A 2016 California "pre-crime" law designed to allow the seizure of firearms from an otherwise legal gun owner who is thought to pose a “significant danger” is being used in record amounts. 

The first year that the state's Gun Violence Restraining Order was in use, just 85 were sought issued. Last year, that ballooned to 1,285, a record. While the GVRO initially was just designed to be used by family members and the police, a 2019 expansion that took effect last year now allows educators, employers, and even co-workers to seek an order as well. 

"I’m glad that Californians have a tool to intervene to save lives and prevent tragedies,” said Assemblymember Phil Ting, D-San Francisco, author of the recent expansion. 

California's GVRO law allows for an immediate firearms seizure for a duration of 21 days, which can be extended to one year with a court hearing or for a post-hearing seizure lasting up to five years. It also allows controversial ex-parte hearings, where the subject of the order is not present and only finds out about the order when the police knock on their door. 
While increasingly becoming the law of the land in blue states, red flag bills are often pitched to lawmakers as a tool to be used by police in uncommon circumstances when other tactics won’t fit. However, data from California and other places the laws have been passed show that they are increasingly becoming the routine mechanism of choice to impound firearms from gun owners put in the spotlight. For example, in Florida, where a seizure law was adopted in 2018, the law “has been applied more than 3,500 times,” the AP reports, noting that the pace of orders issued is “accelerating.”

Problems with red flag laws

Described as GVROs, such as in California, or Extreme Risk Protection Orders, ERPOs, 19 states and the District of Columbia have passed some form of red flag law so far. Democrats from the White House to Congress are pushing for more states to do the same, backed with the carrot of federal dollars. 

Pro-gun groups have stumped against such laws for years. Such organizations argue red flag orders have little impact on crime and instead force individuals to surrender legal firearms to law enforcement based on often uncorroborated statements. That then puts those gun owners into an expensive uphill fight to get their rights restored.

They also criticize the trend as a move to go after guns rather than potentially dangerous people, as the orders typically have no mandate for mental health evaluation tied to them.

“If you send police to confiscate someone’s firearms because he is considered to be a threat to himself or someone else,” Alan Gottlieb, founder of the Second Amendment Foundation, told Guns.com previously, “but you leave that individual essentially on the loose, what’s to prevent that person from committing mayhem with a car or some other weapon?"

Gottlieb also contends that the orders could be used maliciously, saying, “Nobody should be subjected to such legal abuse, essentially being considered guilty until they prove themselves innocent, and in the meantime having their Second Amendment rights suspended or revoked.”

In Colorado in 2019, the mother of a man killed in an officer-involved shooting that was later deemed justified filed a red flag law order against the officer who was involved in the incident. While the order was unsuccessful and the woman was later charged with perjury, her case has been repeatedly delayed by the court despite its high profile. 

Even the ACLU, not traditionally known as a great defender of gun rights, has gone on record numerous times in the past saying that red flag laws pose "a significant threat to civil liberties" as ex-parte orders can be issued before gun owners have a chance to make their case. The group has also questioned, "the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.”

Legal scholars point out that, as judges are only hearing one side of the case and being forced to rule on an order based on a slim standard of evidence, error rates on red flag law seizures are high. For example, they were pushing 31 percent in Connecticut and 29 percent in Indiana.

Further, when trying to mount a legal effort to get their Second Amendment rights out of limbo, recipients of such orders suddenly have to find a lawyer and pay often prohibitively expensive legal fees. They face that challenge with no notice about having been charged with any sort of crime. While a layperson would think such a thing is a violation of the Fourth Amendment’s ban on warrantless searches and seizures, red flag laws seem to shrug off those concerns. 

Worse, forced interactions with armed police against someone already perceived to be under stress can be deadly. In 2018, law enforcement officers in Maryland fatally shot a 61-year-old man while attempting to serve a red flag order at 5 a.m. The man's family said afterward, "he wasn’t dangerous just strongly opinionated."

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