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'Protection orders' get a closer look in fight against gun deaths

Five states, including Washington, have laws allowing the orders. Research indicates they can be effective at preventing deaths, and they pass the Second Amendment test. But jurisdictions say they need funding and personnel for the laws to work. 

Elaine Thompson/AP/File
Gun regulation activists in Olympia, Wash., stand with signs in the rotunda of the Legislative Building before Gov. Jay Inslee's annual state of the state address in January 2016. The citizen sponsor of Washington Initiative 1491 says her son and daughter would still be alive if 'extreme risk protection orders' had been legal in June of 2016. Such protection orders, modeled after domestic violence restraining orders, would require a court hearing and due process protections to remove guns from a person in crisis.

During the 2014 legislative session here in Washington State, a Senate committee killed a bill that would have temporarily confiscated firearms from any person deemed – by family members, friends, or law enforcement – to be violent or emotionally distraught and in need of a mental-health intervention. 

Fast-forward two years to June of 2016, when 22-year-old James Balcerak walked into the bedroom of his sleeping stepsister, 21-year-old Brianna, and pulled out a handgun. Mr. Balcerak was autistic, was occasionally violent, and would sometimes rage at his parents. Once, in 2015, they’d locked themselves in their bedroom while he pounded so hard on the door that he punched a hole through it. His mother, Marilyn Balcerak, remembers him screaming, “Can I commit suicide now? Yes or no?”

On that June night in 2016, south of Seattle in the City of Kent, young Balcerak pointed his handgun at Brianna and shot her to death. Thirty minutes later he turned the gun on himself.

“There was nothing I could do,” Ms. Blacerak says. “But if Initiative 1491 had passed two years earlier, when the legislature blocked the bill, James and Brianna would be alive today.”

Washington State voters passed Initiative 1491 in November 2016, winning 71 percent of the vote. The law does precisely what the legislature refused to do: allow parents like Blacerak to petition the courts for an ERPO – an extreme risk protection order – and take away firearms from a loved one they fear is a danger to themselves or to others.

Prosecutors, academics, law-enforcement officers, gun-control advocates, and public-health professionals who routinely confront gun violence and domestic abuse say extreme risk protection orders could become an important national tool for preventing not only suicides but also mass shootings like the Valentine’s Day killings of 17 students and staff at Marjory Stoneman Douglas High School in Parkland, Fla.

“I would say that ERPOs are an effective strategy in concert with other common-sense measures, like background checks combined with the reasonable oversight of the sale and the carrying of guns,” says Jonathan Metzl, director of the Center for Medicine, Health, and Society at Vanderbilt University in Nashville, Tenn.

“There’s no one thing that’s going to stop gun deaths,” adds Dr. Metzl, a psychiatrist. “But I think the more of these common-sense measures we have, the fewer gun deaths we’ll have.”

Second Amendment

Five states now have ERPO laws – sometimes called gun-violence restraining orders – generally modeled after legislation enacted by Connecticut in 1999. Such laws have not run afoul of the Second Amendment’s right to bear arms because the court-ordered confiscations are temporary, legal observers say, and because a petition can be filed to keep the weapons.  

Washington State’s ERPO law took effect last June. According to Sgt. Eric Pisconski of the Seattle Police Department, his Crisis Response Unit filed its first ERPO petition in July and has averaged about one every three weeks for a total of 13 to date.

“We get about 10,000 crisis calls a year. We can’t follow up on everything,” Sergeant Pisconski says. “We look at reports from Patrol to see 1) if someone is a disproportional user of 911 services, or 2) if someone is at risk for harming themselves or others.”

His team of five officers and one mental-health professional focuses on cases in which it suspects someone with mental-health troubles has access to firearms or is trying to get a gun. They methodically plan encounters and always take a tactical approach.

“It can be very dangerous. You say, ‘We think this individual is an extreme risk.’ So now,” Pisconski asks, with a wry, rhetorical chuckle, “we’re going to knock on their door and say, ‘We’re from the government? And we’re here to collect your guns?’

“It’s always a little iffy. So we try to get a little creative,” he says of the process of collecting the weapons. “We try to serve them off-site. We might meet them at a job site, or at a coffee shop. Then, if we think they still have firearms, we can go with them to their home, control the situation, and secure the firearms.”

