“Red Flag” laws are state laws that allow and authorize courts to issue a type of protection Order to allow some law enforcement or police departments to temporarily confiscate firearms and/or ammunition from people who are determined by a judge, law enforcement, or certain official to be a danger to themselves or to others. Courts may also bar the person from purchasing guns and ammunition. And the gun ban and confiscation remain in place until an initial court Hearing (time requirements vary) and possibly a Final Hearing (which varies by state) up to several months later. Since these Red Flag proceedings are civil in nature, individuals are not eligible for assistance from public defense lawyers, and almost all are not represented by counsel. It is critical to recognize that Red Flag laws, their requirements, timelines, and processes vary significantly among all U.S. states. And in most of the few cases this author has read, he learned that they largely result in an Order against the defendant.
Wikipedia says that according to a 2018 American Psychiatric Association report, “Red Flag” laws are designed “to address crisis situations in which there is an acute concern about an individual’s access to firearms.” Often the request for this order comes from relatives, ex-spouses, those with a grudge against the individual, or meaningful friends concerned about a loved one who owns a gun and/or has expressed suicidal thoughts. But, the provisions of these laws vary significantly among states.
Red Flag Law Example: Florida Case, August 2021: Firearms and Ammo Seized
Many of the Red Flag cases assume that persons named in an Order are dangerous and should have their rights and property stripped, without notice or an opportunity to respond until after the fact.
POINT: Balancing the concerns for helping someone with a mental health issue, suicidal tendency, or dangerous behavior versus protecting our universal Second Amendment and Due Process Rights is a supersensitive, precarious, and demanding, but very necessary challenge.
A case in point. The Lakeland, FL police department petitioned for a Red Flag Risk Protection Order through the Florida Statute 790.401(3)(a) and (b), in May 2020. Under the Order, a man I will call “E.P.” (identity protected because it is an active case) was taken into custody and his firearms and ammunition were seized.
His Hearing on the Order was scheduled for June 12, 2020 “in the court facility located at 255 N. Broadway Ave., Bartow, FL.” This date and time were confirmed on June 3, 2020, by the police department’s attorney, and again in a court notice issued before June 12. So, E.P. arrived at the appointed date and place at 1:30 pm and waited until 3:00 pm. He testified that “he was not let into the courtroom, nor was he aware that the Hearing would take place virtually or how to attend.” The Hearing was held at a remote video conferencing event, without notice of this change to E.P.
At that hearing, the court determined, incorrectly, that E.P. had “elected not to attend” and entered a Red Flag Protection Order against him. He was prohibited from having custody or control of, or purchasing, possessing, receiving, or attempting to purchase or receive, a firearm or ammunition for up to a year, and was required to surrender any and all guns or ammo not already in the custody of the police to law enforcement. E.P. appealed the Order on the basis that it was made without giving him the chance to appear or a notice that the proceedings would take place by means other than those designated in court documents. This non-legal layman understands that a Notice of Hearing must be issued by the court, received, and followed by involved parties about the specifics given.
From May of 2020, the Order was in effect, and not until August 13, 2021, was the Order invalidated. The Appellate Court ruled that E.P.’s Due Process rights were violated by the failure to notify him that the Final Hearing would take place virtually instead of in the court facility listed in the Order. His right to be heard was deprived and the Order was reversed in his favor. I also recognize that his Second Amendment rights were violated.
Note that E.P. spent much time and money to correct the mistakes made by the government court system and to restore his inalienable rights to his guns, ammo, and property… his Second Amendment and Due Process Rights.
Red Flag Laws, Protection Orders, and Specific Provisions Vary Significantly
The Red Flag laws vary substantially among their terms and are indeterminate among several states, including:
- who can initiate or request the protection order process;
- what mandatory factors must be considered for removal of firearms and/or ammunition;
- who approves the protection order for removal;
- whether or not a warrant is required to enter and/or to serve the protection order;
- who can request the gun removal process;
- who conducts the actual gun removal process;
- what guns and ammunition may be removed;
- what must be proven in court;
- what timeline, if any, there is for the various steps of the related processes;
- must there be referrals to mental health, domestic violence, and/or counseling resources;
- how long the firearms and ammunition restrictions are imposed;
- how long of an extension is allowed for guns to be taken away;
- how and when are court hearings authorized;
- how long until the individual’s rights are restored; and
- what process is used before an individual’s gun rights are restored and before access to the seized property is restored.
Brief Red Flag Law History
Generally, emphasis on a Red Flag law is a response to the shooting at Marjorie Stoneman Douglass High School in Parkland, FL near Fort Lauderdale where 17 students were killed and many injured. The 19-year-old shooter had a record of threatening behavior and fired an AR-15 style rifle into students and staff members. This 4-minute shooting spree was the deadliest shooting in U.S. high school history. Five states had some form of a Red Flag law before the Parkland shooting, but several enacted them after it occurred.
2021 Red Flag Law U.S. Supreme Court Case
The U.S. Supreme Court ruled in May 2021 on the Caniglia v. Strom case, which involved a man arguing with his wife. She called the police and said he was acting erratically and making suicidal statements, so they entered his home and seized his firearms without a warrant. Although the District Court granted summary judgment to the police, The Supreme Court unanimously determined the seizure was a violation of the Fourth Amendment. Holding that a person has a right to retreat into his home and to be “free from unreasonable governmental intrusion.” The Court acknowledged that the case implicates Red Flag laws and that provisions of the laws may be challenged under the Fourth Amendment. See Florida v. Jardines, 569 U.S. 1,6 for details.
