At this point in time – Monday morning, June 13th, 2022 – the only new gun control bill that’s progressed through at least one chamber of Congress is the “Federal Extreme Risk Protection Order Act”, House Resolution 2377. It would allow U.S. federal judges to order the confiscation of firearms and ammunition from someone deemed an imminent danger to themselves or others. In accordance with this law, all of a person’s firearms and ammunition would be confiscated by the Police coming to their door, presenting them with an order, and getting on with searching their entire property.
This bill passed last week on Thursday, June 9th, with a final vote of 224-202, with five Republicans voting for this bill:
- Brian Fitzpatrick (PA)
- Anthony Gonzalez (OH)
- Chris Jacobs (NY)
- Adam Kinzinger (IL)
- Fred Upton (MI)
I point out that this bill passed with the support of five Republicans because these Red Flag laws are becoming quite popular – even among those who are otherwise “pro-gun” – as a form of “common sense gun control”, as “common ground” on which to meet those who want to impose additional gun control in a frantic attempt to curtail gun violence in America.
As of today, 19 states and the District of Columbia have enacted some form of Red Flag law, and although these laws are flying under the radar masquerading as “common sense gun control” they are far from it, as I will explain here. I’ll be discussing the proposed federal law (HR 2377), but all of these laws are very similar.
“EX PARTE” COMPLAINT, NO DUE PROCESS:
A complaint may be brought to a federal court by a parent, spouse, sibling, or child (referred to as the “petitioner” in this bill), related to the respondent (the person from whom firearms will be confiscated) “by blood, marriage, or adoption”. So, that could be a child, even by marriage, whether they live with the respondent or not.
A complaint may also be brought by “an individual who resides, or has resided, with the respondent during the past year which is utterly outrageous! An old roommate, a former tenant, or even someone who rents a room for a week from the respondent offered as an Air B&B would all qualify.
But get this; a complaint may also be brought by a “dating partner”! A freakin DATING PARTNER?!? You have got to be kidding me! Someone the respondent dated a few times can go to a federal judge, submit a sworn statement, and have the respondent’s firearms confiscated?
And all this is done “ex parte”, which means without the respondent being present in court or presenting any evidence on their behalf. That means without due process. That means the first that the respondent may even know about this action is the Police showing up at their door with the court order to take their guns.
DANGEROUS ENFORCEMENT, “LIMITLESS SEARCH WARRANT’:
So, the Police get an order to confiscate firearms from someone that a federal judge has literally deemed “armed and dangerous”. Now, think about that confiscation scenario for a moment. What do you suppose that will look like? Do you suppose that’s going to be a couple of beat cops on a lazy Saturday afternoon coming around for a friendly chat with the respondent? Is it going to be a county Social Worker? Or do you think it might be a SWAT team around 3:00 am? The respondent is supposed to be considered “armed and dangerous” after all! What do you think their odds of being shot and killed in that event might be?
Even though the Police may not know how many firearms the respondent may actually have (a firearms registry is still illegal, after all), they would most likely be aware that the average “gun owner” in America owns multiple firearms. And the local Sheriff’s Department maintains a list of who has been issued a permit to carry concealed, which means they’re likely to challenge the respondent at gunpoint as soon as they’re seen. Again, the danger to the respondent during the act of confiscation is significant.
Since this law specifies that ammunition must also be confiscated (as most of these Red Flag laws do), and since the Police have no way of knowing which weapons the respondent actually owns, the Police are cleared by the court to look for something as small as a single round of .22 short ammunition which is 7/10th of an inch long and a quarter inch in diameter. That means they’re warranted to search into the smallest areas and containers of the respondent’s home. So, they’re free to turn the respondent’s home inside out and search until they’re satisfied they’ve found everything. This amounts to an unlimited search warrant. Of course, anything illegal that they may find in the respondent’s home during their search is subject to charges and indictment.
CONFIDENTIALITY, DURATION, BURDEN OF PROOF:
The confidentiality clause in this bill prevents the respondent from being told who brought the complaint without the approval of the issuing judge. And that means the respondent is going to have to hire a law firm, and they’re going to have to go to court to even learn who they’re dealing with! What happened to being able to face your accuser?
The duration of this confiscation is a minimum of 14 days, but the federal judge may specify a longer period of confiscation of up to 180 days if they think that’s necessary. But this bill has no specification on the criteria for that. And there’s provision for a renewal of the order for an even longer period. So, really, no end in sight for the respondent, and no clear legal recourse either, other than expensive lawyers and protracted court proceedings which could easily drag on for months or even years.
