By the Firearms Policy Coalition
In the era of “just do something” public policy, legislators on both sides of the aisle are pitching red flag legislation as a moderate form of gun control; one having a positive impact on mental health reform while simultaneously keeping Americans safe. Nothing could be further from the truth, and what these politicians won’t tell you is that their position is unsupported by evidence and riddled with far-reaching, unconstitutional implications for everyone.
How Red Flag Laws Work
So what happens when someone is subjected to a red flag seizure? Any of a number of acquaintances – a family member, teacher, roommate, or even a co-worker or former co-worker, can file a petition with the court to have an individual’s rights stripped from them.
This means that people with a merely tangential relationship to a respondent can file a petition, and because most red flag laws have no measures to deter malicious filing, they leave the door open for malicious people to bring forth unsupported accusations.
When the petition is filed, an initial hearing is typically held without the subject person present, so he is completely unable to defend himself. The standard of proof is substantially lower here than what would be required had an actual crime occurred, and as such it’s incredibly easy for the order to attach with little to no evidence.
The Danger of Gun Confiscation Orders
Once a seizure order is issued by the closed court, state-sanctioned “swatting” occurs. The police can show up unannounced at the person’s door, potentially catching him off-guard. This is a recipe for catastrophe, because the police can be mistaken for intruders.
Even if the police identify themselves during a seizure, a combination of insufficient training and heightened anxiety still puts human life in unnecessary peril; red flag laws have already resulted in at least one confirmed death when a surprised homeowner answered the door and was shot by police during a brief argument.
Assuming the police are successful in safely executing the seizure order, not only do they take the respondent’s firearms, ammunition, and magazines, several states also revoke the subject person’s concealed carry license, which can be costly and time-consuming to replace or reinstate. Following the initial seizure, the order remains standing for two to three weeks unless a final hearing is held.
No Right to an Attorney
Unlike in a criminal trial, the subject person has no right to legal representation during final hearings, which often means spending thousands of dollars in legal fees if they want a competent defense. Even if a person is innocent and goes deep out of pocket for a lawyer, they might still lose their rights.
Standard of Evidence
The evidentiary standard for a final hearing is even lower than the initial hearing – “preponderance of the evidence” – which means the difference between the state keeping or returning the respondent’s firearms is essentially a coin toss. If the person loses, the state may keep his property for up to a year, and in New Jersey, indefinitely unless a court terminates the order at a later date.
Red flag laws raise several red flags of their own: they victimize the poor, deny due process, and allow the state to seize property for a substantial amount of time when a crime hasn’t even occurred, leaving people defenseless in their own homes.
Legislators can’t prove they are effective in deterring violence, and they ironically amplify the stigma against people with mental health issues. Not only are these laws ineffective, they may even deter people from seeking the help that they desperately need, creating the threat politicians claimed to be addressing.