The Biden Administration's Model 'Red Flag' Law Belies the Justice Department's Avowed Commitment to Due Process

The Justice Department's proposal encourages states to take away people's Second Amendment rights based on little more than bare allegations.

As President Joe Biden promised in April, the U.S. Department of Justice (DOJ) recently published model "red flag" legislation that authorizes court orders prohibiting gun possession by people deemed a threat to themselves or others. The proposed language describes a process that is rigged against respondents from beginning to end, allowing courts to strip people of their Second Amendment rights based on little more than bare allegations by potentially mistaken, biased, or malicious petitioners.

Red flag laws, which 19 states and the District of Columbia have enacted, are commonly portrayed as a way to stop mass shootings. The Biden administration has described such legislation as a response to "the gun violence public health epidemic." Attorney General Merrick Garland likewise declares that "the Justice Department is determined to take concrete steps to reduce the tragic toll of gun violence," and he says the model red flag legislation is one of those steps.

This gloss is more than a little misleading. A 2020 RAND Corporation review found no scientifically sound studies indicating that red flag laws prevent either mass shootings or violent crime generally. It found "inconclusive evidence" that they prevent suicides, which the available data indicate is the justification for a large majority of gun confiscation orders.

The Justice Department is cagey on this point, saying red flag laws authorize courts to "temporarily bar people in crisis from accessing firearms." By "allowing  family members or law enforcement to intervene…before warning signs turn into tragedy," the DOJ avers, such laws "can save lives," which it claims "research has shown." It describes red flag laws as "an evidence-based approach to the problem" without specifying exactly what "the problem" is. But since the only real evidence pertains to suicide rather than homicide, it should be clear that politicians who support these laws are doing a bait and switch: They cite mass shootings to justify authorizing court orders that are mainly used to stop people from killing themselves.

The Justice Department pays lip service to "due process" and "protecting the rights of law-abiding Americans," and it acknowledges the possibility of "false or harassing applications" for gun confiscation orders. But its model legislation contradicts those caveats. Here is how the proposal addresses some of the major issues raised by red flag laws.

Who can apply for orders?

The DOJ thinks requiring that petitions come from law enforcement agencies, a rule aimed at filtering out unsubstantiated complaints, unnecessarily limits the lifesaving potential of red flag laws. It recommends that authorized petitioners also include family members, defined as parents, spouses, children, or siblings of the respondent; household members, which would include housemates and cohabiting girlfriends or boyfriends; "dating or intimate partner[s]"; health care providers; and officials at schools the respondent has attended within the preceding "six months," "one year," "two years," or "other appropriate time period specified by state law," plus "any other appropriate persons specified by state law." Depending on the state, that last category may include additional relatives, employers, co-workers, former housemates, ex-spouses, and former dating partners.

The rationale for such an expansive list of potential petitioners is that it empowers people who know the respondent to obtain a red flag order quickly, without having to satisfy police that their concerns are justified. But eliminating that filter while allowing petitions by a wide range of possibly hostile or sincerely mistaken relatives, intimates, and acquaintances magnifies the risk that people will lose constitutional rights even though they pose no real threat to themselves or others.

In California, which defines petitioners broadly, both the promise and the peril of that approach so far have remained mostly theoretical, since law enforcement officials still account for more than 95 percent of red flag cases. In Maryland, by contrast, most applications come from other kinds of petitioners. While the judgment of police and prosecutors is by no means infallible, the possibility of error is clearly greater when a state allows direct petitions by people who may have an ax to grind, such as estranged spouses, aggrieved housemates, resentful co-workers, or school officials who knew the respondent as a student years ago.

What is the standard for ex parte orders?

Every state with a red flag law allows ex parte orders, which judges issue without prior notice or a hearing. Those orders, which authorize gun confiscation and prohibit the respondent from obtaining new firearms, typically last two or three weeks, at which point the target finally gets a chance to rebut the allegations. Data from Florida and Maryland indicate that judges almost always issue ex parte orders. That is hardly surprising, since at this stage they have heard only one side of the story, which makes the term respondent a misnomer.

Despite the obvious due process problems this policy raises, the Justice Department is agnostic on the question of what the legal standard should be. Its model language says a judge "shall issue an emergency ex parte extreme risk protection order" when the petitioner "provides specific facts establishing probable cause" to believe that the respondent poses either "a significant danger," an "extreme risk," or "other appropriate standard established by state law." It does not define those terms, and neither do the state laws to which it alludes.

