The Fallacy of Red Flag Laws

Democrats are using the shootings in El Paso and Dayton to call for more gun control. Regrettably, Republican leaders are joining the call. From President Trump, to U.S. Senate Judiciary Chairman, Lindsey Graham (R-S.C.) to U.S. Senator Pat Toomey (R-Pa.), Republican leaders are calling for the enactment of so-called “Red Flag” laws. Sadly, our political leaders are quick to give up our constitutional rights just to look like they're doing something to prevent the next mass shooting. Yet, even with more gun control, the shootings will continue; but our constitutional rights will be gone. In response to the latest shootings, the president declared, “We must make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do, those firearms can be taken through rapid due process. That is why I have called for red flag laws...” Although these laws may be well-intentioned, they’ll be disastrous to our rights, subject to abuse, and ineffective in addressing the real problem.

Nevertheless, State Sen. Tom Killion and State Rep. Todd Stephens, both Republicans, have proposed our own Red Flag law. Through this bill, a law enforcement officer or “family or household member” can petition the court, without your knowledge, claiming you present an extreme risk of harm to yourself or others. The judge will review the petition, again, without your knowledge or involvement, and if he finds that you’re an extreme risk, he’ll issue an Interim Extreme Risk Order compelling you to relinquish your firearms and prohibiting you from possessing same. (By the way, you can rest uneasy because the definition of “family or household members” includes your ex-wives, ex-girlfriends and your mother-in-law! Any chance this bill, like its sister-law, the Protection From Abuse Act, will be abused in divorce, custody, or property dispute cases?) Once the order is issued, and still without notice to you, the sheriff will arrive at your door and “request” that you immediately relinquish your firearms. (Actually, the law gives you 24 hours to relinquish, otherwise you’ll be charged with a crime and hauled off to jail). Either way, it’s a recipe for disaster. In Maryland, a man was recently shot and killed by law enforcement officers who attempted to confiscate his firearms via an extreme risk order. Only when the sheriff arrives are you notified of what already happened to you in court. The entire process involved in the Interim Extreme Risk Protection Order violates your right to due process and several other constitutional rights. You do have a right to a hearing within 10 days. But it’s unlikely the judge will reverse himself and more likely he’ll enter the final order, which can last for up to one year -- all the while you’re dispossessed of your firearms and prohibited from exercising your Second Amendment rights. Furthermore, in deciding to enter either order the judge may look back over the past two years and consider nonviolent conduct such as, “abuse of controlled substances or alcohol,” whatever that means, “any criminal conviction that involves controlled substances or alcohol,” which includes DUI and possession of small amount of marijuana, and a “recent acquisition of a firearm.” So even exercising your Second Amendment rights can be used to deny you the same. In addition to its constitutional infirmities, this Red Flag bill does not do much, if anything, to prevent the next mass shooting. Like all gun control laws, it assumes the gun is the problem instead of the psychotic person ready to pull the trigger. As President Trump correctly stated, “Mental illness and hatred pull the trigger. Not the gun.” A review of the most notorious mass shooters reveals that they all suffered from severe mental disorders; they all should have been institutionalized. Although a Red Flag law may have taken away their guns, it would have left them free to live among us. Is it possible the next mass shooter, even though subject to an extreme risk order, might stumble upon one of the 400 million firearms in circulation in America? Almost as an afterthought, this Red Flag bill does permit judges to consider using the Mental Health Procedures Act to seek the involuntary commitment of a person deemed to be an extreme risk. But judges, law enforcement, county mental health officers and family and household members already have that power. And patients in mental health facilities do not have access to firearms. Wouldn’t it be safer and more effective to focus law enforcement and judicial resources on removing the next potential mass shooter from our community and placing him in a mental health facility where he’ll receive the treatment he needs, instead of using Red Flag laws filed by ex-wives or ex-girlfriends to disarm those with DUI and drug convictions? Inpatient mental health treatment for those who present a clear and present danger to themselves and others should be the focus of our efforts. Yet, it seems that those in favor of these Red Flag laws are more concerned about confiscating firearms than preventing the next mass shooting. Marc A. Scaringi, Esq. Mr. Scaringi is an attorney in Harrisburg, Pennsylvania, a radio talk show host of “The Marc Scaringi Show” on WHP 580AM and I Heart Radio and a Donald J. Trump endorsed Delegate to the 2016 Republican National Convention. Follow Marc on Twitter @MarcScaringi