Problems With Red Flag Laws

The latest rage in gun control circles is so-called “Red Flag” laws. The idea is supposed to be that guns can be taken away from people who pose some kind of threat to the public.

There are multiple problems with these laws. The biggest concerns relate to vagueness, due process, and misleading language. President Trump’s suggestion that CNN anchor Chris Cuomo could be subject to a red flag law demonstrates these flaws.

See our new article: Red Flag Laws Are Racist

What are red flag laws? As Wikipedia puts it:

In the United States, a red flag law is a gun violence prevention law that permits police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves.

One of the most common practical terms used to describe these laws is that they authorize courts to issue “extreme risk protection orders.” That’s how gun control group Giffords describes them. It’s the word “extreme” that’s misleading.

Florida has adopted such a law. The statute avoids use of the word extreme, but it was used in the bill analysis the legislature relied upon. Other gun control groups continue to use the “extreme risk” language in describing Florida’s statute.

This is the biggest problem with the Florida law, and many other such laws. They are not about “extreme risk” at all. The Florida statute, titled Risk Protection Orders, doesn’t require that any such risk be extreme. Washington State’s law (RCW 7.94.030) does use the word extreme, but similar to Florida uses the actual standard “significant danger.”

Florida statute, 790.401, uses somewhat inconsistent language, but the general idea is that the supposedly dangerous person will have their guns taken away if they pose a “significant danger of causing personal injury to himself or herself or others by having a firearm.”

The statute authorizes a temporary order where the accused’s rights are taken away without any notice. The standard for a judge when faced with this is:

If a court finds there is reasonable cause to believe that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition, the court must issue a temporary ex parte risk protection order.

Reasonable cause is a very low standard, and significant danger is vague. The statute provides a list of factors for the judge to consider and this contributes to the vagueness and lack of standards.

Some of the factors are particularly dubious:

The first two factors:

  1. A recent act or threat of violence by the respondent against himself or herself or others, whether or not such violence or threat of violence involves a firearm.
  2. An act or threat of violence by the respondent within the past 12 months, including, but not limited to, acts or threats of violence by the respondent against himself or herself or others.

We’re already in vague territory here. What counts as violence? What counts as a threat? And why have one factor for recent and another that goes back 12 months?

If you think this is a trivial issue, consider the recent incident with Chris Cuomo. He threatened to throw a man down the stairs. That is a clear threat of violence.

Factor 3 in the Florida statute addresses mental health:

3. Evidence of the respondent being seriously mentally ill or having recurring mental health issues.

Chris Cuomo has admitted to having mental health issues and that it was a recurring problem – start around 2:09 in this CNN video – “many layers of my life for many years.”

So we already have two factors in the statute suggesting that Chris Cuomo could be subject to a red flag order.

Let’s turn to Factor 9: “The unlawful or reckless use, display, or brandishing of a firearm by the respondent.”

It’s hard to argue with the term “unlawful”, but reckless is open to interpretation. There have been at least two incidents where schools suspended students for posting gun range photos on social media, one involving high school students and another involving a college student. If they’re enough to get you suspended from school, that seems enough to count as reckless.

Then there’s Factor 12: “Corroborated evidence of the abuse of controlled substances or alcohol by the respondent.”

Why is this in the statute? I follow news of mass shootings and I don’t remember one where the shooter was noted for having an alcohol or substance abuse problem that was thought to have contributed to the shooting.

And what counts as abuse? I have a friend who drinks more than I do, and sometimes I think he drinks too much. Does that count? Marijuana is another problem. Many of us think that there’s nothing wrong with marijuana use, but others feel that any use of marijuana is abuse. Many years ago I handled a child custody case where the judge held the father’s use of marijuana against him.

Even proper prescription drug use could be considered abuse by a judge in one of these proceedings, especially in the early stage where the accused has not received any notice.

Next we have Factor 13: “Evidence of recent acquisition of firearms or ammunition by the respondent.”

This is disturbing. Maybe it makes sense for a person who doesn’t already own firearms. But what about someone who already has 5 guns and a thousand rounds of ammunition. Why would buying one more gun, or some ammo, indicate a risk?

Some readers at this point may be concerned about someone having a thousand rounds of ammunition. Gun owners buy ammunition in larger quantities for the same reason people shop at BJ’s and Costco. If you go to the range once a week and shoot 100 rounds, you’ll go through 1000 rounds in 2 1/2 months. I did an all-day training session at Florida Firearms Traning and went through close to a thousand rounds.

If that’s not bad enough, we then get to the most vague catch-all factors:

14. Any relevant information from family and household members concerning the respondent.
15. Witness testimony, taken while the witness is under oath, relating to the matter before the court.

Those are so wide open that anything can be said and could qualify to get such an order.

This brings us back to the standard for a judge to consider: “reasonable cause to believe that the respondent poses a significant danger.”

This makes it far too easy for a judge to take away a person’s rights, with no meaningful standards.

To be fair, we can be hopeful that most police agencies will not abuse this power and will apply it to the right circumstances. This is an example from Boca Raton PD that makes sense:

Of course with this one it’s not clear how sending police to the door of someone who is planning to shoot cops through the door is a wise plan. But it appears this was handled well.

In other good news we see a case from Jupiter PD in June where Judge Dina Keever-Agrama denied a temporary order. We’ve liked her for a long time.

Related due process concerns remain troubling. The accused can have his rights and guns taken away with no notice or opportunity to be heard. Then the accused can request a hearing, but “no sooner than 14 days and no later than 30 days.” You can’t get a hearing for at least two weeks and maybe as long as a month later.

At that hearing the accused has to prove he’s not a significant danger, and “by clear and convincing evidence.” That’s a much higher standard than the “reasonable cause” standard used to take rights away.

Another related due process concern is the law has regular orders where the accused gets notice in advance, along with temporary ex parte orders with no notice. Are the regular orders used at all? Has anyone kept statistics on how many of these orders were done with notice as opposed to without?

In a brief review of some cases in Palm Beach County and Broward County, every case is filed seeking the emergency temporary order. In one Broward case the “emergency” petition wasn’t filed until two weeks after the incident that prompted it, and that petition was granted even though it obviously was no longer an emergency. That seems to be a pattern in the few cases we have reviewed. If it’s an emergency, the petition should be filed right away. If it’s not filed right away, it’s not an emergency.

This might seem a minor detail, but police in one county can pursue an order against an accused in a different county. So the accused has to defend himself in a distant court. Why would this be part of the law? Why not insist that the petition come from the accused’s home county law enforcement and in his home county courts?

If al that isn’t enough, consider the use of the term “red flag”, a prominent communist symbol. President Trump’s suggestion that red flag laws could be used to disarm a political/media opponent like Chris Cuomo shows the danger.

See our new article: Red Flag Laws Are Racist