Tuesday Talk*: Raising The Red Flag

I still remember the surprise when I read a post by David French promoting Red Flag Laws as the solution to gun violence.

A so-called “red flag” law fills the gaps in criminal law and the laws governing mental-health adjudications by granting standing to a defined, limited universe of people to seek temporary seizure orders — called gun-violence-restraining orders — for a gun if they can present admissible evidence that the gun’s owner is exhibiting threatening behavior.

Properly drafted, these laws can save lives while also protecting individual liberty. Improperly drafted, they grant the state an overly broad tool that can be systematically abused to deprive disfavored citizens of a fundamental constitutional right.

On the one hand, what is the probability that the laws will be improperly drafted, or even if well-drafted, improperly executed? French offers a short list of elements that he proposes would make Red Flag laws workable. Others disagree. Still others question the underlying premise that even elements that minimize the unconstitutionality of a law that will have a dubious positive impact and be a significant disincentive for people to seek mental health care are sufficient justification to try red flag laws,

Mark Bennett, who might have a more intimate relationship with firearms than me, runs though the myriad constitutional issues arising from Red Flag Laws. For example:

There is a word for an order to seize property: a search warrant. The Fourth Amendment provides, “no Warrants shall issue, but upon probable cause.” An ERPO is a search warrant, and “photos of guns and cryptic messages” are not probable cause.

Could any order allowing police to seize guns satisfy the Fourth Amendment?

Classically, probable cause for a search warrant is evidence information sufficient to warrant a prudent person’s belief that 1) evidence of a crime, or 2) contraband will be found in a search.

An ERPO is not about evidence of a crime. Presumably the respondent has not yet committed a crime with the gun (or the police would be getting a search warrant).

Likewise, the gun is presumably not contraband before the ERPO issues. But then the ERPO issues, and the respondent is ordered to surrender the gun. If he does not do so, is it contraband?

This comes atop the more and less obvious constitutional defects such as seizure first, hearing later, and that the “evidence” supporting the complaint of danger will come from photos of guns and cryptic messages on social media, which is otherwise protected by the First Amendment such that the exercise of one right can’t be used to undermine another. Bennett parses the claims and raises the questions that need raising.

But as many have argued, and it’s an argument with a strong emotional appeal particularly to those of us who are not comfortable with people with guns, what of mass murders, particularly school shootings? Are these not sufficiently horrific to take action, even if it involved some compromises to the assertion of rights? It seems impossible for any sane person not to find the murders of children too terrible to suffer, and if that’s the case, then how can we not do anything to prevent it?

Are Red Flag laws, or as they’re sometimes technically called, Extreme Risk Protection Orders, the solution? Are they the best answer we have, even if they’re imperfect? That they impact constitutional rights is obvious, but do they nonetheless offer a compromise we can live with? If we stand firm as principled pedants, what about the people who are killed in mass murders, school shootings? Do you want to tell parents that it’s a shame about their beautiful child, but constitutional rights, you know?

Whether you favor different solutions isn’t the issue here. Red flag laws have gained significant traction as one of the compromises that people can live with. Can they? Should they?

*Tuesday Talk rules apply.

42 thoughts on “Tuesday Talk*: Raising The Red Flag

  1. JF

    The arguments for and against Stop and Frisk seem to align pretty closely to these Red Flag proposals.

    1. Mike

      I was thinking this as well. Is there any research out there showing a disproportionate use on poor or minorities from current red flag laws?

      There is that fine line in which just because a law could be abused doesn’t mean it currently is. Not sure if that’s good or bad with red flag proposals.

  2. DaveL

    Bennett is correct that an ERPO essentially boils down to a search warrant, albeit a search warrant not premised upon probable cause, or even a specific crime. While many are concentrating on the implications this has for 2nd Amendment rights, I see another way they could be abused.

    It’s generally the case that if evidence of a crime found incidentally to a lawful search for some other thing, that evidence is admissible in court. Red Flag laws could be used to provide a shortcut around search warrants in the prosecution of other crimes, especially low-level drug dealers. Waving a gun around on TikTok? Not probable cause on its own, but maybe enough for an ERPO from a sympathetic judge. So they get to search your house, and if they find drugs and cash, well, that’s just gravy.

