Red Flag Laws

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.

NEXT: Somehow, The Hitman's Wife's Bodyguard Is About Professional Licensing Requirements and EU Sanctions

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Biden rescinded the Trump administration’s regulations on ensuring due process in campus tape cases. Where is evidence that thy he Biden administration has any interest in due process when a progressive cause is at issue? I am sure his AG has paid some lip service to the idea of due process, but words are wind.

    1. Campus tape is a serious problem. I agree that there should be no due process for tape cases.

      1. Don’t be silly; no one uses tape anymore. It’s mostly downloads with a few old timers still using CD’s.

        1. USA Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
          on this page…..VISIT HERE

        2. Buttplug is involved in many tape cases. But not campus related. His thing is child tape. Specifically duct tape.

    2. Homes to stash her drugs. Bennett said he only bought some marijuana and used clothes from the woman. The raid caused $50,000 in damage to the home, and now the police are refusing to pay for repairs.more detail……….VISIT HERE.

  2. Democrats don’t believe in due process. They either want to convict conservatives or they want to release criminals. Due process gets in the way of their chance to undermine society’s norms in their effort to impose a new dictatorship on the US.

    1. “U.S. Department of Justice (DOJ) recently published model “red flag” legislation”

      I missed when DoJ makes Legislation.

      1. “Model” legislation is the word for a template that they hope that actual legislatures will adopt. Lobbyists of all stripes publish model legislation that caters to their particular interest. It’s perfectly harmless (and protected by the First Amendment) until some legislature actually enacts their silliness.

        This particular model legislation is worse than most but there’s nothing inherently wrong with the DoJ or anyone else publishing their opinions about what the law should be.

  3. Black gun scary. Black gun bad. Black gun might hurt. Government, please take it away.

    1. Or you could change “gun” to “man” and make the same case against conservatives.

      I don’t see many arguments here calling for epileptics to be allowed to obtain a pilot’s license. What’s up with that anyway?

      1. Given that quite a few lefty shits aren’t really in shape, I’m sure you can find an asshole other than yourself to help you with those strawmen.
        Fuck off, slaver.

      2. That’s a mighty impressive non-sequitur you’ve got there.

        You are Tony’s sock puppet and I claim my five pounds.

      3. “I don’t see many arguments here calling for epileptics to be allowed to obtain a pilot’s license. What’s up with that anyway?”

        Pray tell, where in the law is it established that a person has the right to pilot a plane?

        1. One could argue that the right to pilot a plane is assumed in the 9th Amendment but considering it’s been functionally repealed since 16 December 1791 it hardly matters now.

          1. But the States also have the power to pass laws, as do cities counties. Or they can choose not to pass laws. The Constitution may be “The Law of the Land,” but it is not the only law.

            Now, if you want to argue that the Feds should have no interest in licensing pilots who do not fly interstate, or internationally, I would probably agree.

  4. >>authorizes court orders prohibiting gun possession by people deemed a threat to themselves or others

    “So, everybody.” ~~Leviathan

  5. Well, since no constitutional rights are at issue, what’s all the fuss?
    Will the “railroadees” also lose the right to vote? Since it is clear one of the criteria for being dangerous is registering Republican, I suspect so.

    1. Will the “railroadees” also lose the right to vote?

      One jolly well hopes so! No assembly or petitioning for those dangerous fuckers, either! Of course, they *may* still be able to worship, albeit with a custodian.

  6. These are more or less the same standards that states have used to hold people involuntarily in mental institutions for a very long time.

    “The Lanterman–Petris–Short (LPS) Act [1967] . . . . regulates involuntary civil commitment to a mental health institution in the state of California. The act set the precedent for modern mental health commitment procedures in the United States”. . . .

    The Act allowed involuntary treatment for those who were detained under an initial three-day hold (for evaluation and treatment) and a subsequent fourteen-day hospitalization (for those people declared after the three-day hold to be dangerous to themselves or others or gravely disabled).

    https://en.wikipedia.org/wiki/Lanterman%E2%80%93Petris%E2%80%93Short_Act#5150

    The courts are likely to rule on depriving people of their gun rights based on this criteria the same way they have in the case law that allows the state to lock you up in a mental facility for 72 hours–while they observe you to see if you get agitated, threaten anybody, or show any signs of anxiety or depression after being locked up.

