H3610 - Extreme Risk Protection Order Act.

Dear Representative <>,

It has come to my attention that the legislature is finalizing H4517 which is a bill to address situations which present extreme risk protection order and would give law enforcement some additional tools to deal with this. 

While there are parts of this bill that I agree with, I don’t believe it should be enacted as is.  I’ve read the bill entirely and there are many problems with it.  The very dangerous part of the bill is Section 131W – Ex Parte issuance, where, without a hearing they can confiscate your firearms until the hearing.  I note the following:

1. This bill is a solution in search of a problem.  We are trying to prevent school shootings that are simply not happening in our state (4 incidents since 1990 but only 1 in a high school/K-12, 0 incidents involving legally registered firearms, 1 incident was the Boston bombing suspects).  Getting illegal weapons off the street should be the priority of the state legislature, not punishing the thousands of legal, law abiding, gun owners.
2. Section by Section:
1. Section 131T, Paragraph F - This seems to subvert the sixth amendment.  You have the right to face your accuser and dispute the claims in a court during due process.
2. Section 131U, Paragraph C - I think this does need to be limited to an enumerated albeit broad set of threatening actions by the respondent.  There should be very little wiggle room.  What if the petitioner filing heard personally repugnant remarks but ones that may be protected speech?  There must be actual physical threats.
3. Section 131U, Paragraph C Note (iii) - How can you get this info (mental health issues of respondent) without violating HIPAA laws?  This must be obtained legally.
4. Section 131U, Paragraph C Note (ix) - Ironic that this text is limited to firearms why not enumerate other weapons?  Brandishing swords or knives should count as the same thing.  There have been plenty of people stabbed in Massachusetts.
5. Section 131U, Paragraph C Note (xi) -  This also seems like a privacy violation.  Who can verify that there is substance/alcohol abuse without clinical testimony?
6. Section 131W - This section is a clear violation of due process and should be struck in its’ entirety.  Someone who feels under extreme/imminent threat should file a restraining order, we already have mechanisms for dealing with this, let’s not create redundant ones that could be abused.
7. Section 131X, Paragraph (1)(c) - This section switches the burden of proof from the accuser to the accused which seems to violate basic principles of law…  The State should need to prove via preponderance of evidence that the person poses a significant danger (still) in order to keep the order in effect.

Everything about this bill seems to want to short circuit due process.  I would have less problems with modifications to existing laws that would allow police greater flexibility in investigating threats.  In principle I would agree with the underlying spirit of this bill but the points I have enumerated make it impossible for me to endorse it.  So again, (from my numbering above):

2.b – I think this is very important.  Many on the right are claiming that a single anonymous phone call could kick off the process for this act.  I don’t “believe” that to be the case but a judge has great leeway when making the determination.  I think these should be limited to explicit threats (verbal and sworn to, on-line and documented, otherwise written and documented) …  All with the understanding that lying to gain this petition would result in severe legal punishment

2.c – Explain how mental health information will be legally obtained…  I don’t understand how this can happen without a warrant.

2.d – Don’t limit this to firearms, any potentially lethal weapon should count.

2.e – Explain how this is ascertained…. Can investigating officers make that assertion?  What is the standard for OUI?

2.f – Remove this section but maybe lower the amount of time before a hearing.  Immediately serve the respondent, the sooner they know they are being scrutinized by authorities the less likely they are to act.

2.g – Change language to reflect proper burden of proof.

If these changes were made, I would support this bill.

A recent incident at my daughter’s school, The Shawsheen Tech, illustrates that this bill may not be needed.  During the incident, videos were reported to police by the perpetrator’s mother and others.  The police investigated right away, arrested him and took possession of what turned out to be airsoft guns, but they did the right thing by taking the threat seriously…  if only that happened in Florida. 

Massachusetts already has some of the strictest gun laws in the country and we should be proud of the fact that we haven’t suffered the same violence as other states. The gun violence we do suffer is nearly 100% caused by illegal possessors of firearms.  They won’t care about this law, just like they don’t care about all our other laws.  

Sincerely,