Red Flag Laws Are Racist and Unnecessary

Red flag gun control cases are being applied in a racist manner here in Palm Beach County. We looked at how the new law is working and found racism and some other problems. As a side note we noticed that one case involved the son of a prominent local doctor harassing a family member of a famous athlete.

See our previous article – Problems with Red Flag Laws

The “red flag” law in Florida is titled Risk Protection Orders. Sheriff Rick Bradshaw recently claimed the law is working. But for whom?

We looked at the twenty most recent “risk protection” cases. Eighteen of the people targeted were white. Only two were black.

This is a county where 50% of the arrests – and 80% of the felony arrests – are of black people.

At first blush you might see this as racism against whites, but when you understand how it works in practice it’s used to favor white defendants.

Criminal Cases

Sixteen of the twenty petitions involved criminal behavior. A risk protection order is completely unnecessary if the subject is prosecuted.

If someone is arrested and charged with a crime, the judge can order that their firearms (and other weapons) be taken away while the charge is pending. If they’re convicted and they go to jail they can’t have any weapons in jail. If they’re put on probation, not having weapons is a condition of probation.

In other words, in cases where the subject of a risk petition committed a crime, risk protection orders are unnecessary.

So where’s the racism? In some cases risk protection petitions are filed instead of filing criminal charges. In cases where criminal charges are filed, the risk protection proceeding is used as a bargaining chip. If the defendant consents to a risk protection order, he gets a better deal on his criminal case.

While these petitions are still rare, risk protection proceedings are more likely to be used with white defendants and in the end they are used to protect whites from the other consequences of their crimes.

Criminal convictions can put defendants on the federal list for background checks, stopping them from buying guns legally. According to the Giffords Law Center: “Most NICS denials are due to felony or misdemeanor convictions.”

A risk protection order does not put the person on the federal background check list so it does less to stop them from getting guns in the future than a conviction.

Other Problems

Going through these petitions, it is generally obvious that we don’t want these people to have guns. But the use of risk protection petitions to get there is dubious. Here’s a great example from a Boca Raton PD petition:

We can probably all agree we don’t want this guy to have a gun. But when someone threatens to shoot any police officer who comes to his door, sending police officers to his door seems like a dangerous approach to the problem.

This individual faced a risk protection petition, but no criminal charge was filed against him even though he could have been charged for making a written threat to kill. And yes, he’s white.

Delayed Emergency

From a due process standpoint one of the most interesting things about these petitions is the use of the emergency proceeding. The risk protection statute allows for a regular petition where the supposedly dangerous person is notified in advance of the proceeding and can participate in the initial hearing before guns are take away. It also allows for an emergency petition where the police go to a judge “ex parte” – without notice to the individual or a chance to participate.

Of the twenty petitions we reviewed, every single one of them was done as an ex parte emergency. But they weren’t really emergencies. On average the petitions were filed about ten days after the incident that was the basis of the proceeding. Six of the petitions were filed two or more weeks afterward.

If it’s really an emergency that this person shouldn’t have guns, the petition should be filed right away. If it’s not filed right away, it’s obviously not an emergency and judges should refuse to grant the temporary relief.

Judges did say no to temporary relief for two of these petitions, but it doesn’t appear that delay was a reason, and it’s not listed as a factor in the statute. So far we only see one petition where the final order was denied. Three are still pending.

Baker Act

Twelve of the petitions either involve Baker Act proceedings or, on our review, Baker Act proceedings could have been initiated. The Baker Act is a Florida statute that allows for courts to order a person to get a mental health examination and put them in inpatient treatment if necessary. That person would not have access to guns during the process.

A Baker Act finding that someone has a mental illness should put that person on the NICS background check list. Florida has not been good about following through on this, but using risk protection petitions is even less effective because the result doesn’t qualify for the background check program.

In every single petition we reviewed, the matter could have been resolved – and guns taken away – either through criminal prosecution or a Baker Act proceeding. So it appears the red flag law accomplishes nothing in terms of making us safer from dangerous people.

Family and Roommates

Another flaw in the red flag law approach is its inability to deal with people who live in the same home as the dangerous person. In one case the subject lived with his father. In another the subject lived with his girlfriend. In each of these two the other resident asserted that at least some of the guns in the home were theirs and did not agree to give them up.

The statute doesn’t give police or the courts the authority to take guns away from them, and it also does not give authority to take the subject out of that home. Criminal prosecution and Baker Act proceedings can both address this situation. Red flag laws do not.

The Famous Athlete

To be fair to the athlete and his family, who have done nothing wrong, we will not name names. But this is the language from that incident:

Following what we have seen in other cases, this white son of a prominent doctor was not charged with any crime. This is despite having a 2016 felony arrest for assault with a deadly weapon after he threatened his father with a handgun.

The female victim is a family member of a famous athlete, and the subject and his father are friends of the athlete’s family.

So far we are not seeing police using Florida’s red flag law to go after outspoken politicians or activists. That may be a legitimate fear sometime in the future but it’s not what’s happening now.

Red flag laws lack the due process protections of other proceedings and are less effective than the tools we already have. And of course, they are applied in racist manner to protect white people from the consequences of their criminal behavior, while black people do not get the same benefit.

See our previous article about problems with red flag laws.