17 States have enacted “Red Flag Laws.” Most Red Flag laws share the same framework. However, the variances in the laws from State to State are pretty concerning. Some States provide attorneys for Respondents of Extreme Risk Protection Orders (“ERPO’s”).
While I haven’t looked at each State’s legislation (and I am not going to), I haven’t seen resources that provides information to the Respondent, other than when they have to surrender their arms and appear in court. Some State’s only have their protective orders go into effect after mental health providers make a determination (this can be problematic as well). Vermont’s law is very strict, as only a State’s Attorney can request a court to issue an ERPO.
Many of the States have laws that reference other areas of code. That means a seemingly harmless change of one law can drastically change the way ERPO petitions operate. That is the way laws are changed over time, under the radar of interest groups.
Colorado’s Red Flag Law
Colorado passed it’s Red Flag law this year, and already Coloradans are attempting to repeal (HB 1177).
According to it’s bill summary, Colorado’s law, which goes into effect next year, allows for a family or household member, or law enforcement to petition for a temporary ERPO. This petition must establish:
- by a preponderance of the evidence (a lesser standard than ‘beyond a reasonable doubt’)
- that a person poses a significant risk to self or others
- by having a firearm in their custody or control
- Petition is under penalty of perjury (no one initiates cases solely on perjury, so this is meaningless).
The court, upon receipt, holds a hearing in person or by phone on the day it is filed or as soon as possible. After the temporary ERPO is filed, the court has to hold a second hearing within 14 days, to determine if its warranted. The person affected is without rights for this period of time, and must surrender all of their firearms and concealed permits. The court appoints counsel for this person. The court can issue a continuing ERPO.
The ERPO prohibits the respondent from possessing, controlling, purchasing, or receiving a firearm for 364 days. The “respondent” can only petition the court to terminate the ERPO only once within the year period.
MASSACHUSETT’S RED FLAG LAW
Massachusetts’s Extreme Risk Protective Order Resource Guide states 1/5 of all adults have a mental health condition. The guide is mostly an advertisement for state mental health resources.
- Under Massachusetts’s law, “family or household” members who can file a petition include ex-family members, and those who have been in a dating relationship with the respondent.
- Their laws allow for filing an ERPO if “they are a risk to themselves or others” and “weapons,” which includes stun guns. “Weapons” is not defined by the Act.
- Hearings are held within 10 days. If the Respondent doesn’t show up to the hearing, the ERPO is automatic.
- Respondents to ERPO’s in Massachusetts may hire a private attorney, but they are not provided counsel, despite the fact that this is a quasi-criminal complaint, and results in the deprivation of property.
- The State does penalize false reports by fining $2,500 to $5,000.
- ERPO’s can be issued without notice to the respondent, if the court finds “reasonable cause” to conclude the respondent poses a risk of causing bodily harm to their self or others (the same criteria for issuing any order). Under this circumstance, firearms, etc. must be turned in immediately.
Washington’s Red Flag Law
- Any former domestic partner, any former dating relationship, any in-law, or any former legal guardian can file a petition. You can petition for an ERPO because the Respondent “expressed intent to obtain a firearm.”
- You can be subject to the order for a “hate crime,” or “malicious harassment.”
- One hearing to terminate the order during 12 month period.
- Question as to whether a DUI alone constitutes grounds for a ERPO.
- You are not provided an attorney.
- Washington provides Petitioners firearms identification guide for the benefit of filing their report. According to the guide, all semi-automatic rifles are “assault rifles.”
WHY RED FLAG LAWS ARE VERY DANGEROUS
My concerns over Red Flag laws, and why I oppose them, are as follows:
- These laws are passed under the guise of concern for mental health. Their practical effect proves their concern is disingenuous. They don’t intervene and protect a person from committing suicide – they only take one method of suicide away.
- Deprivation of property rights, and fundamental right to own and bear arms, takes place without true due process. Often times, it is done as a quasi criminal proceeding, with civil (and less burdensome) burdens of proof, and without an attorney provided (for the most part).
- Due Process is limited to one hearing per year for Respondents.
- Red Flag laws criminalize and punish pre-crime, or thought crime. Some State’s punish on the basis of hate speech, which is protected under the First Amendment (yet another constitutional violation).
- The Acts reference numerous portions of external code, meaning that by changing one definition, you can intentionally, or accidentally, alter the meaning of the ERPO Acts to cover more people.
- The penalty for filing false reports is mostly perjury, which is never prosecuted (as its own violation). Massachusetts does have stiff penalties for a false report, however.