May 1, 2023
Guest Perspective by Richard Moore
Suddenly, someone is beating the drum for red flag laws again, trying to resurrect mostly failed efforts in the various states to get them enacted.
Red flag laws allow law enforcement, ungrateful family members, jilted lovers, angry neighbors, and anybody else who doesn’t like you to turn you in to the police as a nut with a gun who is anytime now going to shoot up some things, after which the government holds forth in a kangaroo court and sends police officers to search your house and seize your guns, even when you don’t have any.
Embarrassing, I know.
Supporters of red flag laws don’t quite say it that way. They are more likely to define them as a “legal process” by which somber and sober community stakeholders—family members, law enforcement, health care providers, school officials—reasonably believe you are an imminent threat to yourself or someone else, and “petition” a court to temporarily prevent you from possessing or accessing firearms.
This thing just screams community policing.
There are 19 or 20 states—depending on if Michigan counts as a state or simply Gretchen Whitmer’s holy land—with red flag laws. But efforts in the other 30 states have faltered. Not only have they faltered, but most of those states took federal money designed to make sure those efforts didn’t falter, and apparently some people are mad about that.
OK, I confess, I know who is angry. It’s the media! Surprise!
Specifically, Lee Enterprises’ “public journalism” team has published a long and winding story about this. The gist was—and you can just sense the angry bird tone in the story’s words—various states took millions of dollars in federal money to enact red-flag laws, but then pocketed the dough and didn’t pass the laws. Actually, it was hundreds of millions of dollars, but who’s counting. For some reason, federal bureaucrats, and Lee Enterprises reporters, are not amused by this.
Now I will give the reporters some credit. That is—or could have been—a good story. According to the piece, there’s something called the Bipartisan Safer Communities Act (of course there is!) that doled out millions of dollars to states to pass red-flag laws. Those thirty states then stiffed the federal government.
Well that certainly is something the American public needs to know about. As much as I hate red-flag laws, one wonders why Congress wouldn’t have conditioned the money on being spent for its intended purpose, given they were essentially trying to bribe state legislatures.
Oh wait. We do know why the money wasn’t tied to the actual passage of legislation. According to the Lee Enterprises’ story, Republicans insisted, in exchange for their support, that it didn’t have to be spent exactly that way, as long as the spending was related by some stretch of the imagination to gun safety, like supporting absolutely useless safe gun storage programs.
In other words, if I may be allowed to translate, Democrats hatched an illegal bribery attempt, Republicans agreed to join in but managed to water it down from unconstitutional gun confiscation to just massively wasteful government spending, and Democrats went along with that because, well, spending.
That’s how the swamp works. It’s worth reporting, to be sure, but it’s hardly breaking news.
All this was contained in the Lee Enterprises “public journalism” story, as was the fact that states had to apply for the funds and were very matter of fact about having no intention to use the money the way Congress intended. The government then gave them the money anyway, and, as the late great Robert Palmer sang, ain’t no telling where the money went.
OK, so far, so good. But from there the story goes off the rails. Sadly, it never crashed into anything but just kept on going and going… and going… mostly to sing praise for red flag laws and about how popular they are. The reporters cited a Marquette Law School poll showing that 81 percent of respondents in a survey support such laws, never mind that people are going to answer that way when asked a generic question about whether people deemed by a court to be dangerous should have their guns temporarily taken away.
And why not? The reporters tell us that “[a]dvocates say the policy could help prevent a further uptick in gun violence deaths nationwide.” They quote an official from the pro-gun control Gifford Law Center that such laws are “common sense mechanisms.” Of course they don’t tell us that’s an extreme anti-gun rights group. In the story, it just “works with states and local governments to draft and implement gun safety legislation.”
Oh, and there is a quote from the even more extreme anti-gun rights group Everytown for Gun Safety, found by former New York mayor and gun-confiscation enthusiast Michael Bloomberg. And from Texas Gun Sense. And, when red-flag laws don’t work, the reporters inform us, they weren’t “effectively implemented” or “experts” said there were failures to “fully communicate.” Still, we are told, “proponents see them as effective tools that can prevent further carnage.”
You have to love the use of the word ‘carnage.’
The reporters go on to tell us that Republicans “who once supported red-flag laws now oppose them.” Why? Well, you know, “NRA lobbying.”
Finally, our intrepid reporters got to the other side of things. They quoted Mark Oliva, a public affairs guy with the National Shooting Sports Federation, who said there were “serious concerns about these red-flag orders being abused and people being wrongfully deprived of their rights.” But then they knocked down that argument with another quote from Everytown for Gun Safety, whose spokesperson said that all of the red flag laws enacted thus far have due process built into them: “If there’s no merit to the petition, a judge is going to throw it out.”
