Military and Police

Red Flag Laws and Your Gun Rights

So, this is where we’ve gotten to in America. Gun owners have become so suspicious of leftwing government, and rightly so, that even when a gun law comes along that may have a legitimate purpose, those who choose to own firearms have to fear political leaders will misuse the law to circumvent the Second Amendment.

Of course, those who hesitate to support these “common sense laws” because of these fears of abuse are accused of being “irresponsible” and wanting suicidal individuals and homicidal maniacs to have guns. And what happens when, aside from the fears the law will be politically abused, there’s evidence the law just doesn’t make a difference in firearm suicide and violence statistics?

Red Flag laws, which include court-issued Extreme Risk Protective Orders (ERPO), are those laws that allow authorities to confiscate firearms from “dangerous” people. I think everyone can see how law enforcement temporarily removing a firearm from someone who is in the midst of a violent or suicidal crisis can be a good thing.

Currently, 13 states have these laws: Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, Florida, Indiana, Illinois,Washington, Oregon, and California. One thing throws up an instant red flag for me: Most of these Red Flag laws are being used in blue states.

Now, misuse could be an argument used against almost any law. But what happens when the law in question aligns so perfectly with a political goal of the left—disarming people? Here, we’re talking about disarming observed dangerous or suicidal people who have access to firearms. But what about when the person may not be violent or suicidal, as the complainant reports?

As the name indicates, Red Flag laws give the criminal justice system the authority to disarm gun owners who are “red flagged” for witnessed or alleged violent or suicidal comments or actions. Law enforcement, family members, and housemates can accuse a person of behaviors or other indicators that constitute they may be a danger to themselves or others. If the officer or court agrees, the initial confiscation is temporary with a court hearing to be held within a prescribed time, often 14 days. Generally, a judge can make the order “permanent” for another prescribed term, depending on the specific state statute.

But what constitutes dangerous words or behaviors, and what evidence is necessary to confiscate a person’s gun(s)? Shouldn’t we consider that it’s also dangerous to confiscate a person’s personal property, thereby reducing their effective ability for self-defense because of an alleged possibility the person will commit a future violent crime or suicide? Remember, when talking about confiscating guns, we’re talking about taking away two constitutional rights under the Second and Fifth Amendments.

Aside from Red Flag laws, other tactics on the anti-gun left are growing more dark-hearted in their endless attempt to disarm Americans. When the left can’t obtain an outright ban and gun confiscation (which House Speaker Nancy Pelosi and her cohorts are trying to do as we speak), they attempt (and too often succeed) in passing laws and implementing policies that indirectly target guns.

They decrease the number of federal firearms licenses issued, increase sales and purchasing regulations, make concealed carry permits harder to get, and do whatever else they can to infringe on an American’s right to keep and bear arms. Things such as enacting special taxes on guns and ammo sales, the ever-popular banning “high capacity” magazines, “assault weapons,” and abusing Red Flag laws, which are ripe for misapplication by anti-gun zealots in government.

Of course, we want to disarm dangerous people. Whether dangerous by criminal behavior or by mental deficiency makes no difference. The problem is: Are we abdicating our constitutional responsibility to assure we strictly follow due process before depriving a person of their property and gun rights?

A law enforcement officer’s observations are one thing. But does accepting, as the sole evidence for confiscating a person’s gun, a statement from a person who could have nefarious motives qualify as due process? Remember, depending on the jurisdiction, according to the law’s categories, a man or woman’s relative, ex-spouse, girlfriend, boyfriend, or housemate can make the complaint. And even if the investigating officer believes the complaint to be fraudulent, without a legitimate reason to disbelieve the complainant, he or she would have to err on taking the gun.

Think about it. We don’t take cars away from these same people even though they can also use a car to commit violent acts or even suicide. And more people have cars than guns. But while leftists don’t tend to have guns, they do have cars.

Aside from a danger of false allegations, shouldn’t we fear overzealous enforcement? I’m not talking about from individual cops who mostly support gun rights; I’m talking about anti-gun politicians, prosecutors, and superior or municipal court judges.

Just look at the overreach we see from leftist federal judges abusing their authority to interfere with President Trump’s clear executive powers. So, if Red Flag laws are misapplied due to political abuse, some ex-spouse, a former business partner, angry family member, or a housemate with a beef can report a gun owner as “dangerous,” and the authorities can disarm him or her.

In fact, by design the emphasis is toward disarmament. What cop wants to show up in the newspaper the next day as the officer who left a gun with someone who kills himself or someone else? Erring on the side of caution can become erring on the side of violating someone’s Second and Fifth Amendment rights. The left won’t care because another gun is in government’s hands instead of an American’s. In fact, they’d support the ends without caring about the means.

As I mentioned in the opening, another worry is: Do Red Flag laws actually reduce gun crimes? The Crime Prevention Research Center (CPRC), headed by Dr. John Lott Jr., just released the results of a new study conducted on the effects of Red Flag laws on violent crime and suicide. Researchers say, “we found NO evidence that these laws save lives.”

The study’s abstract reads, “Red flag laws had no significant effect on murder, suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary. There is some evidence that rape rates rise. These laws apparently do not save lives.” So, even if these types of laws make some people “feel” better, should we maintain or even expand them if they don’t work and anti-gun officials can so easily abuse them?