On the positive side (and, no doubt, something that brings even some pro-gun types in behind these laws) is that the burden of proof is placed on the petitioner, and there are provisions for penalties and jail time for filing a false or frivolous sworn statement. But it must be proven that the petitioner knowingly did so in the first place… and that must be done by the respondent and his lawyers!
The potential for abuse of these Red Flag laws is significant, and susceptible to hearsay, despite requiring sworn statements under threat of penalty. People lie. Ex-husbands lie. Old girlfriends lie. Jealous co-workers lie. Even with a sworn statement as the tool of “evidence” and penalties for abuse in place, there will be those malicious individuals who will take advantage of this law.
These laws have already been exercised hundreds of times in a dozen States. But in nearly every instance the respondent has already committed some proven act of violence that justifies the imposition of the confiscation; they’ve beaten a spouse, or a neighbor, or attempted suicide, or committed some other violent act, and were subsequently reported to a court by a petitioner to have their firearms confiscated. This new House law has no such requirement. In fact, most of the States’ laws also lack this requirement. It’s just that these laws have thus far been implemented under more “reasonable” circumstances such as those noted above. But that does not mean that they always will be, nor must they be. Again, the likelihood of abuse is significant.
Finally, it’s highly likely that such laws will, eventually, be found by the Supreme Court of the United States (SCOTUS) to be unconstitutional.
Often the SCOTUS takes a very… very… very… very long time to hear and rule on a case. Years, in fact. Years and years. Until then, laws that may eventually be found unconstitutional remain on the books. They slowly progress through our system of lower courts while – in this case – the respondent’s firearms may remain in confiscation.
These Red Flag laws have really only been around for about seven or eight years, and the first were enacted in largely anti-gun States. But challenges are being filed, and eventually, one of them will be heard by the SCOTUS.
As American citizens, we’re all protected by the 4th Amendment. Like all of our Constitutional rights, the 4th Amendment is clearly written, quite short, and entirely without legalese, because that’s the way our Founding Fathers did things:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We are not subject to search and seizure unless evidence exists that we may have already committed a crime (…” upon probable cause, supported by Oath or affirmation”). These Red Flag laws amount to a prediction that the respondent may commit a crime at some point in the future.
Think of the times you’ve watched crime shows when our heroes have had to wait for some “hard evidence” to convince a judge to issue a warrant. Yeah, that’s TV, but it’s based on the law and the Constitution.
A sworn statement from a petitioner is hearsay and is insufficient to establish probable cause in nearly every case… except with these Red Flag laws!
No judge is going to issue a search warrant for the Police to bust down the door of an otherwise respectable lawyer’s home because a woman he dated three months ago thought she saw a bag of cocaine on his dresser (back to the TV cop show example). But, under these Red Flag laws, that same girlfriend can petition a federal judge, sign a sworn statement that the same lawyer told her he was going to commit suicide, and the Police are free to search his home (remember, no national firearms registry, so no way to know whether he owns firearms or not). And how in the world does that lawyer ever prove that the girlfriend lied on her sworn statement?
This right to protection from illegal search and seizure is among our most challenged and defended rights, and volumes of case and trial law exist to uphold this right. It stands without question. Yet these Red Flag laws fly directly in the face of it.
However, the SCOTUS has already spoken out against Red Flag laws. In May of 2021, in a decision related to the 4th Amendment, the SCOTUS found unanimously in favor of (9-0) our protection from illegal search and seizure in the case “Caniglia v. Strom” (SCOTUS 20-157). The opinion of the court clearly states:
“This case also implicates another body of law that petitioner glossed over: the so-called “red flag” laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons. They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues.”
In other words, this bill – as unlikely as it is to pass the Senate – would almost certainly be on the fast track to a Supreme Court challenge as soon as it’s applied in the field since this will be a federal statute and not a State matter.
So, I’ve discussed how these Red Flag laws violate a fundamental Constitutional right, how they are susceptible to abuse and misuse, how they violate due process, and how they put the respondent in grave danger during the act of search and seizure.
There’s a further implication; for someone working in a sensitive occupation – in the mental health field, childcare, the judicial system, or law enforcement, as examples – the imposition of a Red Flag order may cost them their job, or at least taint their records and retard their advancement. For someone with a government security clearance, they would most likely have their clearance suspended for the duration of the Red Flag order, which could result in reassignment and other impacts on their career.
These laws – regardless of the times when they’ve actually been effective – are quite simply bad laws.
So, just because something awful has happened – these school shootings in Texas and other places – and just because we feel that something must be done, and just because some anti-gun group suggests an action that seems to make sense doesn’t mean that it’s Constitutional, or safe, or sound, or even that it will be effective in the long run. Dig into the matter, exercise a little critical reasoning, and figure out what’s really going on, what will actually work, and what’s really at stake.