States Are Depriving Innocent People of Their Second Amendment Rights
"Red flag" laws leave gun owners defenseless.
Shortly after 5 a.m. on November 5, 2018, two police officers arrived at Gary Willis' house in Glen Burnie, Maryland. They were there to take away his guns. They ended up killing him instead.
According to the Anne Arundel County Police Department, the 61-year-old man, who at that hour presumably had just been awakened by the officers' knocking, answered the door with a gun in his hand. He put it down when he saw who was there. Upon learning that the two officers had come to serve him with an "extreme risk protective order" (ERPO) that barred him from possessing firearms, police said, Willis became "irate" and picked up the weapon again. As one officer tried to wrestle the gun away from Willis, it went off, whereupon the other officer shot him.
Police Chief Timothy Altomare subsequently argued that the incident illustrated the need for Maryland's ERPO law, which had taken effect barely a month before. "If you look at this morning's outcome," he told the Annapolis Capital, a newspaper whose headquarters had been the site of a mass shooting the previous June, "it's tough for us to say 'Well, what did we prevent?' Because we don't know what we prevented or could've prevented. What would've happened if we didn't go there at 5 a.m.?"
Well, for one thing, Gary Willis probably would still be alive.
Altomare invites us to speculate that Willis might have used a gun to kill someone. Yet at the time of his death, the only evidence to support that concern seems to have been a complaint from his sister, who reportedly obtained the temporary ERPO against her brother after a family argument during which he said something that alarmed her. Willis had no opportunity to challenge that claim, and he had no idea he had been stripped of his Second Amendment rights until police arrived at his door early in the morning with the court order in hand.
Anne Arundel County police did not respond to my inquiries, and the Maryland courts have declined to provide records of the case, which are confidential under state law unless a judge rules otherwise. Based on interviews with relatives, local news outlets reported that the ERPO stemmed from an argument the day before about the care of Willis' elderly mother. According to WBFF, the local Fox station, "Gary Willis struggle[d] with alcoholism" but "family say he wasn't dangerous, just strongly opinionated."
Michele Willis, Gary's niece, gave a similar account in an interview with The Baltimore Sun, saying her uncle "likes to speak his mind" but "wouldn't hurt anybody." She added that his fatal encounter with the police seemed senseless. "I'm just dumbfounded now," she said. "They didn't need to do what they did."
Maryland is one of 17 states with so-called red flag laws, most of which were enacted following the February 2018 massacre at Marjory Stoneman Douglas High School in Parkland, Florida. After the mass shootings in El Paso and Dayton in August, President Donald Trump endorsed red flag laws as a way of preventing such crimes by disarming would-be mass murderers. But judging from the available data, the court orders authorized by such laws are usually aimed at preventing suicide rather than homicide. The evidence on whether they succeed in doing that is mixed. So far there is no solid evidence that they prevent homicides, even though the oldest red flag law was enacted two decades ago.
One thing is certain: Taking away people's guns based on predictions of what they might do with them raises thorny due process concerns. That's especially true with laws like Maryland's, which authorize broad categories of people to seek ERPOs based on scant evidence and effectively put the burden on gun owners to demonstrate that they don't pose a threat to themselves or others. While the benefits of these laws are mostly speculative, they inevitably deprive law-abiding people of the constitutional right to armed self-defense, even when it is quite unlikely that they would use guns to hurt themselves or anyone else.
A 95 Percent Approval Rate
Maryland's law, which was enacted two months after the Parkland attack and took effect in October 2018, authorizes law enforcement officers, physicians, mental health specialists, and various relatives, intimates, and cohabitants to seek ERPOs. That list includes housemates, spouses, dating partners, people who have "a child in common with the respondent," and anyone "related to the respondent by blood, marriage, or adoption." A temporary ERPO, lasting up to a week, can be issued if there are "reasonable grounds" to believe the respondent poses "an immediate and present danger" to himself or others.
At that stage, as Gary Willis discovered, respondent is a misnomer: The initial ERPO is an ex parte order, meaning its target does not have a chance to respond. A judge can extend the ex parte order for up to six months if there is "good cause." A final ERPO, which lasts up to a year and can be extended for another six months, can be issued after a hearing based on "clear and convincing evidence" that the respondent "poses a danger" to himself or others. In light of that language, extreme risk protective order is also a misnomer, since any level of danger—slight, great, or middling—suffices to obtain one. But at least at this point, the respondent is allowed to rebut the claims against him, although he has no right to legal representation if he can't afford it.
