What are “extreme risk protection orders,” also known as red-flag laws, and do they serve the public’s best interest?

A red-flag law permits a judge to rule that an individual can be temporarily denied the right to possess a firearm because they are a danger to themselves or others. The initial order typically lasts for 10-14 days, after which a longer term of up to a year can be imposed. Once the order is in place, law enforcement officials seize all of the subject’s firearms and hold them for the term of the order.

Are such laws sound policy? Take the case of Stephen Nichols, an 84-year-old distinguished Korean War veteran who works as a school crossing guard at an elementary school in California. Nichols was having breakfast with a friend and mentioned that he was concerned by a lack of law enforcement presence and worried that someone would “shoot up the school.”

An eavesdropping waitress called the police because she heard the words “shooting” and “school.” The police arrived at his elementary school crossing guard job, escorted him home and seized his guns. Was there any due process? No. Was he provided with a receipt for the seizure of his lawfully owned property? No. The friend to whom Nichols made the comment stated that Nichols was no threat of any kind. The public outcry was loud and the school relented and let Nichols return to work. The Tilsbury Police Department, as of this writing, has not returned Nichols’ firearms to him. If this could happen to an 84-year-old school crossing guard, it could happen to any one of us.

Such “red-flag laws” reverse the legal standard of “innocent until proven guilty” to “guilty until proven innocent.” Such laws frequently allow confiscation of firearms before gun owners even have a chance to tell their side of the story. With only one side of the story and a person’s liberty on the line, such laws are ripe for abuse.

Most, if not all states, have involuntary commitment laws that allow a court to declare a person a danger to themselves or others. Once the person is involuntarily committed, federal law prohibits them from possessing a firearm.

In Florida, teachers and administrators raised serious concerns about the Parkland school shooter’s potential for violence for more than a year before he massacred innocent students. Under Florida’s Baker Act, he could have been committed by a judge and lost his right to possess a firearm. Yet, the school system ignored the concerns and did not report it to law enforcement.

A legal mechanism should be in place to prohibit truly dangerous individuals from legally obtaining or possessing firearms. However, before enacting red-flag laws, the politicians should honestly answer the following questions:

  • What is the standard for seizing an individual’s firearms?
  • What is the mechanism for them to have their rights restored if an error or unfounded accusation was made?
  • Can the witnesses be cross-examined during their testimony?
  • What is the burden of proof for depriving someone of their constitutional rights?

Truly dangerous individuals should be denied access to firearms, just as they have for years. Before rushing to enact an extreme risk protection order (red-flag law), the above questions should be honestly answered whereby the process is just, the evidence clear, potential abuse minimized and a clear path to restoration of rights established. Our civil rights are too valuable to permit politicians and gun control advocates to violate and forfeit.

Dr. Lovick Thomas, FACR, lives in Santa Fe. 

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(2) comments

Gene Ralno

Red flag laws were created to dilute power licensed to the psychiatric community. These laws transfer power to unqualified persons more obedient to democrats, e.g., local judges and crotchety old aunts. Due process requires reports from two psychiatrists, one from each side, legal representation, arraignment, indictment and trial by jury.

Nobody wants criminals to have firearms but to be taken seriously, if the accused is a danger to himself or others, he should be legally arrested. In other words, take the man but leave the guns. The line of inheritance codified in state laws determines the legal custodian of any property.

Khal Spencer

Dr. Thomas makes some good points. The Nichols story is a good example of a system gone nuts. The Rhode Island ACLU, not exactly a bastion of gun nuts, excoriated their state's first attempt at an ERPO law. SB 5 is better than last years but there are still some serious due process and definition problems to work out and as the Doc said, due process is critical since gun owners under these bills are considered guilty until proved innocent. Especially in ex parte situations.

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