  3. Hal

    Scott,

    You wrote, “This comes atop the more and less obvious constitutional defects such as seizure first, hearing later, and that the “evidence” supporting the complaint of danger will come from photos of guns and cryptic messages on social media, which is otherwise protected by the First Amendment such that the exercise of one right can’t be used to undermine another. Bennett parses the claims SCOTUS and raises the questions that need raising.”

    IANAL, but it seems to me that RFLs clearly violate the 2nd, 4th, and 5th Amendments and implicate the 1st and 14th. Given the current SCOTUS make up, it seems decidedly unlikely that any such laws will pass challenge. Does it make sense to pass such laws only to see them ruled unconstitutional? Doesn’t this serve to further discredit the institutions of both Congress and the court?

    You also asked, “But as many have argued, and it’s an argument with a strong emotional appeal particularly to those of us who are not comfortable with people with guns, what of mass murders, particularly school shootings? Are these not sufficiently horrific to take action, even if it involved some compromises to the assertion of rights? It seems impossible for any sane person not to find the murders of children too terrible to suffer, and if that’s the case, then how can we not do anything to prevent it?’

    I was reminded of the William Pitt comment, “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

    You often ridicule the reflexive actions/ rhetoric of those who proclaim “Something must be done! This is something.”, yet it seems to me that you’re falling into that same trap here.

    Is there any evidence to suggest that RFLs would prevent/ reduce mass shootings? There seems to be some evidence they reduce suicides, but I’m not aware of anything to suggest that they’ve stopped a mass shooting. Mass shootings are unusually rare events and it would be hard to show a statistical reduction, but in the absence of such clear evidence trampling fundamental rights seems decidedly ill advised (especially given, as Mssr. Bennett points out, the likelihood that RFLs themselves will lead to violence).

    Finally, it’s often implied that those of us who are gun owners are callous and uncaring about the carnage caused by mass shootings and other gun violence, and I think I caught a whiff of that here. I can’t speak for others, but I know that I’m sickened by these atrocities. I’ve had nightmares and lost sleep over them, i just don’t believe that RFLs, or many other “gun control” measures, are reasonable solutions.

    1. Sgt. Schultz

      Hal,

      The reason you see Scott “falling into the same trap” is because he raises the trap, recognizing it as such. If he was actually falling into the trap, he wouldn’t point it out.

      1. Hal

        @ Sarge,

        Upon rereading Scott’s post, I think you’re right. I’d originally read the questions as Scott’s, while I now think he was voicing the the thoughts/ questions of others. Language is inherently ambiguous and this wasn’t entirely clear, still, knowing Scott I should have recognized what he was doing.

        @ Scott,

        My apologies.

        You’re phobia of ‘tummy rubs” notwithstanding, I trust you know from what I’ve said here and in our private correspondence that I hold you/ your writing in extremely high regard. You’ve caused me to reflect on a range of issues that I’d little, if any, thought to prev’ly and caused me to question my assumptions on a number of issues that I’d thought I understood thoroughly.

        Perhaps only my father, a couple of teachers when i was younger, and having a mixed race girlfriend have had as profound an impact upon my thinking/ rethinking my way of viewing the world.

        Yeah, it’s a tummy rub, just “Suck it up, Buttercup”!

    2. Paleo

      What are these things you speak of, these “amendments”? Are these rules that our leaders are supposed to comply with? You say they swear to honor them when they take office?

      I think you might be mistaken. These RF laws and civil asset forfeiture and so on suggest that you are. Just yesterday the Senate sent a letter to Google signed by 21 Democratic senators (>40% of their caucus) demanding that Google suppress the speech of pro-life organizations. The White House is on a “disinformation” jihad to suppress the speech of their opponents. The governor of Florida is gleefully punishing every organization that expresses opinions contrary to his.

      It looks good on tv when they put their hands on a bible and swear to defend the constitution, but I think the judge must let them keep the other hand behind their backs with their fingers crossed.

  4. Guitardave

    …so, its a sort-of pre-warrent?…one of those, “theres-somithing-not-quite-right-with-that-boy” warrants?