During the first five months after the ERPO law took effect, according to statewide data published by the Montgomery County Sheriff's Office, judges or commissioners (low-level judicial officers) approved 422 temporary or interim orders. Requests for those initial orders are almost never rejected in Maryland, and the same is true in Florida, which enacted a red flag law in March 2018.
It is not surprising that judges are disinclined to be skeptical of an applicant who claims a gun owner poses an imminent threat, since they do not want to take the blame if something terrible happens before they can hold an adversarial hearing. But what happens at the next stage, when the threat need not be imminent but the burden of proof is heavier? In Maryland, when a hearing was actually held (in some cases the petitioners did not show up), judges granted final ERPOs 62 percent of the time. In Florida, according to data from the Office of the State Courts Administrator, 1,482 hearings had been held as of March 31 and 1,409 orders had been granted, which translates into an approval rate of 95 percent.
Although the standard of proof in Florida is the same as in Maryland (clear and convincing evidence), Florida's law allows petitions only by law enforcement officers or agencies, which judges apparently find more credible than the reports of possibly aggrieved (or sincerely mistaken) spouses, dating partners, cohabitants, in-laws, or blood relatives, who accounted for most of the applications in Maryland. But that trust can be misplaced.
'I'm Not a Violent Person'
Consider Chris Velasquez, a University of Central Florida (UCF) student who owned no firearms, had no history of violence, and had never threatened anyone, but who nevertheless was an early target of his state's red flag law because he said some stupid things on Reddit. In a thread titled "You guys are too weak to be a school shooter," Velasquez replied, "Maybe for now but not forever." Later, he posted "RIP Paddock my hero" in a thread about the autopsy of Las Vegas mass shooter Stephen Paddock and wrote "Cruz is a hero!" in reference to Nikolas Cruz, perpetrator of the Parkland massacre.
Those three comments resulted in a March 2018 interview with a UCF police officer, Jeffrey Panter, during which Velasquez explained that he was just "trolling" and trying to look tough but regretted his tasteless comments. "I'm not a violent person," Velasquez told Panter. "I would never, ever act out in violence against anybody in a mass shooting or anything of the sort." He called the Parkland massacre "a senseless tragedy" and noted that a mass shooter may get his "15 minutes of fame" but will "eventually be remembered as a piece of crap." Listening to the interview, you do not get the impression that Velasquez had ever seriously contemplated committing a crime of this sort, let alone made any plans or taken any steps in that direction.
Panter refused to accept Velasquez's explanation or his assurances. During the interview he pressured, cajoled, and manipulated Velasquez into agreeing with statements that, taken out of context, made it seem like he genuinely admired Paddock and Cruz, that he identified with Cruz because both of them had been bullied as kids, and that he had repeatedly fantasized about returning to his former middle school or high school in Orlando and shooting it up.
A mandatory psychiatric assessment after the interview found that Velasquez did not meet Florida's criteria for involuntary treatment, which would have required clear and convincing evidence that, because of mental illness, there was a "substantial likelihood" that he would "inflict serious bodily harm" on himself or others "in the near future." Panter nevertheless referred the case to the Orlando Police Department, where Sgt. Matthew Ochiuzzo twisted Velasquez's online comments and his interview with Panter into a portrait of a deeply troubled man who was just one disappointment away from committing mass murder.
On a list of 15 possible grounds for issuing a risk protection order (as it's known in Florida), Ochiuzzo checked five, including "there is evidence that the respondent is seriously mentally ill," "respondent has committed a recent act or threat of violence," and "respondent has used or threatened to use any weapons against him or herself or others." None of that was true.
Ochiuzzo claimed Velasquez "disclosed that he has had thoughts and urges to commit a mass shooting since his sophomore year of high school." But Velasquez never said that. To the contrary, when Panter asked about his state of mind in high school, he said, "I didn't have any thoughts of a school shooting."
Ochiuzzo also claimed "the respondent indicated that he wanted to commit the mass shootings so that he could feel the 'adrenaline rush' from the shooting." In reality, Velasquez repeatedly said he would never commit such a crime.
Based on an affidavit that was highly misleading and in some respects blatantly inaccurate, Circuit Judge Bob LeBlanc issued a temporary risk protection order against Velasquez. But at a hearing about two weeks later, when Velasquez finally had a chance to defend himself, LeBlanc found the city had failed to provide clear and convincing evidence that Velasquez posed "a significant danger."
Velasquez's lawyer, Kendra Parris, says LeBlanc realized the threat described by Ochiuzzo was never more than theoretical. "The judge asked, 'Did he actually make any threats, or was this all in response to hypothetical questions?'" she says. "And of course, it was all in response to hypothetical questions. Fortunately, the judge noted that this essentially amounted to thought policing and declined to issue the order."
