Red Flag Laws

In past columns, I’ve suggested that the next round of gun control efforts were right around the corner. As we have seen, gun control advocates, politicians and the media have seized the momentum of recent mass shootings once again to advocate for stricter gun laws.

One of the proposals that seems to be gaining the most traction is an endorsement of extending so-­called “Red Flag” laws nationwide. At the time of this writing, 17 states and Washington, D.C. have Red Flag laws on the books, but what exactly do these laws do? The basics of Red Flag laws, sometimes referred to as Extreme Risk Protection Orders, are as follows:

A judge rules that an individual should be temporarily denied the right to possess a firearm because they are a danger to themselves or others. Initial orders usually last for 10-­14 days, after which a long-­term ban of between six months to a year can be imposed, depending on the state. Once such an order is in place, law enforcement officials seize all of the subject’s firearms and hold them for the duration. As with nearly any issue, state laws can vary significantly and there is no standard language in place across the nation.

I don’t disagree that there should be a mechanism in place to prohibit truly dangerous individuals from legally obtaining or possessing firearms, but the devil is always in the details. For one, such laws have to be enforced in order to be effective.

Every state that I’m aware of has involuntary commitment laws on the books whereby a court can declare someone a danger to his or herself or others. Once someone has been involuntarily committed under such circumstances, they are prohibited from possessing a firearm under federal law.

In the case of the Parkland School shooter, teachers and administrators raised serious concerns about the shooter’s potential for violence more than a year before he began his murderous rampage. Under Florida’s Baker Act statute, he could have been committed by a judge and would have lost his right to possess a firearm. Instead, the school system reportedly sat on the information and did not report it to law enforcement.

My biggest concern with these laws is the lack of due process. What is the standard for seizing someone’s firearms? And what is the mechanism for them to have their rights restored if an error or unfounded accusation was made? Can the witnesses be cross-­examined during their testimony? What is the standard and burden of proof required for depriving someone of their constitutional rights? These are all serious questions that merit clear and honest answers.

As an Assistant State Attorney in Florida, I saw numerous abuses of the system that I fear will spill over into the Red Flag landscape. In divorce cases, it was common for attorneys to coach their clients into obtaining domestic violence injunctions as a tool to leverage settlement, even when there was no evidence of abuse. The subjects of the injunctions, some of whom were police officers, would be prohibited from possessing a firearm for the duration of the injunction. In the case of the officers, this meant that they could not earn a living and found themselves over a barrel.

Once the divorces were finalized, the injunctions were dropped. These situations clogged the system and likely delayed protections for real victims of domestic violence. It was just another tool used by unscrupulous attorneys to advance their clients’ interests, and if you don’t think those same lawyers won’t abuse Red Flag laws, well, I have to disagree with you.

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Those who are truly a danger to their communities should be denied access to firearms, just as they have been for decades under existing law, but the process must be just, the evidence clear, the potential abuse minimized and a clear path to restoration of rights established. We should be careful when endorsing laws that could lay the groundwork for future abuses, particularly when they relate to our fundamental civil rights.