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Emergency Confiscation is Easy Target in New Gun Control Congress

Opponents warn that "red flag" orders can be abused and violate due process. So why are they attracting Republican support?

After what one family member cryptically called “family being family,” 60-year-old Gary Willis fell dead from a gunshot on the doorstep of their Maryland home, which he shared with a host of siblings, a niece and her son, and a grandmother.

Michele Willis, who grew up in the house, said her uncle Gary “likes to speak his mind,” but “wouldn’t hurt anybody.”

But it was a tussle with police officers on his doorstep at the break of dawn on November 5 that ultimately killed him. What they were fighting over? His gun.

Police say they were at the home to issue an emergency protection or “red flag” order to temporarily seize Willis’s legal firearms. The state law, which went into effect on October 1, allows police, health care officials, spouses, family, and those a person might be dating and/or cohabiting with to petition the court to take away an individual’s guns if they believe he is a danger to himself or others.

Willis reportedly opened the door with a gun in his hand. According to The Baltimore Sun, he put the weapon down on a side table while he spoke with the cops. He then “became irate” when police tried to issue the order and picked it up again. One of the officers tried to take the gun and “a fight ensued,” police said in a statement. The gun went off in the struggle—not hitting anyone—and the other officer fatally shot Willis. Neither officer was injured.

Willis’s niece said she “was dumbfounded” by the course of events. While she might know who had petitioned to have her uncle’s gun taken away, no one else does, because in Maryland, such orders are sealed.

Willis would have been able to contest the order, presenting evidence in a hearing to prove he wasn’t unfit after the fact. But he’ll never get the chance now because he is dead.

Gun control advocates are hailing the passage of red flag orders across the country as the best commonsense legislation since Nicholas Cruz shot 17 high school students in Parkland, Florida, on February 14. Reports indicate that police had been warned on numerous occasions about Cruz’s repeated threats of gun violence, but for whatever reason they did not arrest him (which would have prevented him from possessing a firearm) before the massacre.

Since March, Florida and several states have passed red flag bills, bringing the total to 14 including the District of Columbia. Several Republican-majority legislatures have thwarted similar efforts in their states. But it may not matter. Armed with a new majority in the House of Representatives and seeming bipartisan support in the Senate, Democrats are closer than ever to passing new gun control legislation and federal “extreme risk protection orders” are the most likely to succeed in the next session. Why? Because prominent Republicans in the Senate, specifically Senators Lindsey Graham and Marco Rubio, are already on record with their own bills, adding to popular Democratic proposals in both houses.

“The Emergency Risk Protection Order is designed to fill a gap in current law,” Graham said upon introducing the bill with Democratic Senator Richard Blumenthal last March. “It can be utilized when an individual has moved into crisis, but has not yet committed a crime.”

“The bill we introduce today is a starting point,” Graham continued. “It’s the place where we begin a long-overdue discussion about firearms and mental health. But we must start.”

Nevertheless, a number of gun rights advocates are sounding the alarm. They say these laws violate constitutional due process protections, not to mention the Second Amendment right to own guns in the first place. Every state has a slight variation in standards, but in general these confiscation laws allow courts to issue emergency ex-parte orders based on the lowest “reasonable cause” evidence that the subject is an immediate danger to himself or others. This is typically issued with a search warrant, and does not allow the subject time to see or refute the charges, either with or without a lawyer present. The police simply show up at your door, which could mean a SWAT team in the middle of the night. While laws vary across states, the gun owner is guaranteed a hearing after so many days or weeks following the confiscation to contest the order and have his firearms returned.

“There are huge problems of due process—you’re having your constitutional rights taken away with no opportunity to present your side of the case or the facts,” said Dave Kopel, who teaches constitutional law at the University of Denver and serves as research director of the libertarian Independence Institute. He supports the red flag laws “in concept” but not how most of them are currently written.

“The cops show up at your door to take your guns, in many cases I’m sure with ‘no-knock warrants,’ which are inherently violent and increase the risk of both the public and the officers’ safety,” he said in an interview with TAC. “This could be avoided if you give people a fair hearing and notice.”

Mike Hammond, legislative counsel for Gun Owners of America, notes that most of these orders are issued ex-parte, without notice. And expect the judges to sign off on most if not all of them: “When you are the only guys in the room you can get the judge to sign a ham sandwich. This is what we call the star chamber,” Hammond said.