    The people who are allowed to report you for being a danger to yourself or others is also the same in this as it with involuntary commitment to a mental health institution. Denying someone the right to own a gun on the basis of an assessment by a mental health professional is probably less of a infringement on their rights than locking them up in a mental hospital for weeks at a time without an allegation of a crime, much less a criminal conviction. And that, my friends, has been the status quo for decades.

    Meanwhile, when a psychiatrist can be held liable if he or she decides you aren’t a danger to yourself or others, and you’re released with your gun rights intact based on his or her assessment–and then you subsequently shoot yourself or someone else? What do you think the chances are that the psychiatrist won’t use your explanation for why you want to own a gun to diagnose you with severe anxiety or paranoia to justify keeping you away from guns? Why are you worried about burglars if you aren’t anxious or paranoid? Why are you afraid of the government if you’re not paranoid? Don’t expect to get an objective assessment from a psychiatrist who can be sued if you hurt yourself or someone else with a gun.

    And don’t expect the courts, ultimately, to strike this policy or these laws down when some states pass them. Ultimately, the only thing that can save our gun rights from this kind of attack is voting for the kinds of politicians who will vote against these laws or won’t implement these policies. If the fact is that your gun rights aren’t safe so long as the progressives running the Democratic party are in power, then that may be a sad state of affairs, but facts are facts regardless of how we feel about them.

    1. Very good point about involuntary psychiatric commitment. Seems to me if the gun confiscation order depends on a probable cause standard of evidence, it should be treated the same as an arrest, ie you have 72 hours to come up with charges or the order lapses.

    2. law already exists for Juducial action based on incompetence…i.e.age or mental incompetence
      So this is the same process but not for any real cause.

      Trojan Horse

  7. The proposed language [allows] courts to strip people of their Second Amendment rights based on little more than bare allegations by potentially mistaken, biased, or malicious petitioners.

    But it also allows people to sue the pants off petitioners who are actually mistaken, biased, or malicious, right? RIGHT?!

  8. This expansions of dangerous red flag laws is the inevitable consequence of ignorant and gullible gun owners and unprincipled gun organizations putting up an ignorant and cowardly standard bearer that utterly surrendered to tyrannical cops and gun grabbers on the issue.

    “Trump puts NRA on defensive with stunning gun comments”

    “‘Take the guns first. Go through due process second,’ Trump said at the White House. ‘I like taking the guns early.'”

    https://www.foxnews.com/politics/trump-puts-nra-on-defensive-with-stunning-gun-comments

    1. OK, TDS-addled asshole, what did he DO?

  9. 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.

    How about, before implementation, the proponents of this stuff prove *they* do not pose threats to themselves or others? That should be quite interesting.

    1. note the ” guilty till proven innocent” MO

  10. Incidentally, Biden promised to do all of this and more on his campaign website. He uses the word “relinquishment”, but he doesn’t seem to know what the word means. Having states and local government confiscate your guns when they decide you’re no longer eligible to own one isn’t “relinquishment”. That’s just “confiscation”.

    “As president, Biden will direct the FBI and ATF to outline a model relinquishment process, enact any necessary legislation to ensure relinquishment when individuals newly fall under one of the federal prohibitions, and then provide technical and financial assistance to state and local governments to establish effective relinquishment processes on their own.”

    https://joebiden.com/gunsafety/

    Elsewhere on the same page, Biden promises to use the Social Security Administration database that keeps track of people how have been deemed by the SSA to be capable of “managing their own affairs” to justify confiscating their guns on that basis alone. Just because the SSA sends your checks to your wife or kids, however, is not a sufficient justification for violating your gun rights.

    Everyone who failed to vote for Trump instead of Biden and is really upset about Biden’s war on our gun rights should be ashamed of themselves. This was not only foreseeable but also foreseen.

    1. I just hope Reason’s staff are enjoying the administration they fought for. The election was actually close enough that, shockingly, even Reason’s support might have mattered.

      1. Attacking the Messenger is childish

        1. Except Jacob isn’t just the messenger. He advocated for this.

          1. Not just by his vote. He easily published hundreds of articles attacking Trump relentlessly. Let him burn for it.

            Sullum is traitor trash.

  11. Gee, Jacob, maybe you shouldn’t have campaigned for Biden . . .

  12. The way that this unconstitutional bunk is worded would allow for the Brits to have stolen the guns of all the minutemen. As they were a threat to the redcoats. Ridiculous.