Although the law was designed so a distraught individual’s family, friends, or co-workers could file an ERPO petition as easily as police, Pisconski says that, so far, he believes all ERPO petitions in Seattle have been filed by law enforcement.

“We had one case where we were trying to get the family members to file the petition, but they were hesitant, even though they were very, very supportive of removing the guns,” he says. “We told them, ‘We’d be happy to work you through the petitioning process,’ and they said, ‘Oh, we don’t want to be the ones with our names on the paperwork – because that will affect our family dynamic.’”

Such fears notwithstanding, before ERPOs it was more difficult, and more dangerous, for families to get help.

“When there isn’t an ERPO law, the threshold for getting care for someone is very high,” says Sandra Shanahan, program manager for the Regional Domestic Violence Firearms Enforcement Unit in the King County Prosecutor’s Office. “Getting someone involuntarily committed is very difficult. We have a lot of families who are very concerned about their loved one, but they can’t get the help they need.”

Balcerak called 911 that night her son James punched a hole in the bedroom door, and she begged responding officers for help. “They said there was nothing I could do to keep guns from my son,” she remembers. “I felt so helpless trying to keep guns away from him.”

Her best hope, the police told her, was to take out a restraining order against James – and pray that he would either violate the order or commit some other gun crime. Only then, they told her, could police intervene. But if 1491 had been law at the time, “I would have had the police get the order that night,” says Balcerak, who was the citizen sponsor of the initiative.

“For years, law enforcement has known that these are really challenging situations, and they can only do so much,” Ms. Shanahan says. “But with an ERPO, the police now have a new tool in their toolbox.”

Metzl believes ERPOs offer a place where conservatives and liberals may discover they agree on at least one solution to gun violence. “I think that ERPOs are one of several issues where we’ll be able to find common ground,” he says. “There already is plenty of common ground between gun-rights advocates and gun-control activists. Most gun owners aren’t in the NRA. Most gun owners support background checks. I just think there’s a common societal need to identify people who are at risk for harming other people, or themselves.”

Caveats to implementation

Yet the law is not enough, according to King County Prosecuting Attorney Dan Satterberg. Most counties and cities with ERPO laws lack the personnel, money, and preparation necessary to help the public get guns away from likely shooters, he says. Without expanded budgets and training, ERPO laws in these jurisdictions will become what Pisconski calls “feel-good legislation” ­– well-intended laws almost impossible to enforce.

Mr. Satterberg has an advantage: King County and the City of Seattle allotted about $1 million to help the Regional Domestic Violence Firearms Enforcement Unit troubleshoot the EVRO petition process, educate its personnel, and encourage more citizens to use ERPOs.

For at least 18 months, Shanahan says, “everyone involved in the ERPO process” met in work groups and shared successes and failures. “It created a blueprint and a work plan,” she says. “Laws don’t implement themselves; you have to have a work plan.”

Last week, representatives from the King County Prosecutors Office, the City of Seattle Attorney’s Office, the Seattle Police Department, and the King County Sheriff’s Office held a press conference to explain the ERPO law to residents and provide resources for them to use it.

“If you’re going to do it, you have to go all in,” Satterberg says. “You can’t ask an already-overburdened police department to do this. It just won’t happen.

“At least here in the Seattle area,” he adds, “if people were to call us and say, ‘We think this person is the next school shooter,’ we now have a team to help them.”

Oregon, California, and Indiana also have ERPO laws. A report in the Sacramento Bee says various California jurisdictions used the law 86 times in 2016 to confiscate weapons. It’s estimated that at least 12 states and the District of Columbia are considering similar legislation.  

Advocates of the tool point to a Duke University study of Connecticut’s law between 1999 and 2013. In 762 ERPO interventions, police found firearms in 99 percent of cases and removed an average of seven guns per subject. Researchers estimate every 10.5 petitions granted prevented one suicide. Satterberg, Shanahan, Pisconski, Metzl, and Balcerak believe ERPOs can have similar successes when it comes to reducing mass shootings.

“I had a son who was a murderer,” Balcerak says. “I had a stepdaughter – who was the daughter I never had – who was murdered. So I can see the issue from both sides.

“I honestly feel like there weren’t 17 victims in the Florida shootings; there were 18. Nikolas Cruz was a young man that definitely had mental illness, and should never have been allowed to purchase a gun,” she says. “If Florida had had extreme violence protection orders, the police would have had the chance to petition the court to take away the weapons he had, and prevent him from buying any more.”

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