The following is a video transcript.
While there is currently no red flag law in South Carolina, House Bill 3275 is pre-filed and may be addressed in the two-year term set to begin in January of 2020. The title of the bill is “Seizure of Firearms and Ammunition from a Person Posing a Risk of Imminent Personal Injury to Self or Others.” Red flag laws allow a judge to order the seizure of an individual’s firearms and ammunition under certain circumstances. This proposed legislation, which would allow the taking of firearms and ammunition, only requires a showing of probable cause before a judge that you are threat to someone else or yourself.
South Carolina Code §23-31-1210
Under South Carolina Code of Law Annotated §23-31-1210, a solicitor, assistant solicitor, or two law enforcement officers may file a verified complaint with any probate court for issuance of a warrant to seize any firearm and ammunition of a person if the solicitor, assistant solicitor, or law enforcement officers:
- Have probable cause to believe that the person poses a risk of imminent personal injury to himself or herself, or to other individuals;
- The person possesses one or more firearms; and
- The firearms are within or upon any person or property.
The judge may then issue a warrant commanding a proper law enforcement officer to enter into or upon such property, search the person and property, and take into the officer’s custody any and all firearms and ammunition. This complaint requires an independent investigation to have been conducted, and a determination made that probable cause exists and there is no reasonable alternative to prevent the person from causing imminent personal injury to themselves or others.
South Carolina Code §23-31-1220
In South Carolina, a solicitor and assistant solicitor are the prosecuting attorneys. South Carolina Code of Law Annotated §23-31-1220 allows for a complainant or complainants to file a sworn affidavit or affidavits before the probate court judge, establishing grounds to issue a warrant for seizure of any and all weapons and ammunition.
In deciding whether or not probable cause exists, the judge shall consider:
- Recent threats or acts of violence by the person directed toward other persons;
- Recent threats or acts of violence by the person directed toward himself or herself; and
- Recent acts of cruelty to animals by the person.
In evaluating whether any recent threat or acts of violence constitute probable cause to believe that the person poses a risk of imminent personal injury to himself or others, the judge may also consider other factors including, but not limited to:
- The reckless use, display, or brandishing of a firearm by the person;
- A history of the use, attempted use, or threatened use of physical force by the person against other persons;
- Prior involuntary confinement of the person in a hospital for persons with psychiatric disabilities; and
- The illegal use of controlled substances or abuse of alcohol by the person.
The standard that must be shown at the hearing is by “clear and convincing evidence.” If the judge is satisfied by clear and convincing evidence that the person is a threat to himself or herself, or others, then the judge will order the weapons and ammunition to be held by the state for a period not to exceed one year. However, if the judge is not convinced of the danger to himself or herself by clear and convincing evidence, the firearms and ammunition must be returned to the individual.
South Carolina Code §23-31-1260
Finally, South Carolina Code of Law Annotated §23-31-1260 allows a transfer of weapons and ammunition to a person eligible to possess them under state and federal law. When weapons are seized upon a written order after the hearing and requested by the person from whom they were seized, or their legal representative. Upon notification, the law enforcement agency holding the weapons and ammunition must transfer the firearms to the designated person within 10 days of the written notification.
It is important to note this is proposed legislation in light of many tragic events across the nation. It is much too early to tell how it will be received by our state legislature.
For any questions concerning red flag laws, or any other firearm-related question, please call U.S. LawShield and ask to speak to your Independent Program Attorney.