  5. Mike V.

    Seems to me that if a person is that much a risk, law enforcement should be able to take him/her/them for an emergency psychiatric evaluation and possibly a commitment to a mental health facility. that would make them a prohibited person anyway and their family could take their firearms for safekeeping.

    In law enforcement, we run into this with families of dementia/Alzheimer’s patients. We suggest a family member take them to lunch and the rest of the family come get the guns while they are out eating. That has worked out well.

    1. Michael Watson

      Have you encountered situations where (for lack of a better phrase) someone has approached you with a “red flag” type of concern? If so, how does the approach differ from the dementia/Alzheimer’s scenario you outlined?

  6. Sgt. Schultz

    While I think David French is an excellent writer, I’ve never been impressed with the depth of his thinking. Not that he’s dumb, but that he’s not quite as thoughtful as his writing suggests. This is one instance where his shortcomings are fairly apparent.

  7. Hunting Guy

    I want whoever passes these laws to be the ones knocking on the doors and saying, “We’re here to get your guns.”

    I guarantee a bunch of them will be met with double ought buck and various calibers of hot lead.

    1. Hal

      This is one of the things that costs me sleep. I think RFLs are not just foolish, as in unwise, but foolhardy, as in likely to lead to violence/ loss of life.

      I live in VT in a rather liberal part of the state, a “blue bubble”, and often find myself in discussion w/ people who support RFLs and “assault weapon” bans. In order to get along w/ my neighbors, I usually try to avoid expressing my own opinion and instead ask that they hop on wikipedia (NOT a definitive source, I know) and look up “2nd Amendment Sanctuary” and google the 2017 Pew study that indicates that > 20% of Americans feel the “right to keep and bear arms” is “essential to their liberty”.

      While few bother to do so, and many of those who do seem to think something along the lines of “I’d no idea these delusional beliefs were so widely held’, a few recognize that it doesn’t matter whether one agrees with, or finds these beliefs wholly unreasonable, dismissing them is foolhardy.

      I’m hoping that when SCOTUS decides Bruen, they’ll say the 2nd Amendment should be treated like any other fundamental right rule that “strict scrutiny” is the appropriate standard of review. If that happens, it is my profound (and probably naive) hope that this will make us abandon most “gun control” measures, and actually address the root causes of gun violence. If RFLs are allowed, and people like Beto O’Rourke and others keep insisting “Hell yes, we’re going to take your AR-15s!”, we’re likely to see more, not less, violence.

  8. B. McLeod

    As we saw in Idaho, where more than one person is involved, police can drag in a whole truckload of suspected ne’er-do-wells on “suspicion of conspiracy to ___________.”

    The problem with addled shooters is they often act alone, and people can’t “conspire” with themselves, even if they have voices in their heads.

    The alternative to red flag seizures would be to watch the reported person until they come to the point of actually committing a crime. The obvious concerns are resources, losing track, and the possibility that the police intervention will come too late. However, red flag seizures are not free of similar issues, as it is quite conceivable the search will miss a gun, or that the subject will simply find another gun, or even substitute a different deadly weapon. This leaves considerable room for doubt as to whether they will really be more effective than constitutional alternatives.

    1. James

      As we saw in Idaho, the police actually arrested 31 gents for conspiracy to commit riot, pc for the arrest consisting of they were secreted in a truck in full tactical gear with riot plans helpfully written on paper. Sounds like a good arrest to me.

  9. Elpey P.

    Bonus points to whichever politician inserts the word “superpredator” into this debate.

  10. PK

    No, I don’t want to be the one to tell grieving parents that their children died and there’s nothing we can do to make sure no one else suffers such a horrific loss. As much as you mock the “something must be done” mantra, I’m fairly certain something should be done here regardless of the technicalities, which is a very unlawerly thing to say, but then children are dying. It’s not really a “think of the children” argument. It’s more of “this hurts to see so much that I’ll do anything to get it to stop even if that something runs afoul of how things have been done for a long time.”

