On 23 August 2017, the right-leaning web site Silence Is Consent reported that Oregon’s governor, Kate Brown, had signed a law which would allow for the confiscation of firearms without a number of conventional constitutional protections for the individual:
In an unprecedented move of ruthless tyranny, Oregon Governor Kate Brown has just signed into law a Democrat-backed document which allows the government to confiscate guns without any prior notice.
The law, based off of Oregon Senate Bill 719, has faced massive resistance from Republicans and Oregon citizens alike. Despite this, the local governments managed to sign it into law — Oregon is no longer a free state.
This new anti-second amendment law permits government officials to order the confiscation of guns, simply based off of hearsay evidence. There is no actual evidence required to order this confiscation, and before the gun owner is even given a hearing.
Worse yet, the only way for the gun owner to get his gun back is to file a case and prove his innocence. This is Orwellian, and it must be overturned by the Supreme Court; if this law begins being enforced, step by step, inch by inch, civilians will lose their second amendment rights.
The article accurately describes some components and implications of the law, but also greatly exaggerates its provisions, uses unspecific and misleading language, and also leaves out important facts and context about the legislation.
Oregon Senate Bill 719 is intended to introduce a judicial process whereby concerned individuals can ask a judge to quickly sign an order allowing for the confiscation of firearms from a particular individual deemed to present a risk of suicide, self-harm, or violence to others. It was signed into law by Governor Kate Brown on 23 August 2017, and will come into force on 1 January 2018.
The bill authorizes law enforcement agents to confiscate guns from individuals deemed to be a danger to themselves or others, under specific, limited circumstances, in what is called an “extreme risk protection order.” It can only be requested by law enforcement officials, family members and housemates, thus largely minimizing the risk of vexatious or malicious requests. (This limitation is not mentioned by Silence is Consent.) The order can only be granted by a judge, but must be either granted or denied within 24 hours of the request.
Further, it is somewhat misleading to claim, as this article does, that guns can be confiscated “simply based off of hearsay evidence” or that “no actual evidence” is required. The bill stipulates that in reaching their decision, a judge will consider the following kinds of evidence:
- A written affidavit or oral statement made under oath by the person making the request
- A history of suicide attempts or threats, or violence against others
- A history of attempted, threatened, or actual use of physical force against others
- Any previous convictions for: misdemeanor violence, stalking, domestic violence, driving under the influence, animal cruelty
- Evidence of recent illicit drug abuse
- Previous reckless or illegal use, brandishing or display of a deadly weapon
- Evidence of having acquired or attempted to acquire a deadly weapon within the past six months
If the request is successful, the judge issues the order, which applies for one year. The subject of the order has 24 hours to hand in any firearms or gun license they may possess, either to a law enforcement agent or licensed gun dealer. Law enforcement officials are also authorized to confiscate such firearms. For the next twelve months, the subject of the order cannot legally buy, possess, or attempt to buy or possess any firearm. They have 30 days in which to apply for a hearing to overturn the order, and such a hearing must take place within 21 days of their request.
If they don’t succeed in overturning the order, the order remains in place. If they do succeed, the order is lifted, and any property handed over or taken from them is returned to them, providing they are otherwise legally authorized to possess that property. The order is not automatically renewed after a year, but whomever requested it in the first place can request a renewal. The same process applies to the renewal request as it did to the original request.
One of the primary concerns of critics of the bill, who argue that it suspends due process and the right to a fair trial, is that the extreme risk protection order hearing is held ex parte, meaning that the subject of the request does not have a right to be present at the hearing and a judge need not hear or receive evidence from them.
This is true. SB 719 does call for ex parte hearings, and the subject of an order cannot block it in the courts in advance, they can only apply to have it overturned afterwards. However, the legislation does also stipulate that the burden of proof is on the person making the request, not the subject of it.
Another provision of the law — not mentioned by Silence is Consent — is that if the person making the request is found to have knowingly provided false information or intended to harass the subject of the request, they can be convicted of a Class A misdemeanor, which carries a prison sentence of up to twelve months in Oregon. This is the same charge and same penalty that applies to the subject of an extreme risk protection order if they violate its terms by, for example, buying or possessing a firearm after the order is in place.
This provision is likely to further minimize the risk of individuals maliciously or falsely accusing one another, and underlines the intention of the bill as being to prevent vulnerable individuals from seriously harming themselves and/or others, but only after “clear and convincing” evidence of a risk is provided.
The article makes a point of attacking Oregon Democrats over the bill, describing the law as “Democrat-backed.” What the article doesn’t mention is that one of the authors and public champions of the law is state senator Brian Boquist, a combat veteran inspired to begin writing the bill after the suicide of his stepson, a Navy veteran, in 2016. Boquist is a Republican.
Silence is Consent also falsely describes the bill as “unprecedented.” However, SB 719 was consciously modeled after similar legislation overwhelmingly passed into law by Washington voters as a ballot measure in November 2016.