Can a judge sign an order allowing police to seize your guns without you even breaking a single law? In recent years, there has been a nationwide push for “extreme risk protective orders” or “red flag” laws specifically designed to remove firearms from people accused of engaging in conduct or making statements that others may deem “dangerous.” You’ve probably heard about them in the news recently; but what are they? What do you need to know about them, and how could they be used to take away your Second Amendment rights? Let’s look at the history of these laws and how Missouri uniquely falls on this hotly debated area.
The History of Red Flag Laws
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first one of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them. However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose to do.
Many of the states with red flag laws currently on the books allow for an enforceable court order that prevents the person from owning, purchasing, possessing, or transporting firearms and ammunition for a specified period of time. Several jurisdictions also allow the extension of these orders if the affected individual is still “deemed a threat.”
For example, under California’s red flag law (called a “gun violence restraining order”), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition initially for between one and five years, with the potential for the order to be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person may ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that the person still poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
A Californian subject to a red flag order may petition the court only once per year and ask for it to be lifted; which could entail another costly and time-consuming legal proceeding.
As of the publish date of this article, 19 states and the District of Columbia have enacted versions of red flag laws. How do things stand for Missouri?
Red Flag Laws in Missouri
Missouri does not have a red flag law currently on the books. However, keep an eye on H.B. 126 in 2021. Anti-gun advocate Rep. Ian Mackey is the sponsor of H.B. 126, which he filed before the legislative session began in the Missouri House of Representatives. This bill would establish an “Extreme Risk Protection Order” (“ERPO”) and “gun violence seizure warrants” in Missouri. It would further prohibit someone involved in domestic violence from possessing a firearm.
Under H.B. 126, any person could file a petition supported by a sworn affidavit with a court for an ERPO alleging the target of the petition poses a significant risk of personal injury to themselves or others. A judge would then decide if the ERPO should be issued against the target of the order (the “respondent”). The judge would use a broad set of standards and take into account such factors as: the respondent’s history, any use of force (which could include self-defense), domestic violence risks, mental health, substance abuse risks, and any allegations made by the petitioner. A judge would then apply the low and vague proof burden of probable cause in deciding whether an ERPO should be issued. Even simple civil matters normally require that a judge find in the prevailing party’s favor by a “more likely than not” standard. The probable cause standard is lower than the “more likely than not” standard, which would pave the way for potential widespread abuse of Second Amendment rights.
Rep. Mackey’s bill is an unabashed attempt to create red flag laws in Missouri and compromise the integrity of Missourians’ Second Amendment rights. Fortunately, the bill has little chance of passing. Missouri’s conservative legislature is protective of Second Amendment rights. Governor Parson has also publicly expressed his opposition to red flag laws. Contact your state representative and state senators to let them know how you feel about H.B. 126 and red flag laws in general.
If you have questions about red flag laws or any other gun-related legislation, call U.S. LawShield and ask to speak to your Independent Program Attorney.
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