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Watson v. Wheeler

Supporting Washington D.C.’s Extreme Risk Protective Order (ERPO) law for temporarily removing firearms from individuals who pose a danger to themselves or others.

Case Information: Marcus Watson v. Douglas Wallis Wheeler, No. 2022-EPO-00007 (Superior Court of the District of Columbia, filed September 9, 2022)

At Issue: Washington D.C. has an Extreme Risk Protective Order (ERPO) law that allows law enforcement, family or household members, and mental health professionals to petition a court to issue an order temporarily removing firearms from individuals who pose a danger to themselves or others. The Respondent, who was subject to a preliminary order arising from a law enforcement petition, claims that this poses an undue burden on the Second Amendment. 

Our Brief: Our brief, using the historical analogical inquiry test under Bruen, demonstrates that we have a  long history of restricting firearm access for dangerous persons. D.C.’s ERPO law does not burden the Second Amendment because it regulates conduct not protected by the Second Amendment because the rights of law-abiding, responsible citizens are unaffected by the ERPO law. Those who would be affected—those who pose a danger to themselves or others—are entitled to process, including an evidentiary hearing, to ensure the judicial order is well-founded and constitutionally sound. The Respondent in this case was deemed in a court of law to pose a danger with firearms, and therefore not part of the people whom the Second Amendment protects. 

ERPO’s are an essential mechanism for keeping guns out of the hands of dangerous persons. Research demonstrates that certain risk factors, such as substance abuse, perpetration of domestic violence, and past violent behavior,  are reliable predictors of future violence. Research also demonstrates that ERPOs are an effective tool for addressing heightened risks of interpersonal violence, mass shootings, and suicide, based on the aforementioned risk factors. The law is therefore consistent with a tradition of legislation that bars firearms access for persons determined to be dangerous. For these reasons, we argue that the Court should uphold D.C.’s ERPO law.

Read the full text of our amicus brief here.


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