And that leads to more quotes from gun safety advocates who say the law has already saved lives. So, surely now this story will get to the detailed reasons people object to these laws, so let’s turn the page and read the rest of the story from Lee.
Wait, where is the rest of the story?! It’s missing!
Now I’m not really expecting a check from Lee Enterprises for this, but I feel compelled to help these reporters finish their story since it appears to have not to have been written. The thing is, they really didn’t dig into the arguments against red-flag laws, though I am sure they would have gotten around to it had they not run up against deadlines. I know how it is! So let me help out.
For starters, let’s look at some real-world, um, adventures after red-flag laws were passed. As Reason reported, down in Florida, a college student mouthed off on Reddit against gun control but never made a threat, did not have a criminal history, and did not own a firearm. What he did was make some repellent and obnoxious statements, like “You guys are too weak to be a school shooter”; “Maybe for now but not forever”; and “RIP Paddock my hero,” the latter a reference to Las Vegas mass shooter Stephen Paddock.
Hoo boy, what an unfortunate shout out. In reality, the kid was trying to push some buttons online, but it ended up with the state pushing his buttons, forcing him to undergo a psychiatric evaluation under the state’s red flag law. The police had marched into court alleging “there is evidence that the respondent is seriously mentally ill”; “respondent has committed a recent act or threat of violence”; and ”the respondent has used or threatened to use any weapons against him or herself or others.”
All of those allegations were lies, and finally in court he was cleared. But not before a search of his house, his father surrendering the father’s firearm, and the ramifications continued, with the college demanding yet another psych evaluation before he could return to college.
And all of this played out in the newspapers—you know, newspapers like the ones writing about how great red-flag laws are. Or, as Kendra Parris, the student’s attorney said: “My client was tried, convicted, and crucified by the media before we could set the record straight.”
Up the coast in New Jersey, a man who wasn’t real happy with his doctor called the doctor and demanded that the doctor see him because, it seems, the doctor had decided to sue him for leaving negative reviews online. If the doctor wouldn’t see him, the patient proceeded to threaten to “bring the police and media” to force the doctor to see him, adding that he knew where he lived.
Hoo boy, what an unfortunate thing to write, that you know where they live! In the real world, the doctor should have been more afraid that he actually would bring the police and the media, given their inclinations to dishonorable intentions, but instead he was afraid of the caller so off to court he went for an extreme risk protection order, never mind that there was never any threat of violence.
The state confiscated his guns.
Now I could go on with anecdotal evidence about unconstitutional and dystopian “pre-crime” adjudgments—deciding someone is going to commit a crime before they do, like in ‘Minority Report’—but clearly the state is intervening and violating not only the Second Amendment but the Fourth and 14th Amendments though secret courts and illegal searches, and doing it on a wide scale.
In the first nine months after Florida’s red flag law was enacted, judges issued more than 1,000 gun seizure orders. Does anyone believe that anywhere near that number posed an actual imminent threat? Almost certainly the state was confiscating guns from law-abiding citizens. These laws shatter the constitutional presumption of innocence.
Then there’s due process. The red-flag process varies a bit state by state, but basically it begins when a law enforcement official, family member, or household member files the petition.
Enter a judge. A lone wolf sitting in judgment of you. And he doesn’t have to decide you’re dangerous beyond a reasonable doubt, just on the “preponderance of the evidence,” or on “clear and convincing evidence.” Please note that in almost all circumstances the accused’s mental health is being challenged, and yet these laws do not require the consultation of mental health professionals before an order is issued.
It might be worth it to point out, too, that, in some instances, you won’t even be there to face your accuser, or know the hearing is going on. You’ll find that out when law enforcement shows up with a search warrant to look for and seize your guns.
Once that happens, there will be a quick hearing where you would be present. But in that case your weapons have been seized. And even when you are present at the initial hearing, if the judge rules against you—and they do any anywhere between 64 and 95 percent of the time, depending upon where you are—law enforcement will seize your weapons, even though you have not been found guilty of a crime, or even charged with one.
Bear in mind, too, that because the court hearing is a civil proceeding, the accused is not entitled to free legal representation or a public defender, so the poor are on their own. All this is akin to civil asset forfeiture, where law enforcement can seize your property—cars, cash, even homes—if they believe a crime has been committed involving that property, whether you are the person charged or convicted or not, and even before it’s proven a crime was actually committed.
