A Red Flag Law Fairy Tale
Public policy has long been one of my deeper interests, particularly in the arenas of international law and criminal justice. I often game out scenarios about how government can use its power to address various evils in the world with appropriate safeguards for individual liberty or, alternatively, how citizens can and should address abuses of government power. This comes out in most of my writing to some degree, but I doubt I will ever use my fiction to delve into issues to the degree of Robert Heinlein or Ayn Rand. However, in the wake of several recent mass shootings and the inevitable match of “save the children” hysteria vs. Second Amendment purity, I thought I’d share a few ideas I haven’t seen elsewhere.
The most frustrating element of most mass shootings is how frequently authorities discover warning signs in the behavior of the perpetrators prior to the tragedy. Thus, we have the push for so-called Red Flag laws ("RFL"), legal procedures intended derail a dangerous individual before they make headlines the hard way by confiscating any weapons they could use to commit mass murder. There is a strong attraction to such a possibility, motivated at least in part by a sense of obligation to “do something.” By the way, recent SCOTUS decisions suggest current RFLs would not survive legal challenges.
There are many reasons to reject RFLs, the first being that many times the “warning signs” publicized about past events (the premise for these laws) were sufficiently criminal in nature that the perpetrator should have been in prison rather than committing mass murder. If the authorities couldn’t enforce the law with sufficient efficiency to stop these perpetrators, why should anyone believe RFLs would make any difference? The second is that some 20,000 firearms restrictions do little to nothing to curb gun crimes, in general. Indeed, many mass shooting events would have been prevented if current gun laws had been enforced. Consequently, there is good reason to doubt the potential efficacy of RFLs. So, this exercise is not an argument in favor of these laws, it merely explores procedures and standards to apply in order to achieve the purported goal while preventing such laws from becoming tools for petty and grand tyrants.
The most common objections we here is the potential for violating the civil rights of persons who have done nothing wrong and abuse by way of malicious allegations. Another objection is the danger of a subject overcoming typical bureaucratic obstructionism when it comes time for their weapons to be returned. Law enforcement bureaucracy being what it is, it is easy to imagine a target of a Red Flag action winning in court yet still be unable to recover their property because the enforcing agency simply refuses to return it - or even destroys it. What recourse would an individual have against the people charged with enforcing laws? Finally, there is always the question of the financial burden to a target of a Red Flag action. The mere threat of ruinous legal fees could drive otherwise innocent people to “voluntarily” give up their rights for the promise of an easier path. A legitimate and Constitutional RFL should address each of these concerns.
A little explanation for those who aren’t familiar with the process: Typically, a “Red Flag Law” is implemented by use of Extreme Risk Protection Orders ("ERPOs"), which are issued by a judge following a complaint by a person with statutory standing to submit the complaint. They can often be issued ex parte, without notice to the subject of the order, so as not to alert the potentially dangerous person of the impending enforcement action. Such orders are required to be supported by declarations under oath or affidavits by people with personal knowledge of the facts, which requirement is often fudged a little when the declarant is a LEO. There is nothing inherently unconstitutional about ex parte actions so long as the subject is granted a hearing within a reasonable time to challenge the order, with “reasonable” being determined by the nature of the order. Exact requirements for ex parte orders vary from state to state but generally rely on the same principles from English common law.
Evidence and Investigation
I would start by looking closely at who is granted standing to file an ERPO report and what information must be included. I would require the complaint/application to be filed by a LEO, preferably a county sheriff or deputy assigned to ERPO cases. Others who are authorized to submit ERPO reports/complaints would be required to go through the designated LEO before proceeding to court.
Second, the application should meet very specific factual requirements, including a review of criminal records by the responsible LEO and any evidence of prior dangerous conduct. I would require any application to be supported by at least two declarations. An ERPO initiated by an LEO would need to be corroborated by at least one other LEO. I would also prohibit anonymous complaints, though I would give the judge authority to conceal the identity of any non-LEO declarants from the defendant. Note that the standard of the application would require at least some investigation by law enforcement, even if only superficially, before submitting the ERPO application to a judge.
Third, I would prohibit ERPOs in divorce proceedings or any other domestic dispute situation arising under family law. This may sound counterintuitive to some, but every state already has procedures to address such dangers. Those situations already create enough opportunities for chaos and injustice without giving vindictive spouses another tool to misuse. More important, and quite tragically, historic context of domestic dispute murders shows the presence or absence of firearms is irrelevant to whether a person will or will not murder their own family members.
Risk and Recourse
The public will never be comfortable with anything resembling pre-emptive punishment unless there is a reliable means of holding accountable those who violate the rights of the innocent. Therefore, my fourth requirement would be a bond large enough to cover any damages, costs, and legal fees the subject of the ERPO may incur. Bonds are commonly required to support ex parte orders in civil actions.
I would further require the bond to be increased at every stage (e.g. at every hearing) of the proceedings up to and including a final judgment, if any. This way, the LEO applicant will be required to honestly balance the cost to the public with the risk of actual harm. A subject of an ERPO would need to do something incredibly stupid to forfeit their right to cash in on the bond once the matter is dismissed. As discussed below, this is a feature not a bug.
If any one of these elements is not included, the ERPO must be denied.