Unlike most state laws, the DOJ language does not require that the risk be imminent, which you might think would be a basic requirement for an "emergency" order based on the premise that allowing time for a hearing would be unacceptably dangerous. Furthermore, the model statute says the court "shall take up and decide such an application on the day it is submitted" or, if that is not feasible, "as quickly as possible." In other words, the Justice Department is encouraging haste even though its proposed legislation does not require the sort of risk that might justify it.

How long does an ex parte order last?

The DOJ is similarly blind to the cost of delaying the hearing that is supposed to happen after a judge rubber-stamps one of these petitions. It says only that a hearing should be held within an "appropriate time period specified by state law." Despite its avowed concern about due process, the Justice Department expresses no opinion about whether that "appropriate time period" should be days, weeks, or months.

What is the standard for a post-hearing order?

After a hearing, the model statute says, the court "may issue" an "extreme risk protection order" if the petitioner presents "specific facts giving rise to the concern" that the respondent poses a threat to himself or others. As with ex parte orders, any sort of threat will do. It could be "an extreme risk," as the name of the order suggests; merely "a significant risk," whatever that means; or any "other appropriate standard established by state law."

Likewise with the standard of proof, which the DOJ suggests could be a "preponderance of the evidence," the more-likely-than-not standard used by a few jurisdictions, or any "other appropriate standard specified by state law." Tellingly, the model statute does not mention "clear and convincing evidence," the relatively strict standard adopted by most states with red flag laws. The Justice Department seems to think that standard, which judges in Florida conclude is satisfied about 95 percent of the time, is too demanding.

To be fair, the standard of proof may not matter much when the thing to be proven is as vague as "a significant risk." The malleability of such terms practically guarantees that the vast majority of people who lose their constitutional rights under red flag laws would not in fact have used a firearm to harm themselves or anyone else. Still, the difference between "preponderance of the evidence" and "clear and convincing evidence" can be decisive in some cases.

How long does a post-hearing order last?

Most states with red flag laws say up to a year, although the maximum in California is five years. But the Justice Department does not seem to think that detail is important either. One year is OK, it says, but so is any "other appropriate time period specified by state law."

The model statute says a respondent can seek early termination of an order "one time during the effective period," in which case he has to prove he does not pose a threat to himself or others. Even California is more generous, giving the respondent a chance to demonstrate his lack of dangerousness once a year.

At the same time, California and other states allow a petitioner to extend the order by alleging that the respondent still poses a threat. In California, that provision could deprive someone of the constitutional right to armed self-defense for a decade or more. The DOJ sees no problem with such potentially endless extensions, even though it says the aim of its proposed legislation is to "temporarily" keep firearms from "people in crisis."

Does a respondent have a right to an attorney?

Colorado is the only state with a red flag law that gives petitioners a right to court-appointed counsel if they can't afford an attorney or choose not to spend the money required to hire one. Without legal representation, respondents must fend for themselves in a daunting system that in practice presumes their future guilt. The Justice Department has nothing to say about that problem.

What is the remedy for false or malicious petitions?

The model statute allows for "appropriate criminal penalties" when someone files a petition "containing information that he or she knows to be materially false, or for the purpose of harassing the respondent." The Justice Department notes that "the penalties authorized by this section would be in addition to other authorized legal penalties and sanctions, such as the general penalties for perjury or false statements under oath."

As Independence Institute gun policy scholar David Kopel notes, the practical obstacles to successful prosecution in such cases make criminal penalties a weak deterrent. He recommends that red flag laws include a civil cause of action for victims of frivolous petitions, a safeguard that the Justice Department apparently believes is unnecessary.

Due process protections are especially important when the government contemplates taking away someone's constitutional rights based on inherently iffy predictions about what he might otherwise do. The risk that someone will use a firearm to kill himself or others, however small, is apt to loom larger in the minds of judges than the risk that he will unjustly but temporarily lose his Second Amendment rights. Given that reality, legislators have an obligation to make sure that red flag respondents have ample opportunity to challenge the claim that they cannot be trusted with firearms. So far legislators have done a poor job of that, and the Justice Department is pointing them in exactly the wrong direction.