order issued under federal law.”

The bill also says that “current legal standards for issuance of extreme risk protection orders under state law violate a person’s second amendment rights. Therefore, the legislature intends to heighten the legal standards for extreme risk protection orders to better balance the fundamental rights of the individual with the state’s interest in protecting the public from harm.”

Under the proposal, many provisions of the law stay the same. The person has a right to a hearing within 14 days, for example. But the proposal amends some of the other provisions. Under the current law, the court must find that the person poses “a significant danger of causing personal injury to self or others in the near future.” Under this bill, that phrase is amended to the person needing to pose an “imminent, particularized, and substantial risk of causing death or serious physical injury to self or others.”

It also changes the language of the type of evidence needed to issue such an order. The current law says “a preponderance” of the evidence, which means it’s more likely than not to be true. The proposed bill changes that to “clear and convincing evidence” which, in legal terms, is more strict.

The proposed legislation also adds an entirely new section, which says no state or local law enforcement agency can use agency funds, facilities, property, equipment or personnel to assist in the investigation of an extreme risk protection order issued under federal law.

17 states and Washington, DC have passed these so-called “red flag laws” in place, with several others going into effect January 1, 2020.

Right now, there are no federal “red flag laws” in place, but a bipartisan bill has been proposed.

President Trump has supported the idea in the past.