Hell, with red-flag laws, the petitioner doesn’t even have to prove that you threatened someone. If the judge thinks it is reasonable that you could have, bye, bye weapons.
Back in 2018, the Rhode Island ACLU pointed out that, in most red-flag laws:
[T]he standard for seeking and issuing an order is so broad it could routinely be used against people who engage in ‘overblown political rhetoric’ on social media or against alleged gang members when police want to find a shortcut to seize lawfully-owned weapons from them.
The expansion of police power comes quite naturally, the ACLU observed:
These are hardly far-fetched scenarios. If there is anything we have learned over the decades, it is that law enforcement-related legislation enacted to address specific and serious crimes often is expanded for uses well beyond the initial intent. After all, who would have acknowledged that a law specifically aimed at mobsters—the Racketeer Influenced and Corrupt Organizations Act— would one day be used to go after anti-abortion protesters? Who would have predicted that expanded ‘civil asset forfeiture’ laws—initially aimed at major drug dealers—would one day be so routinely used against innocent parties to take houses, cars, money and other property away without any criminal charges, much less criminal convictions, involved?
If a red-flag order is issued, the firearms are typically taken away for a year, but the judge can extend that for a year. What’s more, the person against whom the order is directed typically can only petition the court once during that year for removal of the order.
And guess what, you can’t appeal it to a higher court. The judge you get is the judge you keep. This ain’t divorce court.
Now let’s a take a look at a proposed law in Wisconsin several years back that thankfully did not pass. The bill was authored by far-left (OK, I have no clue how “far left” differs from just “left” but the right uses “far right” so I’ll just run with it), Sen. Lena Taylor of Milwaukee, and the usual Democratic nutcases in the state legislature.
Let’s look at the devil in that bill’s details, shall we?
So, under that bill, the initial petition could have been filed by a law enforcement officer or a family or household member. Which begs the question, what is a family or household member? Well, according to the legislation, that would be a person related by blood, adoption, or marriage. OK, so far, so good.
But then there is this doozy. Turns out, a family or household member could also be “a person with whom the respondent has or had a dating relationship,” defined as “an intimate or romantic relationship.”
In other words, a former lover, who could also be a scorned former lover itching for revenge, would have been eligible under the bill to petition the court to seize a person’s firearms, without any actual threat against that person. Remember that, in Wisconsin, it is already a felony to threaten someone, so the red-flag law goes well beyond that to allow former intimate partners to petition the court based only on some belief that the person will do something the person has never said they would do.
Advocates of red flag laws often compare them to current restraining orders, but in those cases the petitioner must submit evidence that the subject of the petition has engaged in, or based on prior conduct, may engage in domestic abuse of the petitioner, or that the respondent engaged in or threatened to engage in the abuse, financial exploitation, neglect, harassment, or stalking of an individual at risk.
With red flag laws, actual conduct, present or prior, does not have to be considered nor does an actual threat have to be made. All the petitioner has to do is to convince a judge that the respondent is “substantially likely to injure the respondent or another person if the respondent possesses a firearm.”
There are other unsettling aspects of red flag laws. The first is, under these orders, guns might be seized, but the dangerous person is still free to roam about. How’s that for an inconsistency? If said person is dangerous, then what is to prevent that person, now bereft of guns, from building a bomb, or engaging in a knife or poison attack, or mowing people down with a mini-van?
The law’s intent is bogus, obviously. The intent is not to prevent “carnage,” as my fellow reporters put it, but to confiscate guns.
And, finally, with law enforcement able to file petitions on their own, this opens to door to political persecution, and even to racial discrimination. Blacks and other minorities are more often profiled and charged with crimes than other populations, and there’s no reason to think police would behave any differently with this capability in their hands.
It’s another tool in the toolbox to target certain populations, be it minorities or political dissidents.
I would acknowledge there is one middle ground. In Wisconsin and in some other states, it is against the law to threaten someone. It is also against the law to threaten to bomb a school. Simply tweak those felonies to make it a crime to make actual threats of violence, whether they are directed specifically or to the general population.
The legitimate justification to act lies not in people assuming what someone means when they rant online, but in the actual conduct they engage in, meaning the making of an actual threat. That does not require subjectivity.
Either a person threatens to engage in violence, with words or through actual conduct, or they don’t. Otherwise we shouldn’t be sitting around deciding who is going to commit a crime based on hunches and personal beliefs and layperson mental health diagnoses. There needs to be an actual threat, or actual evidence a crime is being planned, or it’s none of our business.
Otherwise we are all living in a version of Minority Report.