Gun control has been a prominent focus of the Democratic primary debates, reflecting a larger national trend. 2017 saw an increase in gun deaths compared to the prior two decades and was a particularly devastating year in terms of mass shootings, and student-led demonstrations that spurred a national movement point to wide-spread concern over this gun violence. This concern has been translating in many state houses, too, with one key legislative solution earning bipartisan support: red flag laws.
Red flag laws began rapidly cropping up in 2018, and a 2019 survey reported an 85% favorability rating for these laws in the U.S. In addition to support from left-leaning groups such as Everytown for Gun Safety, backers also include President Donald Trump and the NRA. Currently, 17 states and D.C. have a red flag law, though Virginia governor Ralph Northam is expected to sign one any day now, and Minnesota’s House passed their own version while this blog post was being drafted.
Although no two state laws are identical, the basic idea of red flag laws is to grant statutory authority to law enforcement to petition courts for an extreme risk protection order (ERPO) calling for the temporary confiscation of firearms from a person deemed at risk of harming themselves or others. Of the current red flag laws, most also allow a family member, or, less frequently, school personnel or medical/mental health professionals to submit the petition.
In spite of the broad support for these laws, they garner their fair share of pushback. Virginia’s legislation has prompted counties and towns across the state to declare themselves “Second Amendment Sanctuaries,” defined by their refusal to permit local law enforcement officers to enforce the state laws. In New Mexico, the chairman of the New Mexico Sheriffs Association wrote a letter opposing the state’s new red flag legislation, prompting the governor to reply that sheriffs should plan to enforce the law, or resign. Local law enforcement concerns found validation in an op-ed written by Alan Dershowitz, where he warns that we should view skeptically any attempt by government to confiscate personal property based on the prediction of future harm.
In the context of red flag laws, Dershowitz is likely referring to the provision that allows courts to issue an ex parte order, or emergency ERPO, for a sufficiently imminent threat. An emergency ERPO does not require prior notice to the subject of the petition, and allows the court to order immediate confiscation, before a hearing is scheduled for determination of a final order. This raises due process concerns for those who share Dershowitz’s perspective, or the idea that the government cannot deprive you of your property absent some sort of legal process.
As one of Dershowitz’s former students, David French, points out however, we temporarily (and without a prior hearing) deprive people of liberties based on threat of harm all the time. ERPOs serve essentially the same function, and follow essentially the same procedures, as domestic violence protection orders or restraining orders.
What’s more, states have included crucial procedural protections to make sure ERPOs are not especially pernicious. Every state caps the number of days that such pre-hearing confiscation will be allowed, to make it as temporary a deprivation as possible—the vast majority say that a formal hearing must be scheduled for no more than 14 days after the ex parte ERPO was issued. At the scheduled hearing, the judge will determine whether to issue a final ERPO, which generally lasts for 6 months to 1 year, subject to renewal. In all states except Connecticut, there are also procedures in place for getting the order terminated before the full year is up.
Besides limiting the amount of time an individual can be subject to both a pre- and post-hearing ERPO, states also adjust their standards of evidence to reflect the deprivation of property. Most states allow a court to issue an ex parte ERPO with probable or good cause, but require the much higher “clear and convincing evidence” standard before a final ERPO can be issued. This helps ensure final ERPOs are only issued in sufficiently serious circumstances, indicating that lawmakers do not take confiscation of property lightly.
Finally, those states that allow someone besides a law enforcement officer to file a petition have made it a crime to knowingly file a false petition or to file one with the intent to harass. This addresses the concern some had that these petitions could be used nefariously.
All of these factors taken together could well bring red flag laws within constitutionally required procedural due process. In Mathews v. Eldridge, the Supreme Court established a balancing test, in which a pre-hearing deprivation of property would not violate due process rights so long as the government interests in the deprivation were sufficiently high to outweigh the individual’s interest, and the procedures involved a reasonably low risk of error as compared to viable alternative/additional procedural mechanisms.
Although a red flag law has never appeared before the U.S. Supreme Court, state courts in Connecticut, Florida, and Indiana have upheld their respective state laws against constitutional challenges. As red flag laws continue to spread, however, more legal challenges will certainly be filed, and it’s difficult to know what the outcome would be with two new justices on the Supreme Court. In December, the Court heard oral arguments in a case on licensing requirements for gun owners in New York City—the first case on gun issues the court has heard in about a decade. It’s unclear whether the Court’s decision will shed any light on the Justices’ views on the constitutionality of gun control legislation, however, as the decision is likely to focus on mootness instead of the substance of the challenged laws.
One thing is certain though: we should expect to see more state red flag laws passed in the near future. A state-by-state approach of course has its limitations, as it’s not clear a neighboring state would enforce the order prohibiting an individual from purchasing firearms. For now though, it may be the only viable option, as Donald Trump has dropped the issue, reportedly in response to push-back from gun lobbyists and some Republican lawmakers. This means chances are slim that a federal law is coming anytime soon.