Researchers make another interesting point. The left is fond of saying they support sanctuary cities, counties, and states, citing the well-worn excuse that illegal immigrants will be afraid to report crime to the police for fear of being deported. Well, the CPRC makes a similar, but in this case, legitimate point: “Advocates overlook that these laws may discourage unstable individuals from seeking help, for fear of being sanctioned.” But we know the left doesn’t care about gun owners, except for how best to disarm them.

If you think abuse of these laws cannot happen, and since experience matters, I’ll use myself as an example. While this incident didn’t involve gun confiscation, it involved firearms indirectly. And the process used (abused?) in this case was similar to Red Flag laws.

This story is from back in the ’90s before most of these laws were in effect. This shows how even a staunch Second Amendment advocate can be sucked into one of these events. Remember, while I believed certain things about the event, without knowing the man’s mind, I could not know for sure whether he was suicidal, so I had to follow what I thought were overly cautious but legal orders. Here’s my best recollection of the events:

My partner and I responded with several officers to a reported “barricaded man.” A woman identifying herself as the man’s girlfriend had called 911. She reported a man was in an apartment above a business. The woman told dispatchers the man owned several guns and was suicidal.

The first officers on scene knocked on the door, but no one answered. The girlfriend provided a phone number for the man. Officers called, but he did not answer the phone either. One supervisor on the scene, a sergeant, placed officers on containment around the building and called for a hostage negotiator (a title used even if there is no hostage).

After several more attempts to call the man, whom no one had seen or heard inside the residence since we’d arrived, he finally answered the phone. The negotiator told him someone had called to report him as suicidal and armed. He told the man the police were outside and to come out to meet officers, hands empty and held over his head.

The man told the negotiator he was not suicidal and had no guns in the apartment. He said he hadn’t answered the door or phone because he’d been asleep. He said he owned some guns, but they were at his house in another city.

The man opened the door and appeared stunned to see officers surrounding the building, guns drawn. The man was cooperative, and his hands were above his head, as he walked outside. He told us the woman who called is an ex-girlfriend who was upset about their break-up several weeks back.

The man allowed officers to check his apartment where they found no guns. Out of what he called an abundance of caution a supervisor instructed my partner and me to transport the man to the hospital for a psychiatric evaluation.

This is standard procedure for suicidal people who have obviously attempted to hurt themselves or admit to police they are suicidal. However, my partner and I disagreed there was legitimate evidence this guy was suicidal. Everything pointed to the ex-girlfriend having made a false report to 911.

In fact, if the guy had answered the door right away and was as cooperative as he’d been, even allowing officers to check the apartment for firearms, we likely would not have committed him for evaluation. The delay added more suspicion to the call. The most we could do for him was allow the man to “voluntarily” check himself in to the psych ward rather than us involuntarily committing him.

While he chose to “voluntarily” commit himself, he and we knew he had no real options. This would also create a mental health system record. A mental health contact could affect his future ability to own firearms. Although his commitment was “voluntary,” he knew better. And prosecutors’ offices, at least in my experience, rarely file cases of false reporting. She lies, and the man could lose his gun rights. Works for the left.

This is how law enforcement officers can get sucked into abusing what might otherwise be a “good” law. In the supervisor’s defense, “on paper,” just because the man said he was not suicidal, doesn’t mean he was not. People lie to cops all the time—no, really. And just because we found no guns doesn’t mean there wasn’t one hidden somewhere in the apartment. The search was cursory and not exhaustive, considering the circumstances. Even the complainant hadn’t alleged the man was a danger to others, just to himself. And if he had wanted to kill himself, he didn’t need a gun to do it. There’s a really high bridge just down the road where many have committed suicide.

Also, just because the man said he’d been asleep, and just because we believed him, doesn’t prove he was actually sleeping. And telling us he wasn’t suicidal doesn’t prove he hadn’t earlier told his ex-girlfriend he was. I responded to similar incidents before and after that call. If the person told me he or she is not suicidal, and there’s no evidence to support it other than another person’s word on the phone, I would not take the person in for an “involuntary” mental health evaluation. Before Red Flag laws, we erred on the side of liberty.

I bring up this incident because it’s the type of situation gun-grabbers would use as an excuse to use the courts and police to disarm this man with Red Flag laws. Because of that ex-girlfriend’s likely false report and because of an overcautious police supervisor (but can you blame him in an anti-cop, anti-gun political atmosphere?), from that moment on, that man had a “mental health” contact history, which could affect his inalienable right to keep and bear arms.

Anti-gun officials could see this contact as a “red flag” regarding future behavior—”Minority Report,” anyone. It’s what would have anti-gun activists not only on the hunt to prevent this man from buying firearms and ammunition but also to confiscate guns he already owns by court order. And it’s quite possible, and we believed probable, the guy in our case had done nothing wrong other than make a poor choice of girlfriend.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Steve Pomper

Steve Pomper is an OpsLens contributor, a retired Seattle police officer, and the author of four non-fiction books, including De-Policing America: A Street Cop’s View of the Anti-Police State. You can read a review of this new book in Front Page Magazine and listen to an interview with Steve on the Joe Pags Show. Steve was a field-training officer, on the East Precinct Community Police Team, and served his entire career on the streets. He has a BA in English Language and Literature. He enjoys spending time with his kids and grand-kids. He loves to ride his Harley, hike, and cycle with his wife, Jody, a retired firefighter. You can find out more about Steve and send him comments and questions at www.stevepomper.com.

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