Yesterday the New York State Assembly approved a bill authorizing “extreme risk protection orders” forbidding firearm possession by people who allegedly pose a threat to themselves or others. A11148, which Gov. Andrew Cuomo is pushing, is similar to laws enacted in recent years by California, Washington, and Florida, and it poses similar due process issues.
It is tempting to think that would-be murderers can be identified before they act on their homicidal impulses, in which case taking away their guns or stopping them from buying guns could save lives without impairing the Second Amendment rights of law-abiding Americans. But such predictions are apt to be wrong more often than not, meaning that innocent people who intend no harm to anyone will lose their constitutional rights, either temporarily or indefinitely. How frequently that happens depends on the rules for issuing extreme risk protection orders, a.k.a. gun violence restraining orders (GVROs). In writing those rules, there is an unavoidable tradeoff between protecting the rights of respondents and protecting the public from individuals who might (but probably won’t) use guns to injure or kill people.
The New York bill, which still needs to be approved by the state Senate, allows a wide range of people to seek GVROs, including police officers, prosecutors, family or household members, and school employees such as guidance counselors, teachers, coaches, and administrators. It allows a judge to issue a temporary GVRO if he determines there is “probable cause to believe the respondent is likely to engage in conduct that would result in serious harm” to himself or others. That is a low threshold.
Probable cause, the requirement for a warrant or an arrest, is usually defined as a “fair probability”; it has no precise meaning, but in practice probabilities lower than 50 percent often count as “fair.” If we assume that probable cause is equivalent to a 40 percent likelihood (a generous assumption), the bill requires a 40 percent chance that the respondent is “likely” to hurt himself or others, meaning the chance that he will do so is more than 50 percent. Multiplying 40 percent by 50 percent, we get the threshold for a GVRO: a 20 percent likelihood of harm. To put it another way, four out of five people who temporarily lose their Second Amendment rights will be harmless.
That’s assuming judges carefully weigh probabilities. It seems more likely that they will err on the side of what seems to be caution. Given the low standard of proof and the scary prospect of being blamed for a respondent’s violence, judges will tend to rubber-stamp applications for temporary GVROs, especially since at this stage the “respondent” has no opportunity to respond.
A11148 requires a hearing within six business days, and that is when the respondent gets a chance to present his side of the case. If the judge decides there is “clear and convincing evidence” that the respondent is “likely” to hurt himself or someone else, he can issue a “final” GVRO that lasts up to a year. That standard is more demanding than the one for a temporary GVRO, but it still might translate into a probability of less than 50 percent. If clear and convincing evidence translates into 75 percent confidence and 51 percent counts as “likely,” for example, the odds that the subject of a final GVRO would actually have used a gun to harm himself or someone else might be something like 38 percent.
In practice, even lower probabilities might suffice. A11148 says judges can consider “any evidence,” including “evidence of recent or ongoing abuse of controlled substances or alcohol” or “evidence of recent acquisition [within the previous six months] of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor.” The fact that someone smokes pot or takes a relative’s pain pills hardly suggests he plans to murder anyone, but it would still be a strike against him in these proceedings. Even more remarkably, owning guns by itself counts as evidence that the guns should be taken away. Given those examples and a license to consider any other evidence, a judge who wants to take away a respondent’s Second Amendment rights, if only to avoid criticism for failing to disarm someone who eventually kills people, will have little trouble doing so.
The GVRO can be renewed annually, and it can be lifted before it expires only if the respondent demonstrates by clear and convincing evidence “any change of circumstances that may justify a change to the order.” In other words, the respondent has the burden of proving he is not likely to hurt himself or anyone else.
A law like this would give a long list of people, including ex-spouses, third cousins, current or former housemates, current or former lovers, and gym teachers, the power to harass someone who has pissed them off. The NRA worries that “teachers with differing political opinions or personal differences could initiate these court proceedings with little proof that an actual threat exists.” But the bigger problem is likely to be people who sincerely but mistakenly believe that someone they know poses a danger to himself or others. The possibility that something horrible will happen if they do not act will loom large, while the downside will seem trivial by comparison. The same will be true for the judges who evaluate these petitions.
Those incentives endanger the constitutional rights of morose misfits, prickly oddballs, and college students who say stupid stuff on the internet. This sort of law may or may not stymie anyone who actually poses a threat to public safety, but it certainly will hurt people who don’t.
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