Red Flag Law Harmful to More Than Just the Second Amendment

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FOR IMMEDIATE RELEASE 3/19/19

Red Flag Law Harmful to More Than Just the Second Amendment by Jay Stooksberry

The gun control debate is fired up in Colorado again. Both sides are heated over House Bill 1177 (also referred to as the “red flag law”), which codifies the use of extreme risk protection orders (ERPO).

Even if you don’t identify with either side of this debate, it is not hard to see how deeply flawed this legislation is. Red flag laws are menacing threat to many constitutional rights other than the Second Amendment.

First, it helps to explain what exactly this law proposes. Let’s assume you are concerned about your uncle, who uttered some troubling comments. You’re worried that he is a danger to himself and others — and you know he owns firearms. You, the petitioner, file an affidavit claiming such things, and quickly meet with a judge. The judge reviews your claims and decides on whether or not to issue the ERPO. If an ERPO is issued, your uncle, the responder, is then forced to turn in his guns.

For starters, this whole scenario blurs the line between civil and criminal legal actions. Your uncle has committed no crime, but somehow warrants a judicial order and a knock on the door (if he is lucky) by the police. If the language of this bill was purely criminal, it would be dead on arrival; it’s no accident that half of the Bill of Rights explicitly enumerates the rights of the accused.

This legal trickery is intentional. Legislative wonks skirt constitutional barriers — pesky platitudes like “innocent until proven guilty” — by keeping their legalese in the civil side of the court system.

This way, petitioners can leapfrog the Fourth Amendment, which protects us from search and seizure without probable cause first being established. Police can begin to obtain a search warrant in concurrence with the ERPO, meaning evidence — which is mostly hearsay to begin with — is an afterthought.

Now, police are at your uncle’s door, ready to raid his property. Police are seizing your uncle’s guns, which should — in theory — be protected by the Fifth Amendment. The Constitution denies the taking of property without due process. But, again, this is a civil matter, so we continue to linger in this murky, gray area of constitutional law. As a result, your uncle’s firearms get locked away in a police evidence locker, and can remain up to a year. If a continuance is filed, it can be kept longer. This not only bars your uncle from his current firearms, but also stops him from purchasing any during the length of the ERPO. Next, your uncle gets his day in court to plead his case that he isn’t crazy and deserves to have his firearms returned. Meanwhile, you, the petitioner, don’t even have to be appear in court. Traditionally, the Sixth Amendment guarantees your right to face your accuser in court when facing criminal charges. The keyword again: criminal. Again, ERPO apologists fight like hell to keep this matter in civil court, because they fully understand the implications.

If the constitutional arguments enough for you, then the hollowness of red flag supporters’ rhetoric might be more convincing.

Gun control advocates traditionally use the line “we are not taking away your guns.” ERPOs literally take guns away — hard stop. And all it takes is an affidavit.

Advocates will then pivot to “mental health,” which is also equally disingenuous. If supporters were concerned about mental health, then they would be talking more about “M-1 holds.” M-1 allows police officers to place individuals, who are a potential threat to themselves or others, into 72-hour psychiatric evaluation. This law enforcement tool actually gives people the professional help they might need. No new law is required, but, then again, the true intent of this law has little to do with mental health.

If this was about mental health, an ERPO is a backwards way of addressing it. This action only enhances a responder’s alienation without any mental health support. If he is prone to violence, the ERPO has weaponized his anger. If his is prone to self-destruction, he will likely find another pathway to his end.

And the final talking point offered in support usually starts with the same prepositional phrase: “If this saves one life…” Proponents claim the moral high ground, but fail to realize that this law has already cost a life. Gary Willis, was the first casualty of this law, when he was gunned down in his Maryland home, when police were serving an ERPO. If only we could save his life.

You don’t have to be a “gun nut” to be troubled by the red flag law. Individuals with a reverence for critical thinking, civil liberties, and human dignity should be able to discern that this aptly named law is riddled with worrisome red flags.

Jay Stooksberry is chair of the Libertarian Party of Delta County and a contributor to the Libertarian Party of Colorado.

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If you would like more information about this topic, please contact Lance Cayko at 303.775.7406 or email at CommunicationsDirector@LPColorado.org.