“Red Flag” Laws

From this helpful summary of recent trends in US gun laws at Ammo.com:

After a wave of mass shootings in 2017 and 2018, one of the most fashionable pushes for gun control was the rise of so-called “red flag” laws, or Extreme Risk Protection Orders (ERPOs).
[. . .]
Red flag laws enable law enforcement to confiscate firearms from an individual who is considered a threat to themselves or others. However, these confiscatory actions can be taken based on simple allegations. An accusation from a family member, friend, or associate is enough of a justification for law enforcement officers to seize an individual’s firearms.
Potential for due process violations has emerged since red flag laws started gaining traction. Even the American Civil Liberties Union, who views the Second Amendment as a collective right as opposed to an individual right, has expressed concern about how red flags will essentially create Minority Report-like scenarios in America. Individuals could see their rights stripped just based on speculation on the part of petitioners and a judge.
Subsequently, the accused are compelled to take their accusers to court, even though the accused has never been charged with or convicted of a crime. To make matters worse, the defendant could have their weapons seized without even a hearing before a judge. Months could go by before a gun owner wins back his gun rights in court.

It seems likely that govt officials will use red flag laws to harass unpopular people. It seems likely that red flag laws will have perverse unintended consequences such as ex-girlfriend empowerment. Red flag laws will be enforced by the same institutions and officials whose inability to prevent or stop mass shootings is used as an argument for passing red flag laws.

In politics, if it feels good, if it’s fashionable, if it’s glib, if everyone seems to want it, it’s probably a bad idea.

15 thoughts on ““Red Flag” Laws”

  1. I don’t see why very specific red-flag laws should be a big problem, any more than restraining orders, but of course first, they won’t be drawn very specifically or carefully, and second, even if so, they won’t make a darn bit of difference in the rate of murders of any sort, certainly not mass shooting events, which are vanishingly rare and should not drive policies on anything.

  2. Confiscation should be determined by a panel of the confiscatee’s peers, and the actual confiscation should be carried out by a posse comitatus comprised of the confiscatee’s neighbors, friends, relatives, and preferably including whomever initiated the confiscation, unless perhaps they can provide some extraordinary medical excuse. It should require extreme responsibility and reordering society back to a place where it hasn’t been for awhile.

  3. It seems like Red Flag Laws are treating the symptom (and treating it very incompetently) rather than treating the problem. The problem is a person who wants to kill her fellow human beings.

    Take away her guns, especially if it is done in an unfair authoritarian way, and her desire to kill will be even greater. If she is like a Londoner, she will then knife a few random people on the streets. If she is as smart as an Osakan, she will use firebombs to burn tens of people to death. And if she is simply lazy, she will drive her vehicle into a crowd of pedestrians. No gun required.

    If the human being is the problem, lock her up! And if someone wants to start by locking up most of our Congressional representatives who are posturing instead of addressing problems, I for one will not object.

  4. “It seems like Red Flag Laws are treating the symptom (and treating it very incompetently) rather than treating the problem.”

    If we eliminated all of the laws that merit that description, we could put the whole U.S, Code on a post card.

    The laws look tailor made to justify “no knock” raids, all sorts of armor and military type hardware and tactics against anyone that might own guns.

  5. You could argue that someone who is dangerous enough to be disarmed should be involuntarily committed. Alternately, someone who isn’t dangerous enough to be committed shouldn’t be disarmed. Red flag laws punish while pretending to be doing something other than punishing, and they do it in order to avoid the legal scrutiny punishment or involuntary commitment merits. Certainly there are people who shouldn’t have weapons, but that fact doesn’t justify creating rules that, in the process of depriving some of those people of weapons, invite the abuse of a much larger group of people.

  6. I predict that wherever these laws are enacted, over 95% of the enforcement actions will be for harassment or vengeance.

  7. We have a red flag law going into effect here in Colorado on January 1.

    Anyone can file a complaint with a judge alleging that a person [who the complainer may not even know] is a danger and should have his firearms confiscated.