    Yep, I’m willing to go tyrannical about this whole thing. Some rights people previously enjoyed will have to be curtailed. Sorry about that, but I’m more willing to hear complaints than screams that I can’t unhear.

    Are red flag laws “the answer”? Probably not, but then I’ve already admitted that I would go further than those even. Gun culture is a mistake along with the damn internet. If I’m the arbiter, I say gun nuts lose. And I have guns and lots of ammo and enjoy shooting for sport. Take all of it from me, please.

    Could the alternative to mass murder be even worse? I’m not sure. It’s already terrible enough to overcome any hesitation at messing it up further. How many elementary schools will it take?

    1. Anonymous Coward

      Trading your rights away for the illusion of security is a bad deal. The US actually has a low rate of firearms homicide and very few mass shootings. This is perceived as problem because it gets splashed across the news for weeks on end and used as justification for ever stricter gun control which does nothing. California has been a leader in gun control since the Mulford Act and yet still leads the country in homicides. These gun seizure laws exist solely to be abused maliciously and will fail to do anything they are claimed to do.
      “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.” Samuel Adams.

      1. PK

        Telling me it isn’t that big of a problem isn’t going to change my mind, because I disagree. An elementary school getting shot up is a big problem.

        Telling me the proposed “solutions” won’t work doesn’t change my mind either, because I’m already at resolve that they won’t work exactly as intended. If they don’t, I’ll go further until I’ve rounded every single gun in this country up. Sure, it’s impractical and some nuts will resist, but so be it. I’m a zealot. Never again do I want to see the things I’ve seen, to hear them.

        I’m happy to go home, so long as I don’t have to contemplate the murder of children anymore. I fully realize that this isn’t a rational argument I’m making, but I thought my opinion would go contrary to most of the commentariat here, which warms my contrarian heart. Also, being able to do a dash of “think of the children” is too tempting. But sincerely, I want this to never ever ever happen again and am extremely motivated to do something about it, even knowing that reflex can go awry.

        1. LY

          Sweet! So I get to kick your door in at 2:30 AM and take whatever you have in your house that I disapprove of. By your logic anything you have that I don’t like I have I can now take.

    2. B. McLeod

      There is a considerable tie here to the molly-coddling of juveniles. The Uvalde killer had engaged in several behaviors for which an adult would likely have been charged. These included threatening on the Internet to kidnap and rape girls, and making torture videos in which he tormented and killed animals. If he had been charged for those behaviors as any adult likely would have been, and if it was allowed to show of record as it would with any adult defendant, the existing background check system would have blocked his purchases. So to a degree, we are now looking at using red flags or an age-based ban (probably also constitutionally infirm) to solve a problem the system itself has created.

    3. Jake

      “How many elementary schools will it take?”

      An apt question.

      Pretending nothing can be done to protect children from the horror of mentally ill people carrying weapons designed for the battlefield is a deeply vulgar, cynical affront to reason and humanity. This is late-stage capitalism at its most distilled: Protecting the profits of the AR company, and its ilk, above all other considerations.

      May the universe have mercy on all our souls, because if there is a God as most Americans define him, he will not.

      1. Pedantic Grammar Police

        Gun laws are pretty much unrelated to school killings. If a nut wants to kill people, he can do it. Nuts who can’t get guns have used cars, knives, dynamite, etc. Nuts who really want to do a shooting instead of using another method can buy an illegal gun. Preventing law-abiding citizens from buying guns is part of an agenda that has nothing to do with safety and everything to do with tyranny. People who say otherwise are either lying or misinformed.

        What was the biggest school massacre? VA Tech, Sandy Hook? No, it was the Bath Massacre in 1927. No guns were involved.

        1. PK

          Would you accuse me of having an agenda if I said I don’t want people to have bombs or guns? Whether I’m misinformed, I’ll leave open, but I’m certainly not lying. I’ve already admitted to wanting to be a tyrant, so that accusation won’t knock me from my position that these events are too horrific to allow to continue no matter the cost.

          1. Pedantic Grammar Police

            Do you want red flag bomb laws too? Or should we just ban bomb-making materials such as fertilizer, toilet cleaner and bleach? It would be inconvenient, but there’s no limit to the inconveniences we can endure “for the children” right? Shall we have red flag knife laws? Red flag car laws? Or should we just ban those things entirely?

