Red Flag Laws, Firearms, & Due Process

April 4th, 2019

Last week, Democrats and Republicans on the Senate Judiciary Committee came together in a bipartisan move to express interest in extreme risk protection orders, or “red flag laws.”

Members of the Committee, including the Committee’s chairman, Senator Lindsey Graham (R-S.C.), are hoping to create a federal level program that would incentivize states to adopt red flag laws. The goal would be to curb the epidemic of gun-related suicides and mass shootings by temporarily removing firearms from individuals who show they are a risk to themselves or others.

This issue is currently playing out on the national stage as Congress debates putting red flag provisions for “dating violence” or “misdemeanor stalking” into the Violence Against Women Act reauthorization.

We can look at arguments from both sides of the debate to see what implications red flag laws have for gun violence and due process protections in America.

What Are Red Flag Laws?

The specifics of extreme risk protection laws vary across states, but in general they allow certain individuals, such as law enforcement officers or family members, to petition a judge to have someone’s firearms confiscated because they exhibit certain “red flag” behaviors. These could be threats against classmates or coworkers, or expressing a desire to harm oneself. These people may have a mental illness or emotional disorder and suffer from suicidal tendencies or a propensity for violence.

Current law does not allow the government to confiscate guns or people to petition to do so without substantial levels of due process. Red flag laws seek to significantly lower this threshold, and in doing so, may end up restricting Second Amendment rights.

The popularity of red flag laws spiked after the Parkland school shooting in 2018, where several warning signs indicated that the shooter would likely attack Marjory Stoneman Douglas High. Since the tragedy in Florida, 34 states either enacted or proposed red flag legislation. California, Connecticut, Indiana, Oregon, and Washington all had red flag laws prior to the Parkland shooting.

However, it is worth noting that many of the Parkland parents take issue with how the school failed to prevent the shooting–not in a failure to confiscate Cruz’s weapons, but by ignoring the dozens of behavioral warning signs which should have gotten him expelled.

Due Process Concerns

Red flag laws raise serious questions about due process protections for legal gun owners. The provisions in some states’ laws even reverse the burden of proof on defendants rather than on those filing the petition.

For example, some states allow ex parte hearings in which a petition can be filed and firearms can be confiscated without giving the defendant prior notice or allowing them to provide counterevidence until a court hearing is scheduled, usually one to three weeks later. David Kopel, in testimony before the Senate Judiciary Committee, points out that stalkers and abusers can exploit this system to disarm their victims and strike while they are vulnerable.

In addition, some states only allow law enforcement officers to file a petition, while others also allow family members, dating partners, teachers, and mental health professionals to do so.

David Kopel, in his testimony to the Senate Judiciary Committee, explains how systems with broader definitions of people able to file petitions are easier to abuse, such as by an ex-boyfriend or distant cousin.

Furthermore, some states only require a preponderance of evidence in an ex parte hearing. This is one of the lowest burdens of proof in a civil case. Therefore, not only are defendants not present when the petition is filed, but it only need be “more likely than not” that they pose a risk to themselves or others to have their firearms confiscated and their Second Amendment rights restricted.

These are some of many due process concerns gun-rights groups name in their opposition to red flag laws. The National Association for Gun Rights released a statement saying, “Red Flag gun confiscation bills call for Second Amendment rights to be stripped from law-abiding Americans without due process based largely on unsubstantiated accusations from disgruntled family members, neighbors, coworkers, and/or current or ex-romantic partners, or roommates.” The Gun Owners of America released a similar statement.

Half of Colorado’s counties have passed resolutions stating that they will not enforce the state’s red flag law if it passes, citing similar due process concerns. Sheriff Steve Reams is quoted as saying that he would rather go to jail than confiscate someone’s guns.

Lack of due process turned deadly in Maryland, which does not require prior notice of confiscation. Officers surprised Gary J. Willis in his home at five in the morning and tried to serve him with a confiscation order. He became irritated and grabbed for his gun. He struggled with officers over the gun, which went off but did not strike anyone, at which point the officers shot him dead.

During the Senate Judiciary Committee’s hearing, senators on both sides of the aisle and all the hearing’s witnesses stressed the importance of protecting the due process rights of legal gun owners in any red flag legislation that the Committee considers.

In a response to a question posed by Senator Ted Cruz (R-Texas) during the hearing, David Kopel laid out what he believed should be the minimum for due process protections in red flag laws.

This included using ex parte hearings only if petitioners prove it to be an absolute necessity in the case of immediate danger. Additionally, evidence should be “clear and convincing” at all levels of hearings throughout the process, a higher burden of proof than most states require when the process is initiated. Defendants should have an appointed counsel, and the right to bring forth witnesses to support their case and cross examine witnesses brought against them. Lastly, defendants should be able to seek justice for any false or malicious testimony used to strip them of their right to bear arms.

As Kopel stated in his written testimony:

Federal incentives should aim to reduce the high error rate of ex parte orders, and to ensure protection of due process at every step…States that thwart cross-examination, promote unnecessary no-knock raids, leave innocent victims without a civil remedy for false or malicious petitions, or deny any of the seven core elements of due process should not be rewarded with federal funding.

Research shows that these red flag laws may have some  effect in preventing suicides and school shootings. But given the significant impact these proposals would have on Americans’ fundamental right to due process under the law–not to mention Second Amendment rights– it is incumbent upon Congress to proceed with caution.

David Grogan is an intern at CPI.