    With no further input, no chance by the person being charged to answer, and no burden of proof, the judge can order all the person being so charged’s firearms confiscated for 364 days, and order local law enforcement to do so.

    Law enforcement is supposed to go do so.

    After the confiscation, the owner of the firearms is given one (1) chance to file a request for return. Once again, no chance to meet the accuser, very limited due process, and the point is open whether they will be allowed legal counsel. If the answer is no, the confiscation holds.

    At the end of 364 days, it may be renewed by the judge ad infinitum.

    Colorado has 64 Counties, two of which are combined “Cities and Counties”. Under our state constitution, the Sheriff of each County is the supreme law enforcement authority in the County, and incidentally runs the County government if anything happens to the County Commission. The Governor has no executive authority over the elected Sheriff, except possibly if he declares martial law and sends in the Colorado National Guard. The Sheriff has command authority over all local law enforcement in the County, and neither the CBI nor the State Patrol can over-rule him. In the “Cities and Counties”, the appointed Chief of Police is ex officio Sheriff but subordinate to the Mayor. Being Democrat satrapies, the City and County’s of Denver and Broomfield will do literally anything they are ordered to do, regardless of the Constitution.

    Of the 62 remaining Counties, 38 have by declaration of the Sheriff AND the unanimous votes of their County Commissions declared they will not confiscate anyone’s arms under this law. I am proud to say that my County Commissioners and Sheriff are in that 38.

    I expect that in one or more of the 26 remaining Counties/”Cities and Counties” that confiscations will be ordered based on personal animus and/or political animus. Purely by surprise, I expect the first time or two to be non-violent confiscations. Once the word is out, I expect that there will be resistance by the victims, probably ending in a Ruby Ridge type situation and multiple deaths. Shortly thereafter, I expect that . . . “groups capable of responding on a Minute’s notice” . . . will form. And attempted confiscations will be met with organized resistance, with all that implies. In passing, and remembering that I live in a rural area, talking with the local cops they say if they get orders to confiscate someone’s guns; the badge comes off immediately. Both because of loyalty to the Constitution, and because in small towns everybody knows where you and your family live. Civil wars are most uncivil.

    There are a whole lot of possible triggers for a multi-sided internal war. The percieved lack of legitimacy of all branches of the Federal government based on recent actions and events where the rule of law has become the rule of the powerful, the insistence of state governments that they are not covered by Federal law or the Constitution, and the contempt that both political parties have for the American people and elections mean that there are hair-triggers everywhere. Red Flag laws are all such triggers.

    I have often noted that we became a separate nation, not at Lexington or Concord, or in Philadelphia over a year after Lexington and Concord. Rather, we became a nation JUST AFTER Lexington and Concord as the British were withdrawing.

    On the route back to Boston, there is a crossroads known as “Meriam’s Corner”. Not surprisingly, it was where the Meriam House stood. That is where the militias of all the surrounding villages; villages who themselves had not been attacked by the British and not directly threatened, joined the battle against Crown troops and chased them back to Boston and there besieged them. At Meriam’s Corner an attack on one, became an attack on all, regardless of who the statutory government was. Americans became functionally a different people than the British. That is a process that has been repeated throughout history.

    It does not always turn out for the better. In fact most of the time it doesn’t. But those who would be tyrants never learn that there are limits to how far you can push people. So they never stop.

    Subotai Bahadur

  8. Red flag laws are designed to be abused. Period.

    Anyone who thinks a red flag law won’t be abused is delusional or in on the scam.

  9. It amuses and horrifies that everyone in this thread has already bought into the enemy’s logic and is dissing red flag laws on their perceived merits or demerits. No one has spoken up and pointed out how to openly gang rapes the 4th and 2nd Amendments. The latter we are used to. The former is new and sinister.

    You are boiling to death. Stop that sh*t.