Bottom line, when faced with a petition, it would be a hard sell for a judge, particularly in today’s climate, not to sign such a warrant, even if the definition of “dangerous” is fungible and different for every state (some include alcohol or substance abuse). If the subject turns out not to be a threat, no one will ever know, but if they do, the judge will get the blame.

Getting your guns back is a tougher prospect, according to Hammond, because not everyone will have the resources, time, and wherewithal to fight the court’s decision. “This notion that you can go in there two or three weeks later for a hearing, find a lawyer to go court, and convince a judge he made a mistake, is a chimera: it never happens.”

Hammond pointed to the more than 167,000 veterans who have been red flagged in the federal background check system and are prevented from purchasing guns because the VA has deemed them “mentally incompetent” without due process. The House—but not the Senate—passed bills to restore their rights in 2017. They are still waiting.

Critics are also concerned that, because several states allow people beyond police and family to petition the court—ex-spouses, boyfriends and girlfriends—the law might encourage false claims and anti-gun snitching in today’s hyper-“say something, see something” culture. While some of the state and pending federal laws penalize erroneous charges and abuse, the immediate damage to a person’s legal status and reputation could be irrevocable.

“This is a domestic retribution act, that is what they should call it,” said Dudley Brown, head of the National Association of Gun Rights, which is firmly against any red flag laws. “Anyone who has been in a divorce or custody battle should cringe when they hear this.”

Whether extreme danger protection laws actually work is a matter of faith for the most part. The earliest laws in Connecticut (1999) and California (2014) were passed after mass shootings in which the killers left bread crumb trails but police apparently did not have the authority to confiscate their guns before the crimes were committed (in both cases, the perpetrators stabbed and shot their victims).

Unfortunately, the new Connecticut law did not prevent the deadliest school shooting in state history—the 2013 elementary school massacre in Newtown, during which 28 people (mostly children) were gunned down by 20-year-old Adam Lanza. Lanza’s mother, who he also killed in the rampage, owned the guns he used, and the police had no sense that he was a threat until it was too late.

Nor did the law prevent the most recent mass shooting in Thousand Oaks, California, during which 12 people inside a bar were killed by Evan Long, a U.S. Marine Corps veteran. Reason‘s Jacob Sullum doubts it could have prevented even the Parkland massacre.

Proponents however, insist that red flag laws have prevented domestic violence and high school shootings, and especially suicides. A 2016 study in Connecticut found that for every 10 to 20 guns seized under the law, one suicide was prevented. Another claims there were 7.5 percent fewer gun suicides in Indiana in the decade following that state’s own red flag law in 2005.

Interestingly, the National Rifle Association, the country’s largest pro-firearms lobby, has not entirely opposed red flag laws. In March, the NRA said in a video that it would support emergency protection orders with the condition that they include “strong due process.” “We can prevent violence and protect the Second Amendment rights of law-abiding Americans at the same time,” promised Chris Cox, the head of NRA’s lobbying arm. Around that time, President Trump quipped after the Parkland shooting that it was time to “take the guns first, go through due process second.”

Since then, the administration has said very little, and the NRA did not return repeated requests by TAC to comment on whether it would support federal measures in the upcoming session.

Meanwhile, Michael Bloomberg’s gun control initiative poured literally millions into the 2018 midterm elections, targeting Republican gun supporters in purple districts like Congressman Mike Coffman’s with negative ads. (Coffman lost his Colorado seat.) Emboldened national campaigns, backed by Bloomberg and groups like the Giffords Law Center, are behind the drafting of new state red flag laws, and are likely to play a key role in any federal gun control wave in 2019.

But don’t be fooled, say critics. These laws, sold as prevention and mental health measures, are one more step towards thwarting the Second Amendment outright.  

“There is a tremendous potential for anti-gun officials to turn this into a much broader platform for confiscation,” warned Kopel, who is on a committee to make the laws more uniform, requiring higher standards of evidence and prior notice, with ex parte being the exception not the rule.

Hammond, who has been working on Capitol Hill for 30 years, mostly on gun issues, agreed: “I think the game is to incrementally tighten the noose until all states become California and New York,” which have the strictest laws against gun ownership in the country.

“My experience is in jurisdiction where they can do pretty much whatever they want they never reach a point where they say ‘this might be going too far,’” Hammond added.

Kelley Beaucar Vlahos is executive editor of The American Conservative. Follow her on Twitter @Vlahos_at_TAC.