'They're Treating Me As If I'm a Criminal'
Although that decision may look like a victory for due process, Parris notes that LeBlanc could have reached a different conclusion, since Florida's law says judges "may consider any relevant evidence." The statute gives 15 examples but says the list is not exhaustive.
The law also leaves crucial terms undefined. Ochiuzzo claimed Velasquez was "seriously mentally ill," for example, even though he had no diagnosis and a psychiatrist found he did not meet the criteria for commitment. Nor is it clear what "a significant danger" means in this context. Even assuming that judges apply such standards with precision, should they consider a 5 percent risk "significant"? One percent? Ten percent?
"Because we can't figure out what 'significant' means, you have this high burden of proof," Parris says—but it relates to a probability that may be "extraordinarily low," based on any evidence a judge considers relevant. "The 'clear and convincing evidence' standard is meaningless, because the criteria are open-ended. The court literally can look at anything."
One of Parris' clients, who lives in Broward County, Florida, posted a photo of an AR-15 rifle he had built, accompanied by the comment, "It's done. Hooray." On another occasion, he posted a comment criticizing teenaged gun control activists, who he said were trying to take away people's Second Amendment rights. Those two posts were enough to obtain a temporary gun confiscation order, although Parris ultimately persuaded the city to drop its petition for a final order.
Another client, former professional football player Oliver Hoyte, did not have the benefit of a lawyer at his hearing, but he really could have used one. After an argument with his aunt and her boyfriend, he says, they told police he had threatened them with a gun. In addition to that claim, Tampa police presented several other unverified allegations against Hoyte—including some they had never questioned him about, he says. They even cited a 2013 case in which he was acquitted of aggravated assault. He says video evidence contradicted the testimony of a man who claimed Hoyte had pulled a gun on him.
Parris notes that an Orange County judge last year rejected an application for a final risk protection order because it was based on events that predated the red flag law. Since the law does not say it applies retroactively, the judge said, the presumption is that it does not. That is one of the points Parris planned to raise if she managed to get a rehearing for Hoyte. She hoped to get that hearing by arguing that the government should have provided him with a public defender, although at press time she also was trying to negotiate dismissal of the case with the city.
"I feel like I should have the right to representation," Hoyte says. "The judge said, 'You do have the right to representation, but the court is not going to appoint it for you.'"
Police confiscated Hoyte's Taurus 9 mm pistol, and he was forbidden to buy any other firearms for a year (possibly longer, if the order is extended). As a result, Hoyte says, he does not feel safe visiting certain neighborhoods, including the one where his family lives. "I'm not on an equal footing with everyone else," he says. "I don't have the right to bear arms, and I haven't done anything wrong. I haven't been convicted of any crime. I haven't been hospitalized. I haven't harmed anyone. This law is wrong because it eliminates due process. They're treating me as if I'm a criminal."
The high approval rate by judges in Florida suggests the deck is stacked against respondents like Hoyte. "All the pressure is on the other side," Parris says. "There's absolutely no downside to just going ahead and issuing the order."
Parris argues that the "significant danger" standard is unconstitutionally vague and that Florida's law impermissibly delegates legislative and prosecutorial authority to the police. But while such arguments can be raised on appeal, the process typically takes longer than the risk protection order lasts. "By the time your appeal works its way through the District Court of Appeal, it's already going to be 12 months," Parris says. "There's no real recourse."
Do Red Flag Laws Work?
Connecticut enacted the country's first red flag law in 1999, following a mass shooting at the Connecticut Lottery Corporation's headquarters the previous year. The statute allows police officers or prosecutors to seek a gun confiscation order when they have "probable cause" to believe someone poses "a risk of imminent personal injury" to himself or others. A hearing is required within 14 days of the seizure, at which point the standard becomes "clear and convincing evidence" of an imminent risk. If police meet that burden, they can keep confiscated guns for up to a year.
Indiana came next, enacting a red flag law in 2005, after a man diagnosed with paranoid schizophrenia used a rifle to kill one Indianapolis police officer and injure another four. That law allows a police officer to seek a gun confiscation order against someone he believes poses an imminent threat to himself or others. It also applies to someone who poses a threat that is not immediate but who "has a propensity for violent or emotionally unstable conduct" or who "has a mental illness that may be controlled by medication" but has not been diligent about taking it.
Under Indiana's law, a police officer can seize guns without a court order, in which case he is supposed to file an affidavit explaining his reasons after the fact. If a judge agrees that the officer had probable cause, police can keep the confiscated weapons. A hearing is required within 14 days, at which point the state has to prove by clear and convincing evidence that the gun owner meets the law's criteria. After at least six months have passed, the gun owner can seek the return of his property. He has to prove by "a preponderance of the evidence" that he "is not dangerous."
