A new report on Florida's "red flag" law claims Broward County's experience with gun confiscation orders confirms that they prevent suicides and homicides while guaranteeing due process for people accused of posing a threat to themselves or others. But the analysis by the Giffords Law Center to Prevent Gun Violence (GLC), based on 255 police petitions filed in the year ending March 9, 2019, actually reinforces the civil liberties concerns raised by red flag laws. In particular, it shows that the judges who are supposed to decide whether someone poses enough of a threat to justify suspending his Second Amendment rights almost always defer to the conclusions reached by law enforcement agencies.
Florida, like every other state with a red flag law, allows police to obtain temporary, ex parte orders forbidding people to possess firearms. When police file such petitions, the respondent has no advance notice and no opportunity to rebut the allegations against him. The orders, which last up to 14 days, are supposed to be based on "reasonable cause to believe that the respondent poses a significant danger of causing personal injury" to himself or others "in the near future." In the cases covered by the GLC report, police always sought ex parte orders, judges always granted them, and they did so "very quickly," sometimes within hours.
Despite the wording of the statute, it seems that neither police nor judges are distinguishing between people who pose a risk that is "significant" (whatever that means) but not imminent and people who are apt to harm themselves or others "in the near future," such that waiting for a hearing would be unacceptably dangerous. The routine, automatic issuance of ex parte orders means that when a respondent finally gets his day in court, the playing field is slanted sharply against him. The judge is deciding whether to maintain the presumptively protective status quo or change course and give the respondent legal access to guns he might use to kill himself or someone else.
Not surprisingly, the information obtained by the GLC shows that judges are rarely willing to take that chance. When police sought final orders, which they did in 93 percent of the cases, judges issued them 96 percent of the time in cases where the outcome was known. Final orders, which typically last a year and can be extended for another year, are supposed to be based on "clear and convincing evidence" that the respondent "poses a significant danger of causing personal injury" to himself or others. Theoretically, that test is much harder to satisfy than the "reasonable cause" standard for an ex parte order (although the threat no longer has to be "in the near future"). Yet respondents persuaded judges to restore their Second Amendment rights just 4 percent of the time.
Respondents usually did not even try. "In 76% of cases," the GLC report says, "respondents agreed to the final orders prior to the hearing." In other words, "full hearings where both parties had the opportunity to present evidence in front of a judge occurred in only 24% of cases." The GLC says "the frequency with which final orders were agreed to by stipulation without a hearing likely minimized the administrative burden these orders placed on the courts while still providing the key elements of due process and ensuring that respondents had notice and an opportunity to be heard."
How can there be due process when three-quarters of the respondents never even presented their side of the story? You might surmise that respondents gave up without a fight because the police had strong evidence against them, but that is not necessarily true. In these cases, people who have already lost their Second Amendment rights are confronting a complicated and intimidating process, and they are doing so without the aid of a lawyer unless they can afford one and find one in time. Colorado is the only state with a red flag law where respondents have a right to court-appointed counsel if they can't pay for a lawyer or choose not to hire one.
David Kopel, a gun policy expert at the Independence Institute, notes that prosecutors in Connecticut have been known to actively discourage respondents from seeking legal representation. When law enforcement officials "arm-twist respondents into giving up before the hearing," he says, that hardly proves the government's case was strong.
"A lot of people are terrified of court," says Kendra Parris, an Orlando lawyer who specializes in red flag cases. "A lot of people think that if they lose, they'll be arrested. It's not like people understand these things or what's going on, especially not low-income people without a bunch of free time to surf the internet and [do] research. Sometimes people get confused about the date, or can't find a lawyer in time and give up."
Parris also notes that "some of the cities in Broward County are having their officers show up with the sheriff during service of the ex parte order and petition with a stipulation in hand." She adds that "some of them appear to be giving the respondents legal advice" by saying, for example, that they can still appeal even if they sign the stipulation. "This is not due process," she says. "It's pressure and intimidation."
Respondents face better odds in some of the other states with red flag laws. Connecticut judges ordered guns returned about a third of the time in cases where the outcome was known, according to a 2014 Connecticut Law Review article (although outcomes were reported in less than 30 percent of cases). Data from Maryland indicate that respondents have a similar chance of success there. In Indiana, according to a 2015 study reported in the journal Behavioral Sciences and the Law, gun owners generally prevailed when they showed up for hearings. During the last 71 months covered by the eight-year study, gun owners won every contested case.
The much lower success rate for respondents in Broward County, which is consistent with statewide data for Florida, could mean that police are doing a very good job of investigating and substantiating the risks that people pose, so that judges generally do not see any reason to second-guess them. "We don't know the screening process on the police side," Kopel notes. "Some departments may just file a petition upon any request. Others may conduct their own investigations and decide not to file."
The GLC says 55 percent of the Broward County cases, which include petitions filed by 14 city police departments as well as the county sheriff, involved homicide threats, 48 percent involved suicide threats, and 18 percent involved both. The report describes about half a dozen cases with compelling facts. One involved an "easily agitated" young man who routinely brought guns and a "heavy workout plate" to church despite requests that he stop doing so, expressed hostility toward organized religion, and talked about committing acts of violence. Another case involved a man who owned 40 guns and "had made multiple threats about harming himself and attempting suicide." Readers are invited to conclude that all of the cases were as clear-cut as these, which seems doubtful.
Judging from the GLC report, Florida is giving police a lot of power to determine who should be allowed to retain his Second Amendment rights. That faith can be misplaced, as illustrated by some of the cases I discussed in a recent Reason feature story about red flag laws. Even when police officers are conscientious, they may err on the side of seeking orders, since the prospect of a preventable suicide or homicide tends to loom larger than the chance that someone will unfairly lose his gun rights for a year or two.
Unfortunately, judges, who are supposed to act as a check against hasty police conclusions, have the same bias. Parris says the GLC study "pretty much confirms my suspicion and fear that the courts aren't actually reviewing these [applications]—just rubber-stamping them—and/or that courts are reluctant to push back against a petition from law enforcement."
[This post has been updated with an additional quotation from Kendra Parris and revised to clarify Colorado's provision regarding court-appointed counsel.]