The following is a video transcript.
Fortunately for Pennsylvanians, we do not currently have red flag laws. Red flag laws, also called “extreme risk protective orders,” allow authorities to seize the weapons of someone deemed to be a threat. This often happens without any prior court hearing or opportunity for the gun owner to be heard. These laws have previously been proposed in Pennsylvania and are almost certain to be proposed again. They are something Pennsylvania gun owners need to stay vigilant about.
These laws are concerning for a number of constitutional reasons. Not only do they affect due process as provided for in the Fifth, Sixth, and Fourteenth Amendments, but they also implicate when your home can be searched, which is the Fourth Amendment, when your weapons can be taken, protected under the Second Amendment of the United States Constitution, as well as Article I, Section 21 of the Pennsylvania Constitution, and when what you say can be enough of a perceived threat to allow seizure of your weapons, which impacts the First Amendment. Needless to say, when so many constitutional amendments are impacted, as defense attorneys, we are extremely wary of what such laws might bring.
OTHER STATES RED FLAG LAWS
In other states, red flag laws have been implemented in such a way as to provide a form of legalized “swatting,” which is where the police seize your weapons based solely on a tip from someone who does not like you. Then, the gun owner has the legally onerous task of attending court hearings and attempting to prove they are not a threat, so they can regain their Second Amendment rights. Keep in mind the Pennsylvania Mental Health Procedures Act already allows for emergency involuntary examination and treatment if a person poses an immediate danger to themselves or others. A person can be held for up to 120 hours under this law, and even longer if a hearing officer deems it necessary.
People who engage in threatening behavior can also be charged with crimes through the criminal justice system. But in the criminal justice system, the standard is “beyond a reasonable doubt.” Red flag laws generally use a civil “preponderance of the evidence” standard, which is usually much more relaxed. With red flag laws, the supposed “dangerous person” is left in the public, but they remove their firearms. Proceeding to leave the person in place, but confiscating their firearms seems suspiciously more about the firearm than actually about the individual being a threat. For these reasons, gun owners should watch red flag law proposals closely and suspiciously.
For more information on red flag laws and how they impact your rights, call U.S. LawShield and ask to speak with your Independent Program Attorney.