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 Ohio 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 Ohio?
Red Flag Laws in Ohio
There are no red flag laws currently on the books in Ohio, and hopefully it will stay that way, but recent history should give Ohioans some pause. There has never really been any serious successful push for red flag legislation in Ohio. However, there has been what some considered a hybrid version fashioned by Governor Mike DeWine and Lieutenant Governor Jon Husted and put forth in Columbus in the last legislative session. SB 221, or as it was otherwise called the “STRONG Ohio” bill, was crafted in reaction to the shooting incident in Dayton, Ohio, in August 2019. It was hotly debated for over two years before it finally died at the end of the 2020 calendar year without successfully being passed. While not necessarily “red flag” in purest form, it encompassed, to a certain degree, a watered-down version of such laws (seeking, for instance, to expand the exceptions to the patient doctor privilege). This concept draws from the philosophy of “yellow flag” laws, and would have given a much wider berth for the authorities to gain access to medical records and then use those records to find grounds for an individual’s guns being seized. Another section of the bill called for “voluntary” background checks for private sales, which in effect were structured to force private sellers to do the background check or face significant criminal penalties if determined “negligent” in not doing so.
Regardless of the fact that this legislation ultimately failed, it is a reminder that the push for red flag laws, or at least some form of them, will likely continue in Ohio by those seeking greater control over our gun rights.
Potential Future Legislation in Ohio
Fortunately, there are no current versions of red flag laws being debated in the state legislature at this time. That being said, there are of course plenty of concerning bills already submitted for consideration since the opening of the new legislative session in January 2021. While not an exhaustive list, some to keep our eye on are:
- HB 38, which seeks to repeal the gains we all experienced when SB 175 was passed and signed into law last year doing away with the duty to retreat in Ohio;
- SB 76, which seeks to grant local governmental entities more power to pass their own laws regarding the regulation of firearms, severely undermining the existing principles of state preemption and gun law uniformity; and of course,
- SB 73 which, if passed, would extinguish our rights to privately transfer firearms by sale or gift, require that all transfers go through a licensed firearms dealer, and mandate background checks for all such transfers.
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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