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 South Carolina 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 in response to 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 South Carolina?
Red Flag Laws in South Carolina
Currently there is no red flag law in effect statewide in South Carolina, despite proposals to enact such legislation in the South Carolina Legislature. In 2019 and 2020, proposed bills languished in the legislature and failed to gain any momentum toward passage.
The City of Columbia has passed several ordinances restricting gun rights, including a red flag provision. This resulted in Attorney General Wilson filing a Declaratory Judgment action on behalf of the State against the City of Columbia. The basis of the Declaratory Judgment action is that state law supersedes the City of Columbia’s ordinances pursuant to S.C. Code Ann. §23-31-510 which, in relevant part, prohibits political subdivisions from regulating the transfer, ownership, possession, or carrying of firearms or ammunition. Arguments were made on January 19, 2021, in the Richland County Circuit Court. There currently is no ruling on the issue; however, regardless of which way the Circuit Court rules, an appeal is likely, leaving the issue unresolved for the immediate future.
Potential Future Legislation in South Carolina
Although the South Carolina Legislature has at least twice failed to enact legislation regarding red flag laws, it is once again up for consideration in the South Carolina Legislature. The 2021 Red Flag bill, H. 3570, has been prefiled and remains in the South Carolina House Judiciary Committee. The red flag bill doesn’t seem to be gaining any traction toward passage in further restricting Second Amendment rights in South Carolina; however, two pro-gun bills, H. 3039 and H. 3094, seem to have support in the legislature. The Constitutional Carry Act of 2021 (H. 3039) and the Open Carry with Training Act (H. 3094) are both currently pending. On March 18, 2021, the South Carolina House of Representatives passed H. 3094, which would allow an individual to open carry in public with a CWP, and sent it to the Senate for its consideration, moving it one step closer to becoming law. H. 3039 would go even further in enhancing Second Amendment rights in South Carolina by allowing anyone who is a lawful gun owner to carry a handgun in public. As of the publication of this article, H. 3039 remains with the House Judiciary Committee.
To track the progress of these bills or any other gun rights legislation, go to www.scstatehouse.gov/legislation.php.
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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