            1. PK

              Yes. No. Mostly. No. No. No.

              What would you tell the grieving parents? Tough luck? What about your own? Shit, there’s an empty place at the dinner table, oh well? What should I do with all these emotions? Am I unreasonable for being so horrified? Are you being a bit cavalier and callous about these things?

              I’m not ready to say nothing can be done yet.

            2. Pedantic Grammar Police

              Nothing can be done.

              I personally will not say anything to the grieving parents. i will let them grieve privately. To those who say “Something must be done!” I say that the government does not have the answer to every problem. Crazy people exist, and we have to strike a delicate balance between locking people up willy-nilly like we did before Reagan closed the nuthatches, and letting them roam the streets attacking passers-by, like we do now. Guns have nothing to do with the “crazy people” problem. Crazy people with guns provide a good excuse for tyrants who want to disarm all of us (except for their security guards of course), and for the useful idiots who believe the tyrants’ lies.

      2. PML

        Please point out to me these ” WEAPONS DESIGNED FOR THE BATTLEFIELD”!

        Having served for 26 years with the US Army I can tell you the ones you can buy in a store are not designed for the Battlefield.

        What you said is just another liberal claptrap statement.

  11. Pedantic Grammar Police

    Didn’t the Supreme Court already strike down red flag laws in Caniglia v. Strom?

    1. Pedantic Grammar Police

      Reading further into the opinion, I see that Alito mentions RF laws and says “Our decision today does not address those issues,” but it seems unlikely that they would uphold a law that allows the same conduct that they disallowed here. I suspect this is another abortion-style fake fight that will be used to allow posturing on both sides of the aisle while accomplishing nothing.

  12. James

    Based on ever evolving information, the police waited outside for ~58 minutes. Finally an off duty boarder patrol agent, using a weapon borrowed from his barber, went in. The details do not seem to be an argument for disarming the public. This will provide no comfort to the parents. What ever could?

    1. Hunting Guy

      The head of the Texas Department of Public Safety said Tuesday that Uvalde police could have stopped the mass shooting at Robb Elementary within three minutes, calling their response an “abject failure.”

      Testifying before a special Texas Senate committee hearing, Col. Steve McCraw, director of the Texas Department of Public Safety, told lawmakers that “There is compelling evidence that the law enforcement response to the attack at Robb Elementary was an abject failure and antithetical to everything we’ve learned over the last two decades since the Columbine massacre.”

      “Three minutes after the suspect entered the west building, there was a sufficient number of armed officers wearing body armor to isolate, cistract, and neutralize the subject,” he said. “The only thing stopping a hallway of dedicated officers from entering Room 111, and 112, was the on-scene commander, who decided to place the lives of officers before the lives of children.”

  13. Richard Parker

    I use to teach college re-entry courses that contained a high proportion of recently discharged veterans. Most of these were aircraft technicians who had been pushed out of the service as the local Naval Air Station had privatized most aircraft maintenance. The range of service time for my students seemed to be about 6 to 12 years.

    This was a very interesting crowd who had a range of beliefs different from my expectations. Many of them lived in fear of their wives or girl friends. There was a common fear that they could be reported as potentially threatening (true or not) at any time by their partners and that the VA (as I understood it) could seize their existing weapons and prohibit any future purchases of guns.

    Some were so paranoid about this that they spoke of refusing to enter into any regular relationships with females. There are a lot of unhappy veterans out there. I am surprised that there isn’t more violence out there from these guys.

    Luckily the 30 year old male brain seems to be fundamentally from the 16 year old male brain. Like a previous poster, I do think that the serious violations of younger people (maybe 14-18 years of age) should remain on the public record.

    I have no answers. I don’t want to anymore school shootings but I also don’t want to see this country end up like Australia with the people essentially disarmed.

  14. Hal

    PK,

    I address points that you made in a couple of places, so rather than “reply” to a specific post, I’m writing here.

    I feel strongly, as you clearly do, but have tried to make my points without any sort of personal attack, if I failed to do so, you have my sincere apology.

