Red Flag Laws: Examining Guidelines for State Action

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“Red flag” laws or “extreme risk protection orders” have been enacted in several states. While the idea for these laws is reasonable, some statutes are not. They destroy due process of law, endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm the innocent victims.

Nearly a third of such orders are improperly issued against innocent people.

The Conference of Chief Justices asked the Uniform Law Commissioners to draft a national model red flag law, but the Giffords organization blocked the effort—lest it offer an alternative to the extreme and reckless system being pushed by Giffords and related groups, most notably the Bloomberg entities.

When Confucius was asked what would be the first step if a government sought his advice, he answered, “It would certainly be to rectify the names. . . . If the names are not correct, language is without an object.” ANALECTS, 13:3. Bills that claim to be about “Extreme Risk Protection Orders” are not correct; the bills cover much lowerlevel risks, or just “a danger.” Likewise, the term “red flag” is dubious because some bills label as dangerous the peaceable exercise of constitutional rights. A more accurate name for these laws is “gun confiscation orders.”

Such orders can be legitimate when fair procedures accurately identify dangerous individuals. Such laws include the following features:

  • Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.
  • Ex parte hearings only when there is proof of necessity.
  • Proof by clear and convincing evidence, which has been corroborated.
  • Guarantees of all due process rights, including cross-examination and right to counsel.
  • Court-appointed counsel if the respondent so wishes.
  • A civil remedy for victims of false and malicious petitions.
  • 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.

The above features can be found in some state laws, as will be detailed below.

Congressional funding incentives should be provided only to states whose red flag laws fully respect all constitutional rights and provide for fair due process.

David B. Kopel

Before the United States Senate Judiciary Committee
Full Committee Hearing