RED FLAG LAWS
By: Don West - CCW SAFE National Trial Counsel
Following the recent mass shootings in El Paso, Texas and Dayton, Ohio, there has been a renewed national interest in Extreme Risk Protection Orders (ERPO) or what has become more familiarly known as “Red Flag” laws. Currently, 17 states and the District of Columbia have some type of Red Flag process in effect with a lot more considering them. There is increasing bipartisan support for a national Red Flag law, including support by the President and prominent Republican Senators.
What are Red Flag laws? In a nutshell, a Red Flag law is a state statute that establishes a court process where the court can enter a temporary order which requires immediate surrender or confiscation of otherwise legally owned and possessed firearms when there is a supportable claim that the person possessing the firearms is a significant danger to himself or others. Usually, the firearms are held for one to three weeks or until a follow up hearing can be held for the judge to decide if the guns are to be retained for a significantly longer time, six months or even a year.
Because these laws are state laws rather than a standardized national law, they vary significantly from state to state. While some continue to make strong arguments that the Red Flag laws that result in the confiscation of legally owned guns violates the Second Amendment, most of the current discussion focuses on whether the laws are fair in their application and whether they actually work to accomplish their stated purpose.
Whether they are fair focuses on how much due process is provided to the person subject to having his firearms confiscated. That also varies greatly from state to state and while some states offer considerable due process, including the requirement that the petitions be filed by law enforcement or prosecutors based on clear and convincing evidence, others are so one sided with such low evidentiary thresholds that the law creates opportunities for mistakes and abuse. Then, of course, there’s the question of whether the laws work--is the process effective at identifying those extremely dangerous or suicidal individuals who reasonably should not be allowed access to firearms for the safety of themselves and others.
The legal process for confiscation is similar to the petition for restraining order process in domestic violence situations. First, someone files a petition with the court claiming that the person poses a significant/extreme risk to himself or others based on certain specific information, and that the person owns or possesses firearms and asks the court to order confiscation of the firearms. The court often issues a temporary order without input from the subject of the petition, requiring the person to surrender the firearms or authorizing law enforcement to confiscate them, sometimes incorporating a search warrant and without notice to the subject. Within the next one to three weeks, there will be a formal hearing where the court hears additional evidence, including from the subject of the petition and decides whether to make the order more permanent, lasting several months or longer.
Many of these orders can be renewed as well. Because each state enacts its own version of the Red Flag law, many vary significantly on the important aspects of how the petition is filed, the information required to be presented to the judge, whether counsel is provided to those unable to afford a lawyer, the standard of proof to be applied, whether there is live evidence subject to cross examination or merely written affidavits, how long the temporary order is in effect and the process for challenging the order. It’s in these variances that there is so much risk for mistakes and abuse. Indeed, there has been such backlash that some sheriffs have stated that they will not enforce the confiscation orders because they believe them to be unconstitutional.
In March of this year, legal scholar David Kopel testified before the United States Senate Judiciary Committee about Red Flag laws and how to establish guidelines for states planning to implement them. (It’s unlikely that there will be a national Red Flag law, but, more likely that there will be federal funding provided to those states that implement Red Flag laws conforming to certain guidelines.) Professor Kopel has examined the Red Flag laws currently in effect and proposed, notes their weaknesses and strengths and suggests the following be part of any Red Flag law that seeks to reduce abuse and provide due process for the subject of the proceeding.
- -Petitions should be initiated by law enforcement after an investigation (not subject to being initiated by spurned dating partners or relationships from long ago)
- -Ex parte (one sided) hearings only when there is proof of necessity.
- -Standard of Proof should be by clear and convincing evidence, which has been corroborated.
- -Guarantees of all due process rights, including cross-examination and right to
- -Court-appointed counsel if the respondent so wishes.
- -A civil remedy for victims of false and malicious petitions to discourage false petitions and give the victim recourse against the accuser.
- -Safe and orderly procedures for relinquishment of firearms.
- -Strict controls on no-knock raids.
- -Storage of relinquished firearms by responsible third parties.
- -Prompt restoration of concealed carry permits for the falsely accused.
- -Prompt return of firearms upon the termination of an order.
- -Renewal of orders based on presentation of clear and convincing proof.
- -Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.
Most of the Red Flag laws currently in effect are quite new. Even with the Red Flag laws that have been around a while, it’s not yet clear how effective they are at protecting society. Of course, we all want to be safe, but we want the laws designed to protect us to do so effectively and without trampling on our civil liberties. This is a delicate balance and not always easy to attain. Only with focused attention to vigilantly protecting due process and respecting our Second Amendment rights can we hope to accomplish both.