American Civil Liberties Union Washington – Position on Initiative 1491
“The ACLU of Washington has not taken a position on Initiative 1491. We do not support the initiative because of the due process and other concerns outlined below. While keeping guns out of the hands of people who pose serious risks to safety is a reasonable public safety measure, the ACLU’s role is to evaluate such measures by their impact on civil liberties, and we have concerns that the initiative has inadequate due process procedures. Further, these deficient due process procedures could set a bad precedent for other criminal justice processes.
- The initiative allows a broad and vaguely defined group of people (family, household member, police) to seek the protection order. A protection order can be issued based on vague criteria (“significant danger”) that a person is an “extreme risk.” The protection order can be obtained from a judge ex parte – without notice to the person being accused. This severely limits the ability of a person to challenge an order once it is entered.
- The initiative puts the burden of proof on the accused to show, after 12 months, that the order should be lifted. It is unclear how persons would prove their lack of danger. The concerns are compounded because of problems we’ve seen with other kinds of protection orders in WA: Although they are initially temporary, after a period of time, there are efforts to expand the scope of the orders to make them permanent, or to further abridge the due process provisions.
- The initiative requires recording the order in court databases, which are open to the public. A record showing that a person had gun rights taken away based on being an “extreme risk” may well haunt an individual for the rest of their life – regardless of rehabilitation – erecting barriers for them when they undergo a background check for employment, housing, etc.”
Source: Email from ACLU WA to David Combs, dated June 28, 2016.
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