Notwithstanding the requirement that a hearing be held within two weeks, a 2015 study reported in the journal Behavioral Sciences and the Law found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms. When a hearing finally was scheduled, most of the gun owners did not show. But when they did, they usually prevailed, meaning judges decided the state had not met its burden of proving them dangerous. During the last 71 months covered by the eight-year study, gun owners won every contested case.
In Connecticut, by comparison, judges ruled that guns should be kept by the government in 68 percent of cases where the outcome was known, according to a 2014 Connecticut Law Review article. But outcomes were reported in less than 30 percent of cases.
Although Indiana and Connecticut both enacted red flag legislation in response to mass shootings, the laws are used mainly to protect people from their own suicidal impulses, a justification cited in 68 percent of Indiana cases from 2006 through 2013 and in 61 percent of Connecticut cases from 1999 to 2013. A study reported last year in the journal Psychiatric Services found that Indiana's law was associated with a 5 percent reduction in the overall suicide rate, while Connecticut's law was associated with a net increase in suicides. Using a different (and contested) method, a 2017 study published in Law and Contemporary Problems estimated that one suicide was prevented in Connecticut by every 10 to 20 gun seizures. A 2019 study of Indiana's law by the same researchers, reported in The Journal of the American Academy of Psychiatry and the Law, reached a similar conclusion.
Duke University medical sociologist Jeffrey Swanson, the lead author of those last two suicide studies, thinks due process needs improvement in Indiana. "The state's apparent failure to comply with the statutory guideline of holding a hearing within 14 days puts a damper on the success story of suicide prevention," he writes in an email. "This should be the focus of efforts to improve implementation of the law."
'It's a Great Idea on Paper'
Even taking the results of Swanson's studies at face value, the implication is that the vast majority of people whose guns were seized—90 to 95 percent—would not have committed suicide had they retained their firearms. Meanwhile, none of these studies reported any effect on homicides.
David Kopel, a gun policy expert at the Independence Institute in Denver, says red flag laws may have an impact, even if it is too small to be detected by looking at suicide and homicide rates. "I think it would disarm some people who are suicidal," he says. "And I think you have some people who are acting dangerously enough that a person with common sense would say, 'Wow, that guy should not have a gun.' It would address folks like that."
But Kopel emphasizes the importance of procedural safeguards to protect the constitutional rights of gun owners, such as 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, and letting them sue people who file false and malicious petitions. He also recommends giving gun owners advance notice of confiscation orders unless there are special reasons not to do so, a policy that might have made a crucial difference in Gary Willis' case.
Northeastern University criminologist James Alan Fox, an expert on mass shootings, shares Kopel's concern that suddenly seizing guns can make violence more likely. "If you have an individual who's angry, bitter, threatening other people, [and] owns a gun," Fox told Reason's Nick Gillespie in August, "the attempt to take that gun away can actually precipitate the very violent act that you're trying to prevent."
No existing law meets all of Kopel's criteria. Washington state allows an even longer list of people to file petitions than Maryland does, including former spouses, former girlfriends and boyfriends, and former roommates. California's list is almost as long, and a pending bill would expand it further, adding employers, co-workers, and school personnel. Colorado is the only state that guarantees a lawyer for respondents, and no state provides a civil remedy when petitioners lie.
In Massachusetts, New Jersey, Washington, and the District of Columbia, a final order can be obtained based on a mere preponderance of the evidence: anything more than a 50 percent probability that the respondent poses a "significant" danger. Depending on what counts as significant, this formula implies that people can lose their gun rights even if it is nearly certain that they would not have hurt themselves or others.
After the El Paso and Dayton massacres, Sen. Lindsey Graham (R–S.C.) introduced a bipartisan bill that would provide federal grants to encourage the passage and enforcement of red flag laws. "The Second Amendment is not a suicide pact," Graham told Fox News, while dismissing critics of red flag laws as "libertarians." He likened gun confiscation orders to involuntary psychiatric treatment, saying "that process would apply to gun ownership," when in fact the criteria for civil commitment are substantially stricter. Graham also promised that "nobody's going to lose their gun unless they have their day in court," which is clearly not true in light of ex parte orders that can last as long as six months.
"It's a great idea on paper," says Dave Workman, senior editor at the Second Amendment Foundation in Bellevue, Washington. "The problem is the execution." In practice, he says, red flag laws mean "you're guilty until you prove yourself innocent."