  10. We have a mental health problem – the mass shootings aren’t as obviously a symptom as the homeless thousands. Medicine is better than it once was – but most of it still has heavy side effects. As Jonathan observes, if others think someone should have his guns taken then generally more restraint (and observation) is needed. The old mental hospitals were not great (I worked in one 55 years ago when they were numerous and sprinkled across the nation); the system of half-way houses that aren’t half-way but essentially permanent arrangements for some unable to live in normal society is intense, somewhat depressing, and awfully expensive even when done with minimal pay, etc. (my daughter worked in those for 2-3 years after getting a soc degree). Neither seemed something I’d want for a loved one. But few (especially given the smaller size of families today) have the energy, time and ability to give round the clock observation to family members truly mentally ill (as the families of both the homeless and shooters demonstrate). Besides, again as the shooters’ families often demonstrate, we often don’t want to see what is in front of us and our judgement is not so good when a family member is concerned.

    I don’t know the solution but what exists is dangerous for all concerned and broad brush less intensive approaches – such as red flag laws – seem destined to be misused. (Neighbor’s arguments over property, noise or barking dogs; domestic brawls, etc. These would likely be dangerous for the police enforcing the laws and having a defensive weapon taken because of the charges of a stalker is but one of the scenarios that come to mind.)

  11. Mr Stone: I’m not very connected to, or knowledgeable of, all the details of gun issues. As far as I’m concerned, the 2nd Amendment is clear, that people have an individual right to own guns, and that shall not be infringed. So I’m on your side, pretty much. A couple of quick questions for you though:
    1. I think it is still a good chance that courts below the Supreme Court will uphold almost any gun restrictions that the Democrats pass, whether on a local, state, or federal level. And it will only take on Supreme Court switch for them to strike down Heller and rule that anything up to and including confiscation is permitted. Do you think in such a case that red states could pass a law saying all adults are in their militia, and therefore are permitted to own any guns they like? It’s kind of hard to see what the liberals could do about that, although I suppose they would say that’s not “well regulated” enough or something.
    2. In such a case, wouldn’t it still be possible, and even advisable, to have SOME sort of way to identify people who are just clearly inappropriate to own a gun? It sounds to me like the FL “red flag” law is fairly narrowly drawn. And the CO law sounds probably too broad. But I don’t think that they’re automatically beyond the pale to look at, any more than libel/slander laws are outrageous infringements on the 1A…

  12. I think we need to apply these RFLs immediately to as many people on the Left as we can, particularly politicians and judges and DAs partial to them. Tie up the courts, and tie THEM up in courts, and, while we’re at it, establish a history of political bias shown in the eventual actions taken and done seriously… Because the Left is going to dismiss those charges against themselves…

  13. “Red Flag” Laws always lack “due process” for the targeted individuals. Progressives/Leftists commonly consider opinions in opposition to their philosophy to be “Hate” and “Hate Speech” is equivalent to “Violence”. Sen Harris has already announced her intention if aheis elected as President to use such laws as a means to disarm her political opponents. The legal fees for resisting such abuse will be ruinous. But it is not “abuse” (from the Leftist point of view) if only non-Leftists are targeted, because all their opponents are “racist” and/or “fascist”.

    The “Red Flag” laws are designed specifically to support the “Red Flag” politics.

  14. Should anyone wish to read the text of the Colorado law as signed by Gov. Polis, it’s here: https://leg.colorado.gov/sites/default/files/2019a_1177_signed.pdf

    The text includes several nods of the head toward verification of the petitioner, hearing within 14-days, legal counsel provided, etc., but as with all things words are one thing & implementation and execution are another.

    I’ve only just quickly skimmed the final document as signed, but one thing I did note is that issuance of the ERPO requires a preponderance burden, but respondent’s request for termination of the ERPO requires that the higher clear and convincing burden be satisfied. Preponderance doesn’t seem like a very high bar for depriving someone of several of his constitutional rights. And, how many judges will likely give the respondent the benefit of any doubt whatsoever when to decide wrongly could, just possibly, result in danger or death for the petitioner?

    I also see that 13-14.5-113 provides that:


    “May….” That’s a crock. There should be no wiggle room about holding anyone who files a malicious or false petition for a ERPO criminally liable. That provision should not be permissive in its wording; prosecution should be obligatory.

    There’s more in the document — so that’s my homework for tonight. :)

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