Experts Say Current Red Flag Laws Doing More Harm than Good

October 4, 2019 Updated: October 7, 2019

Red Flag Laws, also known as Extreme Risk Protection Orders (ERPO), are being adopted by more states to prevent mentally disturbed individuals from gaining access to firearms. Those who have in-depth knowledge of these laws are concerned instead, that they hurt civil liberties more than curbing gun violence.

The increase in ERPO laws is a response from lawmakers to gun violence, particularly the horrific and frequently occurring mass shootings across the nation.

A makeshift memorial with crosses for the victims of the Sandy Hook Elementary School shooting massacre stands outside a home in Newtown, Conn., on the one-year anniversary of the shootings on Dec. 14, 2013. (Robert F. Bukaty/AP/File)

ERPO’s were first adopted by Connecticut in 1999.  Indiana followed in 2005, California in 2014, Washington in 2016, and Oregon in 2017.  In 2018 nine other states passed Red Flag laws, and in 2019 so far, three states passed these laws, including Colorado.

Colorado’s recent ERPO’s bill states law enforcement or a family member can petition a court to request the ability to promptly take a person’s guns because they consider the person mentally unfit. On a judge signing the order, the weapons can be taken away, but the court must hold a hearing within 14 days to determine whether to extend the seizure for up to 346 days and stop the person from purchasing more firearms. The entire proceeding is a civil, not criminal matter.

In March, President Trump’s Administration advised states to enact ERPO’s and directed the Department of Justice to provide technical assistance to states—at their request.

“While Republicans and Democrats—on this Committee and across America—can disagree on the Second Amendment, what’s clear to me is that recent tragedies in the United States are examples of a common problem—a failure to identify and lessen risk from individuals who may be showing signs of distress and the willingness to hurt themselves or others,” Senator Lindsey Graham Chairman, Senate Judiciary Committee said in a hearing entitled “Red Flag Laws: Examining Guidelines for State Action”

Lindsey graham
Sen. Lindsey Graham (R-SC) talks to reporters during a news conference at the U.S. Capitol Nov. 1, 2017 in Washington. (Chip Somodevilla/Getty Images)

Colorado’s ERPO bill was signed by Governor Jared Polis on April 12, 2019.  It will become law on January 1, 2020.

Meanwhile, the specifics of this bill have law enforcement and citizens in Colorado and elsewhere concerned about their constitutional rights and may provide an opportunity for other states to learn from in drawing up their ERPO law.

There are concerns that the impending law will compromise citizen’s 4th, 5th, 6th, 1st, 2nd and 16th Amendment rights.

Second Amendment supporters
Second Amendment supporters gathered across the street from the Colorado State Capital to voice their support for gun ownership in Denver, Colo. on Jan. 9, 2013. (Marc Piscotty/Getty Images)

Looking at Colorado’s ERPO bill in more depth, we see that the petitioner (the person who initially makes the complaint and files the petition) only needs to loosely be a “family” member of the accused and in some cases, can file by phone or even anonymously. In the other case, it would be a law enforcement official who does not know the person that well and is making an uneducated mental health assessment.

The petitioner does not have to be present at the hearing and can provide just a “preponderance” of evidence. “Preponderance is the lowest evidentiary threshold used in the court system.” The court is looking for a recent or credible threat of violence. That could include a wide array of past violations or crimes as evidence, even if they did not include a gun, to issue an ERPO.

If the judge finds the accused a risk and signs the order, the police are required to serve the warrant for an “involuntary commitment hold.” The person’s guns are confiscated, and their information entered into a state and federal database.

“While the idea for these laws is reasonable, some statutes are not. They destroy due process of law; endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm the innocent victims.” wrote David B. Kopel, Research Director of Independence Institute, in Colorado in a testimony given at the “Red Flag Laws: Examining Guidelines for State Action” hearing in March, 2019.

Hidden deeper in Colorado’s bill is the creation of a new type of search warrant in the state that would be specific to gun owners only: a civil search warrant, which is unique since these are mostly used in criminal cases, not civil.

Any person with an ERPO against them who gets possession, purchases, or receives a firearm is guilty of a class 2 misdemeanor. Meanwhile, there are no penalties for false reports/false accusers.