    You write, “An elementary school getting shot up is a big problem.” I certainly agree (and I’ve had nightmares of trying to shield a child’s body with my own), but an all out civil war is a far greater/ graver problem and I very much fear that this is what we’re risking. I’ve had nightmares over this too, dreaming of pancaked buildings like we’ve seen in Beirut, Sarajevo and now in cities in Ukraine.

    One reason that I ask people to get on wikipedia and look at their map of this nation’s 2nd Amendment Sanctuaries is to get a better sense of how many people feel that the RKBA is “essential to their liberty”. It’s the majority of the country geographically and represents an enormous number of people. If Pew is right, more than fifty million people believe the RKBA is “essential to their liberty” (I believe that was the phrase they used).

    I suspect that if you were to make a Venn diagram with a circle representing those gun owners who feel the RKBA is essential, overlay it with another of those who’ve whose families have seen two generations of wage stagnation, overlay that with those who feel the 2020 election was stolen (because they literally don’t know anyone who admits to voting for Biden), overlay that with those who own “assault weapons”, and then overlay that with those who have a family history going back to at least WWII (and in many cases longer) and believe a mythos of our martial prowess defeating tyranny and shaping our world (and who now feel they’re in danger of being displaced/ replaced)… it would look like the corner of a place-mat where someone set their drink down half a dozen times.

    You write, “Sure, it’s impractical and some nuts will resist, but so be it”. There are many millions, not just a handful of nuts, who say they are willing to take up arms to defend what they see as their single most important right. If Pew is right about the number of these people, and if only ten percent of them are actually willing to take up arms and fight for this… that’s still 5,000,000 people. If one percent of them are the sort who are angry enough to go on the offensive if they feel some line has been crossed, that’s 50,000 people.

    I may be alarmist, but I can easily envision a couple of attempts to enforce RFLs turning into gun battles and some of these people then deciding “Game on!” and deciding to target cops and politicians. Remember the DC snipers or the cop who went on a rampage in LA a few years ago? Imagine a couple hundred of these happening more or less simultaneously.

    I don’t know how many people are so radicalized that they’d be willing to actually start ambushing cops and assassinating politicians, likely far fewer than pretend they would be, but it’s certainly several hundred, likely several thousand and could easily be more.

    I don’t know whether you’re being somewhat “tongue in cheek” when you describe yourself as “a tyrant”, but you might want to consider that John Adams, who’d presided over the Senate when they were debating and ratifying the Bill of Rights, wrote then, “Arms in the hands of individual citizens may be used at individual discretion for the defense of the country, the over-throw of tyranny, or in private self-defense.” There are a great many people who see infringements on the RKBA as tyranny and worth fighting for. You are free to disagree, to deride this as foolishness, declare their thinking callous and cruel, but dismissing it is dangerous and foolhardy.

    Thus endeth the rant.

    1. PK

      Hey Hal. I was open that I was appealing to emotion. My aim was to mirror the zealotry of gun-loving Americans to show that some compromise, any compromise even if imperfect, is better than the alternatives. It was easy to tap into those emotions, though, and they are sincere. This stuff is just too horrible. It’s very easy to see why the reaction pops up every time we suffer another mass shooting. I mostly agree with you, in other words, but am holding out hope that some compromise leaving everyone unhappy can be reached.

      1. LocoYokel

        Funny thing about “compromise” it only seems to ever go one way. It’s always “compromise and give up some of your rights”, never compromise and we’ll give some of them back. And once a little ground is lost it’s the next “why can’t you just compromise and give up a little more”.

        Take your “compromise” and shove it up your ass, I’m keeping my guns.

  15. Chaswjd

    While red flag laws seem to be popular these days, there are downsides. Federal law currently provides that someone who has been involuntarily committed during his or her lifetime cannot posses a firearm. While there is a provision for the Attorney General to except persons from the law, Congress has prohibited the use of federal funds for him to do so. So being involuntarily committed for being a suicidal teen after your first serious girlfriend breaks up with you becomes a lifetime ban on owning a gun. Does this lifetime ban really increase our safety? Might it discourage people from getting the help they need?

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