As a fifth requirement, the subject would be entitled to a hearing on the application within three business days after service of the ERPO. The burden of proof will still be on the applicant, the ERPO authority – no burden shifting. The subject will be entitled to review all evidence in support of the ERPO and to an attorney, and shall have the right to bring character witnesses. The attorney will be entitled to recover fees directly from the bond, unless the court ultimately finds the subject was, in fact, an imminent danger and the ERPO was justified.
Sixth, if the judge determines there is enough evidence to support a finding that the subject posed an imminent danger at the time of the application, the subject can demand a jury trial. The subject can apply to have the bond increased if they feel it is inadequate to cover their damages.
Seventh, a subject shall be permitted to testify in any proceedings without waiving their 5th Amendment rights. This serves two purposes. It will allow a subject to explain actions perceived as dangerous which may have been misinterpreted by observers. This is a matter of efficiency of court and law enforcement resources. However, it may also allow a subject experiencing a mental health crisis to seek help without exposing themselves to criminal liability.
In order to avoid any attempted shenanigans regarding returning the subject's weapons, the court will be prohibited from ordering a return of only a portion of the weapons surrendered. Any and all weapons must be returned to the subject.
Finally, and this is critical, I would prohibit law enforcement from taking possession of the subject’s weapons or even touching them, except to return them to the subject. Instead, the ERPO would require the subject to deliver the weapons to a custodian of their choice, such as a gun shop owner, attorney, or even a bail bondsman, with adequate security. The subject could get help from friends in the event of a large collection, but could not give permission to the LEOs to touch the weapons. The LEOs will be required to keep the subject in their sight until the weapons are delivered to the custodian. The custodian would be permitted to charge for storage, and those fees could be paid (or reimbursed) by the bond, when it’s cashed.
How it would work
The procedure would be as follows:
1) A report is made by or through an authorized person.
2) The LEO or agency assigned to ERPO cases conducts an investigation.
3) The application is prepared and a bond is obtained to be submitted to a judge.
4) If the judge finds the ERPO is sufficiently supported by evidence and an adequate bond, they issue the order.
5) The responsible LEO serves (delivers) the ERPO on the subject, who is also advised of all their rights.
6) The subject collects their weapons and delivers them to a custodian. The LEOs stay with the subject until all weapons are surrendered to the custodian.
7) When the weapons are ordered returned, the custodian can recover storage fees directly from the bond surety. Moreover, the custodian will be required to return the weapons even if the fees are not paid.
Is the goal of RFLs to prevent potential harm or to disarm gun owners? If it is the latter, as proponents claim, then these procedures should serve that purpose and avoid harm to those merely because they own guns. The procedures should also be designed to prevent the harm without aggravating a person to a state of becoming a danger. There are several ways this formula accomplishes the alleged goal of RFLs.
If the ERPO authority receives a complaint about a normal, non-dangerous person, an investigation is likely to show there is no danger, and the ERPO will not move forward. If the ERPO somehow moves forward, it’s easy enough to defeat, and the funds to reimburse the subject for the costs and damages are already secured by the bond. Most important, when the ERPO is defeated, the court will order the return of the weapons by the custodian. The worst case scenario, barring nefarious conspiracies, is that the ERPO subject makes a little money for their buddies at the gun shop without spending a dime of their own.
Note that one of the factors a judge could consider at the full hearing is the behavior of the subject in response to service of the ERPO. A calm, patient demeanor could defeat an ERPO faster than a room full of witnesses.
If the subject is, indeed, a dangerous person, the initial investigation is likely to reveal grounds for an arrest in relation to prior encounters with police, eliminating the need for an ERPO. If not, the subject's reaction to service of the ERPO may expose an angry and/or irrational individual before they can cause harm. Alternatively, a potentially dangerous person with even a spark of intelligence will know they can cash in on the bond if they stay on their best behavior. Knowing they have drawn the attention of the authorities, any danger they pose will be avoided. Face it, no RFL would be able to prevent harm by anyone smart enough to recognize their exposure. The Las Vegas shooter comes to mind.
There is also the possibility that an ERPO will be the wake-up call needed for an isolated, emotionally spiraling individual to recognize a need to seek help and change their direction. So, even if there is insufficient evidence to support the ERPO, the procedure can serve to prevent harm.
In a worst case scenario, the ERPO subject will be disarmed and subject to closer observation by the ERPO authority, hopefully preventing harm.
The first element I like about this structure is the simple fact it would force law enforcement to pay closer attention to potentially dangerous persons without first waiting for some other citizen to be a crime victim. With this complaint and investigation model, a subject who may not be guilty of a crime sufficient to warrant incarceration could be investigated under an ERPO report. This process might have stopped at least three of the most sensationalized mass shootings in recent years, including the Parkland shooting.
The most critical element here, though, is putting law enforcement in the position at every stage of the proceedings of protecting the subject’s right to keep and bear arms rather than protecting the state’s privilege to disarm citizens. Since the ERPO authority must not take the weapons themselves and must obtain a bond, it will have to look at the facts in the light most favorable to the subject, not the state. The ERPO department (or whatever it’s called) will not want to seek bonds for cases that are clear losers nor would it want its officers occupied in frivolous babysitting duties.
So, there it is, the outline of a RFL that might prevent harm while also avoiding violations of the Bill of Rights. I would love to hear your thoughts. Do you think it would work? Would you support such a law? What you add or change?
Remember to play nice; this is just a blog post - I am not a lawmaker and I like to make things up!