Shawn Vestal: New red-flag gun laws are being used to prevent violence

The family of the 47-year-old man was very worried.

In the past year, they reported in February, he had struck his wife, stalked young girls, followed his sister’s boyfriend, threatened his brother and expressed sexual desires toward a sister. His brother told the Spokane County Sheriff’s Office that the man had a history of killing animals such as dogs, had attacked their father and had compiled a kill list of family members he wanted to see dead.

The man owned four handguns, including one “always on his person,” as well as three long guns, according to court records filed by a sheriff’s deputy.

Red flags, it seems, were everywhere.

But the man could not be charged with a specific crime. So the sheriff’s office asked a court to do something that until recently would have been impossible: take away the man’s firearms temporarily to prevent a potential tragedy.

In a written statement to the court, the man denied all of the claims of his family members, but a court commissioner was not persuaded. A one-year “extreme risk protection order” was granted in March, and the man was ordered to surrender his firearms.

That was one of 12 ERPOs that have been issued by Spokane courts since a new law took effect that allows family members, friends and law enforcement officials to petition a court to temporarily remove guns from people who are threatening themselves or others.

Several of the cases involved people clearly expressing suicidal thoughts. A few involved criminal suspects that police believed were showing signs of acting out violently toward others. In one case, a suicidal man asked police to take his guns.

Washington voters approved the use of the orders by initiative in 2016, and we’re one of five states that has adopted such red-flag laws. They’re popular in polling on gun safety measures, and have been considered on the federal level even by some Second Amendment stalwarts, though they remain controversial among the most zealous defenders of gun rights. Some grandstanding county sheriffs, in Washington and other states, have made a show of refusing to enforce the laws.

So far, the ERPOs have been used sparingly in most counties in the state, but King County authorities have formed a team focused specifically on using the laws to prevent suicide and gun violence. Police and prosecutors take a regional approach, seeking cases in which such orders might be implemented and helping people file applications for the orders.

“This is one of those areas prosecutors actually love because we feel like we’re getting in front of problems, rather than being in a reactive mode,” Seattle City Attorney Pete Holmes said.

Unique approach

Among the chief concerns of critics are that the law tramples on the due-process rights of gun owners. Holmes and others argue that the process has a lot of due-process protections – hearings are held, defenses can be offered and judges make the final determination.

Guns are typically ordered removed temporarily at the start of an emergency application, with a full hearing that follows within two weeks. Defendants can challenge the orders and have counsel represent them. For supporters of the law, it’s crucial to note that guns are eventually returned, either after the order expires or if a judge rules that a defendant has successfully challenged them.

“It’s a civil process, judges are involved at every step, and in fact people get their guns back,” Holmes said.

Seventy-one ERPOs were issued in response to the King County Regional Domestic Firearms Unit’s efforts in 2018. Almost half were filed in cases of suicidal threats, and a third were tied to threats against others. The remainder included people threatening both themselves and others.

From Jan. 1, 2018, to the end of this September, more than 1,100 firearms were surrendered or recovered as part of the order.

In one high-profile case, Kaleb Cole, the alleged leader of the Atomwaffen Division in Washington state, was ordered to surrender a large stash of military-style weapons in October. The Atomwaffen Division is a neo-Nazi organization that hosts “hate camps” across the state to teach combat skills and sell a violent, racist vision, and authorities filed a detailed accounting of Cole’s threatening, violent actions and escalating rhetoric online.

He was, they argued, on the verge of acting on his racist, violent ideology.

Holmes has said he believes that seizure “prevented a massacre.” But in an example of the limits of the ERPO process, Cole and an associate were arrested less than a month later in Texas in a car with drugs, guns and thousands of rounds of ammunition.

Holmes is a proponent of the focused, collaborative approach that the King County team uses, and believes other counties should adopt it as well. A large number of the orders involves the potential of domestic violence, which is among the most common predictors of later violence.

It’s a way of changing the discussion of red flags to one of foresight, rather than hindsight.

“It works well,” Holmes said last week. “Hopefully, more jurisdictions like Spokane will start to emulate it.”

Spokane County Prosecutor Larry Haskell did not return messages seeking comment, but there has not been a unit focused specifically on applying the ERPOs here. One suspects that there are neither the resources nor the political will to create a specialized team here that would look to remove guns from people’s homes.

The dozen cases in Spokane were filed by city police, county deputies, family members and officers from the Cheney and Liberty Lake police departments. The case files suggest a process that is careful, methodical and fair – and they reflect situations where I suspect most people would agree that it was in everyone’s best interest to remove the guns.

An appeal, a reversal

About a week ago, a court commissioner approved a one-year ERPO against a man who a Spokane police officer said had a recent history of violent acts and threats that seemed to be escalating. The man had threatened someone who witnessed a graffiti tagging, had reportedly engaged in a gunfight with a known drug dealer, been involved in a “felonious hit and run” and brandished a gun while threatening another man who was out with his girlfriend and 2-year-old child.

In another case, an order was issued denying the right to buy a firearm to a man who was repeatedly calling hotlines and crisis lines issuing threats to “kill Republicans and Nazis any way he could,” threatening President Trump, and repeatedly claiming he planned to buy a gun and initiate “suicide by cop.”

One man was ordered to surrender five guns after threatening a civilian with a pistol and telling police that all felons, druggies and homeless people should be killed, along with posting disturbing things on Facebook. Another was ordered to surrender a pistol that his wife had reported he purchased with the intention of killing himself.

In almost every case, mental illness is a part of the mix. Addiction is often present as well. Most defendants did not mount much, if any, defense. One defendant challenged the order successfully – an 86-year-old man whose family was concerned he was suicidal – but after a cooling-off period of several months and the resumption of counseling, they argued the danger had passed.

The commissioner agreed, and returned the man’s guns.