The Accused Mental Health Not Being Effectively Addressed

There is no mental health component to the red flag bill of Colorado, although they say it will help prevent suicides. In some scenarios, the bill requires police to enter the home of a suicidal individual who owns firearms (forcibly if necessary) and confiscate firearms.

“The claims that Colorado’s “Red Flag” ERPO law will help those in a suicidal crisis is disingenuous at best and dangerous at worst,” wrote Lesley Hollywood who is the founder and executive director of Rally for our Rights.

“Therefore, a person could have guns removed yet not be considered dangerous enough for a mental health hold. If we are being asked to infringe on a person’s right of gun ownership, and the danger declared is imminent, then shouldn’t a mental health evaluation be the first course of action? Yet, it requires the defendant to prove their sanity in order to retrieve their property, which would require a mental health evaluation. Yet, few, if any, behavioral health services are available. The Red Flag law, as written, is presumptuous, extreme, and backward,” said Sheriff, James van Beek of Eagle County, Colorado.

Counties opposed to red flag law, (screenshot via CNN)

Kendra Parris is an attorney working with those who have ERPO’s brought against them and writes extensively on Florida’s red flag laws.

In an article called, “Cops in Lab Coats”, Parris writes about the challenges of law enforcement officials’ requirement to make mental health assessments with little to no professional training in the area of involuntary mental health examinations.

“To initiate a Baker Act—that is, to take someone into a psychiatric hospital for involuntary mental health examination—a cop is required to determine whether the subject ‘appears to have a mental illness.’” Then the psychiatrist decides if the accused should be held for involuntary treatment. “The psychiatrist acts to lock the patient up, to strip him of his right of liberty,” Parris writes.

“And so you can see the way we have already fostered a legal system in which cops act as psychiatrists and psychiatrists act as cops, despite that neither is trained or competent in the other’s role.”

Colorado Law Enforcement Declare Second Amendment Sanctuary Counties

As of mid-July, over half of Colorado counties had declared themselves as Second Amendment Sanctuary Counties.  Also, both the Denver and Aurora Police Unions expressed their opposition to the red flag bill in a press release.

“Its purpose is to identify potential dangers and neutralize them by removing weapons from those whose behavior may appear erratic and possibly dangerous. While on the surface it seems to be a great idea, like everything else that is complex, the devil is in the details, and these details are constitutionally troublesome,” Beek said.

Mesa County Sheriff, Matt Lewis is also opposed to these laws because they trample on civil liberties. Lewis wrote in his statement that he has been working against this bill since the beginning.

”It requires law enforcement to seize or a citizen to surrender their personal property BEFORE there is a finding greater than the low legal standard of a preponderance of evidence. It also requires a higher legal standard of clear and convincing evidence in order to restore the right to possess firearms. This process is ripe for abuse and does not set the legal bar high enough for government intrusion, seizure of a person’s personal property, and the infringement of a person’s 2nd Amendment Right.”

“This bill does not make law enforcement professionals or our Colorado citizens safer, and I will continue to work to find an alternate solution to assist those in crisis without targeting firearms. …”

Retired NASA astronaut and Navy Capt. Mark Kelly (L) (2nd L-R) Denver University Professor David Kopel, Independent Women’s Forum Senior Fellow Gayle Trotter and National Rifle Association Executive Vice President and Chief Executive Officer Wayne LaPierre during a Senate Judiciary Committee hearing about gun control on Capitol Hill January 30, 2013, in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Kopel thinks that even though no state’s red flag laws “have sufficient due process,” a better serving law can be written by incorporating best practices from various states.

The state gun confiscation laws enacted in recent years have all been written by gun prohibition lobbies, and are atrocious assaults on due process. The bill recently passed in the U.S. House Judiciary Committee would provide a federal taxpayer subsidy to the states with the worst practices,” Kopel said in an emailed response.

“I do think that it is possible to write a red flag law that scrupulously protects due process. I would favor such a law in order to reduce mass shootings. Senate Judiciary Chairman Lindsey Graham has been working on the draft of a bill that I might be able to support,” continued Kopel.