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On February 14, 2018, a nineteen-year-old former student walked into the Marjory Stoneman Douglas High School in Parkland, FL, and fatally shot 17 people. There was an immediate national outcry to “do something” to stop the violence. When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws that would take away guns from individuals whose behavior raises a “red flag” that he or she could be a threat to themselves or others.
The purpose of these laws is to identify an individual that exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming the individual.
Commonly referred to as “Red Flag” laws, these bills model those already in existence in Connecticut, California, Indiana, Washington, and Oregon. In the fourteen months since the Parkland incident, ten more states have enacted their own versions. These states include Florida, Delaware, New York, Illinois, Massachusetts, New Jersey, Maryland, Rhode Island, Vermont, and Colorado. Twenty-three other states have proposed measures of their own as of April 17, 2019.
Red Flag bills allow police or family members to petition a state court to remove firearms from a person who presents a danger to themselves or others. At the initial hearing, the petition and evidence are presented supporting the claims the individual in question (the “Respondent”) is a threat. These hearings may be conducted “ex parte,” meaning the respondent is not present to defend himself or herself. If the order is granted, police will execute the order removing firearms with no notice to the Respondent.
If the initial hearing is ex parte, the court schedules another hearing to take place within a few weeks for the Respondent to attend and present evidence to refute the claims. If the Respondent is successful in their defense, the temporary order will be dismissed and the firearms returned. However, if the judge rules against the Respondent, the order will be extended by a period of up to one year.
“Red Flag” laws have also attracted the attention of federal lawmakers. Last year, on March 8, 2018, an unsuccessful bill was introduced in the U.S. Senate, led by Sen. Lindsey Graham (R-SC) and Sen. Richard Blumenthal (D-CT), that would have created a federal process for Red Flag firearm removal.
On January 3, 2019, Sen. Marco Rubio (R-FL) introduced S. 7, entitled the “Extreme Risk Protection Order and Violence Prevention Act of 2019.” The bill was read twice and referred to the Committee on the Judiciary. Sen. Rubio’s bill would provide grant money to states that enact extreme risk protection order legislation that meets certain federally mandated minimum standard requirements.
In a rare display of bipartisanship, Senate Judiciary Committee members from both parties seemed to offer their support for the growing movement among states to pass extreme risk protection orders. Chairman Sen. Graham, (R-SC) indicated he believed these laws to be beneficial, “even if you just stop one” death.
So, why all the bipartisan support for a traditionally left-leaning position?
Powerful people in the Republican party have come out in support of Red Flag laws, making it easier for the rank and file members of the party to accept some versions of these laws, especially since Red Flag laws do not impose new regulations on firearms themselves, but address the issue of mental health.
Shortly after the Parkland shooting, President Donald Trump expressed support for Red Flag laws. The Trump Administration formed the Federal Commission on School Safety last year following Parkland, and it too, endorsed Red Flag laws.
More recently, during his confirmation hearing in front of the U.S. Senate Judiciary Committee, now-U.S. Attorney General William Barr said that Red Flag laws are “the single most important thing we can do in the gun control area to stop these mass shootings from happening in the first place.”
But perhaps more telling are the polls that show a vast majority of Americans support Red Flag laws. A recent poll by the University of Texas and the Texas Tribune indicate 72% of Texans favor such legislation. A poll conducted by Everytown for Gun Safety claims nearly 90% of Americans support passing Red Flag legislation, “including more than 80% of Republicans and gun-owning households.”
Elected lawmakers are paying attention.
We all recognize that the Second Amendment does not create an absolute right to possess firearms that cannot be restricted under any circumstances. Convicted felons and persons adjudicated mentally incompetent are prohibited from possessing firearms, for example. But in these cases, the individual rights were taken away only after due process of law—a criminal trial or a mental-competency proceeding.
Red Flag laws allow the individual’s firearms to be confiscated without knowledge there was a petition filed against them and without the opportunity to defend themselves against the allegations. Isn’t that a clear case of violation of due process rights?
Not necessarily.
Both the Fifth and Fourteenth Amendments to the United States Constitution contain a due process clause that acts as a safeguard from the arbitrary denial of life, liberty, or property by the government. Procedural due process is meant to protect an individual from being deprived of life, liberty, or property unjustly or as the result of a mistake by allowing the person to contest the basis upon which the government seeks to deprive them of a protected interest. The individual must be afforded notice and a hearing before an impartial court is to confront and cross-exam his or her accusers.
However, the Supreme Court has said that due process requirements depend upon the circumstances. The Supreme Court noted in Walters v. National Association of Radiation Survivors, 473 U.S. 305, 320 (1985) that due process:
“is a flexible concept—[and] the process required by the clause with respect to termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur.”
