Tuesday Talk*: Raising The Red Flag

I still remember the surprise when I read a post by David French promoting Red Flag Laws as the solution to gun violence.

A so-called “red flag” law fills the gaps in criminal law and the laws governing mental-health adjudications by granting standing to a defined, limited universe of people to seek temporary seizure orders — called gun-violence-restraining orders — for a gun if they can present admissible evidence that the gun’s owner is exhibiting threatening behavior.

Properly drafted, these laws can save lives while also protecting individual liberty. Improperly drafted, they grant the state an overly broad tool that can be systematically abused to deprive disfavored citizens of a fundamental constitutional right.

On the one hand, what is the probability that the laws will be improperly drafted, or even if well-drafted, improperly executed? French offers a short list of elements that he proposes would make Red Flag laws workable. Others disagree. Still others question the underlying premise that even elements that minimize the unconstitutionality of a law that will have a dubious positive impact and be a significant disincentive for people to seek mental health care,

Mark Bennett, who might have a more intimate relationship with firearms than me, runs though the myriad constitutional issues arising from Red Flag Laws. For example:

There is a word for an order to seize property: a search warrant. The Fourth Amendment provides, “no Warrants shall issue, but upon probable cause.” An ERPO is a search warrant, and “photos of guns and cryptic messages” are not probable cause.

Could any order allowing police to seize guns satisfy the Fourth Amendment?

Classically, probable cause for a search warrant is evidence information sufficient to warrant a prudent person’s belief that 1) evidence of a crime, or 2) contraband will be found in a search.

An ERPO is not about evidence of a crime. Presumably the respondent has not yet committed a crime with the gun (or the police would be getting a search warrant).

Likewise, the gun is presumably not contraband before the ERPO issues. But then the ERPO issues, and the respondent is ordered to surrender the gun. If he does not do so, is it contraband?

This comes atop the more and less obvious constitutional defects such as seizure first, hearing later, and that the “evidence” supporting the complaint of danger will come from photos of guns and cryptic messages on social media, which is otherwise protected by the First Amendment such that the exercise of one right can’t be used to undermine another. Bennett parses the claims and raises the questions that need raising.

But as many have argued, and it’s an argument with a strong emotional appeal particularly to those of us who are not comfortable with people with guns, what of mass murders, particularly school shootings? Are these not sufficiently horrific to take action, even if it involved some compromises to the assertion of rights? It seems impossible for any sane person not to find the murders of children too terrible to suffer, and if that’s the case, then how can we not do anything to prevent it?

Are Red Flag laws, or as they’re sometimes technically called, Extreme Risk Protection Orders, the solution? Are they the best answer we have, even if they’re imperfect? That they impact constitutional rights is obvious, but do they nonetheless offer a compromise we can live with? If we stand firm as principled pedants, what about the people who are killed in mass murders, school shootings? Do you want to tell parents that it’s a shame about their beautiful child, but constitutional rights, you know?

Whether you favor different solutions isn’t the issue here. Red flag laws have gained significant traction as one of the compromises that people can live with. Can they? Should they?

*Tuesday Talk rules apply.