The Red Flag Law Issue
Critics of the law say that it violates the U.S. Constitution and Florida’s (and other states’) Constitution, primarily the rights to bear arms and for “due process.”
TIP: As a non-legal layman, I understand that a key feature of most of the Red Flag laws is that the initial Order that is imposed gives NO NOTICE to the affected individual and that they have no opportunity to attend the initial actions and to contest the allegations. Research this and be aware.
Some also say it discriminates against the poor who cannot afford legal counsel since the Order is not considered a criminal proceeding and thus there is no appointed counsel. The U.S. Supreme Court’s case decision in the above Caniglia case adds other considerations to the issue. Supporters of gun control claim it helps to remove firearms from individuals making threats or suffering from mental breakdowns. However, there are many open-end decisions and confusing steps and requirements in the components of the law and its implementation and administration.
TIP: Without any doubt whatsoever, this legal layman recommends getting an attorney with knowledge in Red Flag Protection Orders and this process in your state to avoid prison time, deleterious entries on your record, inconveniences, delayed required actions, and costly mistakes.
An Example: Florida’s Red Flag Law
As an example in my state of Florida, this law is codified in Section 790.401 of the Florida Statutes. The first step of the process in Florida generally proceeds after a safety issue is raised and a law enforcement officer or some law enforcement agency files a Petition for a Risk Protection Order.
From my non-legal layman’s understanding, there must be an allegation that the individual poses a significant danger of causing personal injury to him/herself or others by having a firearm or ammunition in their custody or control or by purchasing, possessing, or receiving a firearm or ammunition. But, I understand further that it must be accompanied by a formal, detailed affidavit made under oath stating the specific statements, actions, or facts that pose a reasonable fear of “significant dangerous acts” by the individual. And it must identify the types, numbers, and locations of all firearms and ammunition the petitioner (often the police I understand) believes to be in the individual’s current ownership, possession, custody, or control. The statute requires law enforcement to make a “good faith effort” (whatever that means) notice to provide family members or third parties at risk of violence and that they are seeking a Risk Protection Order. I understand per the Florida law, the notice MUST include referrals to mental health, domestic violence, and counseling resources. And further, this non-legal layman understands that a Hearing where specific testimony and evidence (e.g mental health or illness or previous violent crime proof) is provided must be held within fourteen days… but this happens AFTER the firearms and/or ammunition are seized… and not before seizure. And there is a Final Hearing, usually several months or longer after the first Hearing for a final determination. The Court decides if a Risk Protection Order is issued and it is issued for up to 12 months for seizures, with extensions usually possible after another Hearing. Another somewhat hidden part of the law I very generally understand allows a temporary Order BEFORE a Hearing, WITHOUT notice to the individual. To this non-legal trained neophyte, this seems to be a shaky due-rights violation that might happen. So, research the details of this for yourself.
Some Interesting Requirements of a Red Flag Risk Protection Order
In Florida, I discovered once the individual’s weapons and/or ammo are surrendered to law enforcement, the individual must be given a Receipt detailing what was seized. Interestingly in Florida, an individual has an option to turn over their weapons and ammo to a third party. However, this legal layman understands three steps must be taken.
- The third party must go through a Background Check and be eligible to own or possess the weapons and ammo under federal and state laws;
- The third party must keep the weapons and ammo out of the individual’s access and control; and
- The third party must not transfer the weapons and firearms back to the individual until the Order is vacated or withdrawn.
I generally understand that an individual who violates any term of the Red Flag Risk Protection Order faces a third-degree FELONY, punishable by up to five years in prison and a fine of up to $5,000. So, be careful out there.
States with Red Flag Laws
Initially, after the first Red Flag law was enacted in Connecticut in 1999, a few states followed with their laws. Now in early 2022 according to Wikipedia, there are 19 states and the District of Columbia who have enacted these laws. The Red Flag laws in these states vary considerably. Some of the states with Red Flag laws now are California, New York, New Jersey, Massachusetts, Maryland, Colorado, Illinois, Nevada, Washington, Hawaii, Oregon, Virginia, and Florida. In 2021 President Biden announced that he would create “model” Red Flag legislation for states to pass. This will prove to be a herculean challenging task, given the serious public debate, disagreements, and the many facets of this law.
“Red Flag” laws are state laws that allow and authorize courts to issue a type of Protection Order to allow some law enforcement or police departments to temporarily confiscate firearms and/or ammunition from people. Generally, they are designed to address crisis situations about an individual’s access to firearms. Often the request for this Order comes from relatives, ex-spouses, those with a grudge against the individual, or meaningful friends concerned about a loved one who owns a gun and/or has expressed suicidal thoughts. Many of the Red Flag cases assume that persons named in an Order are dangerous and should have their rights and property stripped, without notice or an opportunity to respond until after the fact. This may not be the case. Red Flag laws do vary significantly among the U.S. states and different interpretations have been and are being made by courts, some to the detriment of those with guns. A Florida case where a mistake was made is presented here. It is important to know if your state has a Red Flag law, what its details include, and its specific provisions.
Continued Success and Be Safe!
* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense, and concealed carry. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.
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