State considers expanding Red Flag laws that temporarily take gun rights
Prosecutors in Washington are looking to expand the state’s Red Flag laws to include minors.
Red Flag laws – or Extreme Risk Protection Orders (ERPOS) – are civil orders that allow judges to temporarily suspend a person’s gun rights, even if they haven’t committed a crime, when they exhibit violent behavior that suggests they pose a risk to themselves or others.
Washington was among the first of five states to pass a Red Flag law when voters overwhelmingly approved I-1491 in 2016.
Another eight states passed similar laws this year after the Parkland shooting, and four more states are considering them now.
The laws vary by state as far as who can petition the court for the civil orders, with some only allowing law enforcement to file for them, while others allow family members, roommates, people who share children, and some medical professionals to petition the courts.
In Washington, police and family members can petition the courts for an emergency 14-day order to take away a person’s guns. That can be followed with a one-year ban if the court is convinced the pattern of behavior shows the person is a risk to themselves or others.
State law is silent on whether minors can be the subject of an ERPO, but there is an effort to change that.
For the past several months, a legislative task force made up of police, mental health experts, school shooting survivors, the ACLU, and others has been meeting to develop strategies to prevent mass shootings, and it recently released a list of 25 recommendations.
Among the recommendations, clarifying state law to make clear ERPOs can apply to minors.
Prosecutor Kimberly Wyatt with King County’s Regional Domestic Violence Firearms Unit – the only specialized unit in the state that helps other police agencies statewide and family members with ERPOs – believes the orders should apply to juveniles.
“We’ve had that issue come up multiple times, and we’ve been asked around the state by other law enforcement agencies that are struggling with the same issue. To date, I don’t know of any that have been filed yet against juveniles, but we have one particular case where we are making that recommendation to law enforcement right now,” Wyatt said.
In this case, they are working with a school resource officer at a school where a student under 18 is facing charges for a crime, requiring he not have access to weapons to determine if they need an Extreme Risk Protection Order.
“We would file the ERPO against the juvenile because the father has access to firearms in the home, and the father is not being cooperative with law enforcement to confirm that the firearms are out of the home,” Wyatt said.
She said police had tried several times to confirm with the father where the guns are located, but he refuses to comply.
Wyatt said using the ERPO would not be about taking away the father’s firearms rights.
“We’re trying to say, ‘Dad lawfully can possess those guns,’ and we would hope that most parents have given law enforcement reassurances where the firearms are. But in this particular case, the father has declined to give any of those reassurances. So we would say that the juvenile could not be in that home with access to firearms. If dad wants to keep the firearms in the home and not share the information, you know that puts him in a difficult position,” Wyatt said.
If the ERPO was served on the child in this case, the dad would then have to choose between proving to law enforcement where the guns are so they know they’re not in the house, or having the child live elsewhere.
Wyatt says overall, they are seeing a lot of success with ERPOs, including another case where they served one to an 18-year-old student in Seattle, who police came to talk to regarding a drug issue and were allowed to search his bag. When school officials and law enforcement searched the student’s bag, they found a loaded gun with the safety off in the backpack.
Wyatt said that on top of the criminal issues there, that the 18-year-old showed extremely negligent behavior with a firearm. That ultimately was why they filed an ERPO against the student, to ensure he could no longer legally buy guns currently legally available.
Those are just some of the examples Wyatt gave lawmakers earlier this month to highlight the importance of ERPOs, and the urgent need to clarify the state law on their use in juvenile cases, as the work group recommended.
The work group also recommended more promotion of the existence of ERPOs and their uses to both law enforcement and the public, and that a second violation of an Extreme Risk Protection Order leads to the permanent loss of a person’s firearms rights.