Red Flag Laws: The Retrograde “Justice” of America’s 21st Century Salem Witch Trials

Abstract

“Red flag laws” authorize a state civil court, upon commencement petition by a law enforcement officer or private citizen, to immediately issue an ex parte warrant (a) directing law enforcement officers to seize all firearms and ammunition owned or otherwise possessed by the respondent named in the petition, and (b) enjoining the respondent from possessing firearms or ammunition on pain of further seizures and severe criminal penalties until a final hearing. These laws are unique and particularly constitutionally noxious in that they simultaneously threaten the Second and Fourth Amendment rights of law-abiding citizens; indeed, red flag laws frequently give rise to judicially sanctioned yet objectively unreasonable searches and seizures of citizens’ homes and firearms, respectively. The result, all too often, is firearms confiscation without anything even remotely resembling due process. It must also be recognized that red flag laws are unnecessary because they are redundant with all fifty states’ civil commitment laws that allow a judge to order confinement of dangerous individuals, as well as lesser remedies such as gun confiscation. These commitment laws apply to anyone who may harm others, not just gun owners.

While states may have the authority to establish public safety laws under their general police powers, red flag laws are very likely unconstitutional under New York State Rifle & Pistol Ass’n Inc. v. Bruen, 142 S. Ct. 2111 (2022), since they are without any historical analogue. Additionally, any federal red flag system, or federal mandate that states establish such a system, would be blatantly unconstitutional, as the Constitution provides no federal authority for such a system or mandate.

To be clear, it is this author’s position that red flag laws should not exist. However, if someone serious about protecting due process rights and civil liberties were to even consider supporting red flag laws, notwithstanding the inherent constitutional and structural defects of such laws, then there are numerous important features that must be considered and adopted, including the following:

First, the state should have to provide respondents (those who are the subject of red flag petitions) with a competent lawyer. If not, then people of ordinary means will be totally defenseless to fight off baseless accusations, and the result will be people will have to abandon their fundamental rights simply because they cannot afford counsel.

Second, only law enforcement should have the authority to file a red flag petition. If an individual thinks it is necessary to pursue a red flag order, he or she should have to go to the police first to get them to bring the matter to court.

Third, no red flag orders should issue without proof beyond a reasonable doubt or at minimum by clear and convincing evidence.

Fourth, respondents should be given notice and allowed to attend the red flag hearing and contest the petition before any order is issued.

Fifth, the criteria used to assess respondents should encompass clear, objective metrics that relate to a propensity for, or likelihood of, violence.

Sixth, the state should have to pay for any expert fees for a respondent to contest the accusations. Medical and mental health professionals testifying are not cheap and will spend many hours combing through records, preparing for a hearing, and meeting with the respondent.

Seventh, red flag proceedings should only occur in the county in which a respondent resides.

Eighth, judges should be required to provide written opinions justifying both the issuance or denial of red flag orders.

Ninth, if anyone makes a false accusation in connection with one of these laws, that should be a crime and should create a civil cause of action that the respondent victim can pursue against the accuser. If we do not have this sort of protection, there will be innumerable innocent people who will have their gun rights taken without recourse.

Tenth, there must be a mechanism to ensure expeditious restoration of firearms to a respondent who has been falsely accused. The best way to do this is to allow a respondent subject to a red flag order to turn firearms over to a gun dealer (FFL), attorney, or other trustworthy private actor rather than the police; and to allow exonerated respondents to automatically receive their guns back within a fixed period of time of a few weeks. That way, judges cannot rope-a-dope a respondent for months or years as the legal process drags on.