This week the House Judiciary Committee approved the Extreme Risk Protection Order Act. The legislation would provide grants to encourage the passage and enforcement of "red flag" laws, which are supposed to prevent people from possessing firearms when they are deemed a threat to themselves or others. The bill's standards for grant eligibility vividly illustrate the due process issues raised by such laws. Far from encouraging states to include robust due process protections, the bill would encourage them to slap together the weakest elements of the existing statutes.
The original version of the bill, which was introduced by Rep. Salud Carbajal (D–Calif.) in February, included very loose criteria for red flag laws. An amendment by House Judiciary Committee Chairman Jerrold Nadler (D–N.Y.) made the bill even more permissive.
In Nadler's version, petitioners—who, depending on the state, may include a long list of relatives and acquaintances as well as police officers and prosecutors—could obtain an ex parte gun confiscation order if a judge decides there is "reasonable cause" to believe the respondent "poses a danger of causing harm" to himself or others. That determination would be made without any input from the respondent, who at this stage is not notified and has no opportunity to rebut the claims against him. Contrary to the bill's name, the danger the respondent allegedly poses would not need to be "extreme," substantial, or even significant. Furthermore, no time frame is specified, so the risk would not have to be imminent, which you might think would be a requirement for an ex parte order.
That initial order could last up to a month, at which point the respondent would finally get a hearing, although he wouldn't have a right to legal representation if he can't afford it. The judge could issue a final order if, based on "a preponderance of the evidence," a respondent seems to pose "a danger" to himself or others. Again, any level of risk would do, and the danger could be near or distant. The order could last "for a specified period of time" or until terminated by another order—i.e., indefinitely. Given the standard of proof (which is equivalent to any probability greater than 50 percent) and the level of danger required (anything greater than zero), respondents could lose their Second Amendment rights for a year—or longer, depending on what state legislators decide to allow—even if it was 99.9 percent certain that they never would have hurt themselves or anyone else.
The minimum standards prescribed by Nadler's bill seem to have been crafted so that all the jurisdictions that already have red flag laws—17 states and the District of Columbia—could qualify for grants. The bill thus would lower the bar to the level of the jurisdictions with the weakest due process protections.
In every jurisdiction but two, for example, an ex parte order is supposed to be based on a risk that is "imminent," "immediate," or "in the near future." Nadler's bill dispenses with that requirement, the better to accommodate D.C. and Massachusetts. The usual time limit on ex parte orders under the existing laws ranges from one to three weeks, with 14 days the most common choice (although ex parte orders can last up to 45 days in Delaware and up to six months in Maryland if they are extended). Nadler's limit is 30 days.
More than three-quarters of existing red flag laws require "clear and convincing evidence" for a final order. Nadler's bill says the weaker "preponderance of the evidence" standard is fine, so D.C., Hawaii, Massachusetts, and New Jersey needn't worry about missing out on federal money. Even among those looser jurisdictions, all but Massachusetts require a "significant" danger, which is hard to define but is at least more than any danger at all, the standard set by Nadler's bill.
Finally, Nadler's bill imposes no limit at all on the length of final orders, which under existing laws generally last a year (although they can be renewed in most of the states for another year). The two exceptions are Indiana and New Jersey, where gun confiscation orders last until the respondent files a petition and persuades a judge that he does not pose a danger to himself or others. Under Nadler's bill, that's fine too.
Sen. Lindsey Graham (R–S.C.), who plans to introduce a similar bill in the Senate, has dismissed critics of red flag laws as "libertarians." But he also has promised that his bill will include standards aimed at protecting Americans' Second Amendment rights. He will have to do a lot better than Nadler if he wants to be taken seriously.
Sen. Marco Rubio (R–Fla.) has already introduced the Extreme Risk Protection Order and Violence Prevention Act, which he brags about in today's New York Times. Rubio's bill is notably better than Nadler's in several ways but still does not set standards that provide adequate protection for people accused of posing a threat.
Under Rubio's bill, the minimum standard for an ex parte order would be "probable cause to believe that the respondent poses a significant danger…in the near future." A hearing would be required within 14 days. For a final order, a judge would have to find "by clear and convincing evidence that the respondent poses a significant danger." The order would last no longer than a year.
Like Nadler's bill, Rubio's would allow petitions not only by law enforcement officials but also by "family or household member[s]," including blood relatives, in-laws, spouses, dating partners, anyone who has produced a child with the respondent, and current or former housemates. Expanding the list of potential petitioners beyond police officers and prosecutors leaves the door open to claims by aggrieved or sincerely mistaken people, who in practice would be able to take away someone's Second Amendment rights based on unverified allegations. That is especially true at the initial stage, when judges almost always issue ex parte orders because they are afraid that something bad might happen before a hearing can be held.
Rubio's preferred standard for final orders, which matches what most states with red flag laws already are doing, is weak in practice, because "significant danger" is undefined and means whatever judges decide it means. Rubio's bill lists factors that judges may consider, including threats, "evidence of a serious mental illness," drug use, and unlawful use of firearms. But the list is not exhaustive, leaving judges free to consider any evidence they deem "relevant."
An amendment to Nadler's bill proposed by Rep. Steve Chabot (R–Ohio) and rejected by the House Judiciary Committee would have required a tougher standard for final orders: "clear and convincing evidence" that the respondent "poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury" to himself or others. That standard is stricter than any in the existing red flag laws, but it would still be satisfied in cases where would-be mass shooters have shown clear signs of violent intent, as with the perpetrator of the 2018 attack at a high school in Parkland, Florida. At the same time, Chabot's standard would reduce the risk that innocent people will lose their Second Amendment rights because of a misinterpreted (or misrepresented) conversation or an offensive or controversial social media post.
Testifying before the Senate Judiciary Committee last March, David Kopel, a gun policy expert at the Independence Institute in Denver, emphasized the importance of procedural safeguards to protect the constitutional rights of respondents in gun confiscation cases. Kopel's recommendations include requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, letting them sue people who file false and malicious petitions, and giving them advance notice of confiscation orders. Rubio's bill omits almost all of those recommendations.
Since judges have strong incentives to err on the side of issuing orders, lest they be blamed when something terrible happens, the standards they are supposed to follow are vitally important. But both federal and state legislators have strong incentives to cast the net as widely as possible to stop mass shooters before they attack. Given the rarity of mass shootings, however, gun confiscation orders, even if limited to people deemed a threat to others, will mainly be applied to individuals who never would have committed such a crime. That is especially true when you consider that such orders (judging from the experience in Connecticut and Indiana, the states with the oldest red flag laws) are usually invoked against people who are deemed suicidal.
The goal should be to minimize the number of harmless people who are unjustly deprived of their constitutional rights. On that score, the existing red flag laws fall conspicuously short. A federal law that blesses all of them, as Nadler would do, or the vast majority of them, as Rubio (and perhaps Graham) would do, makes it even more unlikely that their shortcomings will be addressed.