Federal 'Red Flag' Gun Seizure Bill Moving in Congress
The "Federal Extreme Risk Protection Order Act," allowing for gun seizures in all 50 states on scant due process grounds, squeaked out of a House committee on Wednesday.
The bill, H.R.2377, was introduced by Georgia Democrat Lucy McBath, who came to Congress backed by millions from anti-gun groups funded by Michael Bloomberg. Prior to heading to Capitol Hill, McBath worked as Faith and Outreach Leader for Moms Demand Action for a half-decade. She introduced the bill earlier this year immediately after attending a high-profile public event with gun control advocates and President Joe Biden at a Rose Garden announcement about such red flag laws.
With 114 fellow Dems signed on as co-sponsors, the partisan proposal was marked up this week by the House Judiciary Committee following a seven-hour hearing that ended in a predictable one-sided vote. It can now be taken up by the chamber as a whole, where a further up-vote would send it to the Senate.
The measure would allow police or family members to seek a court order from a federal judge in an ex parte proceeding – without the subject of the order present to defend themselves – to suspend the subject's gun rights for 14 days. The order could later be extended to 180 days. Besides authorizing the seizure of any firearms held by the subject, the ERPO would be entered in the FBI's NICS database used by the Brady Act background check system, barring FFLs from transferring a gun to the subject to an order.
However, those opposed to the process argue that the deck is stacked against gun owners who are the subject of an ERPO, who may have to go into debt to get their constitutionally-protected Second Amendment rights reinstated.
"When faced with legal bills that can easily amount to $10,000 for a hearing and the worst that can happen is their guns will be taken away, few people find that it makes sense to fight Red Flag laws," noted U.S. Rep. Thomas Massie, R-Ky, in an op-ed published against the bill. "Under Red Flag laws, initial firearms confiscations usually require just a 'reasonable suspicion.' Judges will initially confiscate a person’s guns on the basis of a written complaint. When hearings take place weeks or a month later, courts overturn a third of the initial orders. But since few defendants have legal representation, the actual error rate is undoubtedly much higher."
U.S. Rep. Jim Jordan, R-Ohio, blasted the measure due to provisions that it would remove the gun rights of an individual who had not been accused of any crime, and in turn, had no mechanism to return seized firearms at the end of an ERPO.
"By depriving individuals of their property and rights without having been charged, arraigned, or convicted of a crime, this bill violates Constitutional due process rights set out in the Fifth and Fourteenth Amendment," said Jordan.
U.S. Rep. Chip Roy, R-Texas, during the hearing, decried the use of anti-gun laws to disenfranchise large swaths of the population, pointing to the racist roots of gun control in American history. Further, he addressed claims made by Democrats that the bill protects due process rights.
"You have the opportunity to be heard after – after – your rights have been taken away," he said. "That's the key issue here. We are absolutely destroying the bedrock principle that your rights are given to you by God, and that you can't just have to go to the government to ask permission to exercise those rights."
Problems With 'Red Flags'
Described as GVROs, such as in California, or Extreme Risk Protection Orders, ERPOs, at least 12 states, and the District of Columbia have passed some form of red flag law so far. In addition to McBath's bill, Dems 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."