  13. Monday shocker! Democrats pay lip service to due process while striving to eliminate Amendments 1-10 in 2 yrs or less! Reason Magazine groggily aware after 4 years of mean tweet-provoked TDS! In other news, water is wet.

    1. Ha yea Reason is even less libertarian post Trump if that’s possible

  14. Guns for cops, red flags for everyone else.

    When the SWAT team busts down your door at 3:00AM looking for the drug house 1 block over, just wave your little red flag at them…

  15. So where is the Justice Department keeping the precogs who determine who to put under pre-crime arrest?

  16. Under what set of circumstances and by what process should someone lose their right to own a firearm. When faced with an acquaintence–a spouse, a neighbor, a fellow worker–who let’s me know that he/she carries a gun and threatens to use it on me at what point does my right to life outweigh your right to carry a gun?

    1. Thats already established at law.

      This is about an Agency subverting established law.

    2. at what point does my right to life outweigh your right to carry a gun?

      At the point where you proved that an unlawful threat was made and the person is convicted of committing said crime. It kinda sounds like you want to skip that process and have the authorities act on your say-so.

  17. “When faced with an acquaintence–a spouse, a neighbor, a fellow worker–who let’s me know that he/she carries a gun and threatens to use it on me at what point does my right to life outweigh your right to carry a gun?”

    And that relates to the question at hand, exactly how, slaver?
    Fuck off.

  18. The punishment against retaliatory injunctions is laughable. How many women take out a restraining order against their husband as a legal lever in a divorce? The number is non-trivial. However, even when it’s proven that it was in bad faith, the woman almost never receives any punishment. Do they think this will be any different?

  19. What could possibly be wrong with requiring those subject to a red flag order to wear a distinctive badge when out in public?

    1. …A Yellow Star, perhaps?

      1. We would need to educate the populace about these people.

  20. “and then provide technical and financial assistance to state and local governments to establish effective relinquishment processes on their own.”

    ..which are already set about Nullifying this un Constitutional BS. As they should.

  21. My Body my choice. Unless that means, helmet laws, preventing suicide or the stupid war in drugs.

  22. Especially when a lot of liberal shits aren’t in excellent form, I’m pretty sure you’ll find somebody else to assist you with those strawmen.
    Slaver, please go away.
    author: guest posting service

  23. The penalty for retaliation prohibitions is ludicrous. How many ladies use an order of protection against their husband as a legal tool during a miscarriage? The sum is not negligible. Even when it is demonstrated that the women acted in ill faith, she practically never gets any punishment. Do they think this round will be any distinct?
    best regards: essay writing services

  24. I’ve said this before but I’ll say it again: how are the police going to enforce these orders?
    Sure, maybe a uniformed Officer Friendly will politely knock on your door, politely show you the Order, politely ask for your guns, and patiently wait while you go fetch them. Maybe.

    But what does the police know about you? Well, according to a judge, you:
    1) Are a crazy person capable of exploding into violence at any moment, and
    2) You’ve got guns.
    Is it really unreasonable to think the police might go the SWAT route? And that maybe some innocent people are going to get killed at 2 AM?

    Naturally the liberals here are chuckling to themselves “Heh so what? Fucking gun nuts! Serves them right!” But remember: the government doesn’t know that you don’t actually own a gun. You could be on the receiving end of one of these orders. Best you think about that.

    1. Well why not. The J6 folks are being charged with trespassing and disrupting Congress critters and that equals indefinite detention without bail.

      The roving SWAT team doesn’t seem so far fetched.

      Heck this is a libertarian site and the Volokh column has articles on poetry and important stuff like that

  25. I am not a fan of Mitch McConnell,but the best thing he ever did was stopping that moron Merick Garland from being a Supreme Court justice. Centrist my ass ! Merick, what the fuck kind of name is that? That guy couldn’t lick Bob Barr’s taint.

    1. It may have been pure partisan and by accident but what a complete dope “it’s OK they did at night” Garland is.

      Good move Mitch

  26. Bill Barr,sorry.

  27. Well they’ve subverted 1A so on to 2A. But cheers “no more mean tweets”.

  28. I like how it stands innocent until proven on its head.
    After they Swat you, you get to try to prove you are NOT a threat.
    Proving a negative is difficult or impossible.

    I see lots of angry relatives using this law.
    And unsuspecting “respondents” and their dogs getti
    With no consequences.

    1. getting shot.

  29. I don’t think it should be any of the government’s business if someone wants to kill themselves.

Please to post comments

Comments are closed.