In the past, we have examined the history of red flag laws, the arguments both for and against the adoption of red flags laws, and the studies that evaluated how effective the adoption of such laws has been in those states. This week, we are addressing the intersection of due process rights and red flag laws. This blog is not the first nor will it be last time someone has considered the intersection of due process rights and red flag laws. The NRA has evaluated proposed red flags laws in Rhode Island, Utah, and Maryland and opposed those laws on the issue of due process.[1] 

In order to help you evaluate whether any red flag law in Michigan violates due process, an understanding of due process is needed. First, there are two types of due process: substantive and procedural. Substantive due process issues look at how the states exercise their power to regulate certain activities, such as freedom of expression or the freedom of association. Procedural due process issues require an analysis of the procedure required by the Constitution when the states seek to deprive citizens of life, liberty, or property.

In Boddie v Connecticut, 401 US 371, 379 (1971), the United States Supreme Court ruled that due process requires “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” In Mathews v Eldridge, 424 US 319, 333 (1976), the Court recognized that it “has consistently held that some form of hearing is required before an individual is finally deprived of a property interest.” The Mathews Court stated that “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965)). This rule has limited exceptions that are triggered only by a true exigency.

In the history of the United States Supreme Court, few circumstances have qualified as exigent ones.  In Bowles v Willingham, 321 US 503,521 (1944), the Court permitted the government to unilaterally set rents in defense-area housing accommodations during World War II. In N Am Cold Storage Co v City of Chicago, 211 US 306, 320, the Court permitted the government to immediately destroy tainted poultry to avoid exposing the public. In Barry v Barchi, 443 US 55, 65 (1979), the Court allowed the government to temporarily suspend a horse trainer from further racing if there was evidence of doping. In Mackey v Montrym, 443 US 1, 17-18 (1979), the Court said that the government can temporarily suspend someone’s drivers license when there is strong evidence that the person was drunk driving. The Court allowed these actions because any delay would have allowed destructive or harmful behavior to continue.

With red flag laws already adopted by states across the United States, the judge can issue an ex parte order that seizes the firearm if there is an immediate risk of harm for a limited period of time (in most states, this is fourteen (14) days).[2] At an ex parte hearing, the judge only hears evidence from the petitioner. The subject of the petition will not be able to prevent a defense until after the firearms have been a seized and a final hearing is held.[3] David Kopel, research director at the Independence Institute, said that he believed Vermont had “a fair system, which requires ‘specific facts’ that show an ‘imminent and extreme risk.’”[4] Kopel said, “When it comes to seizing guns through a temporary order, the standards that a judge uses should be high.”[5] Pinellas County Sheriff Bob Gualtieri said that the standard is high and requires “clear and convincing evidence.”[6] However, in some states the burden of proof required is a preponderance of evidence, which is one of the lowest burdens of proof in civil cases.[7]

In a hearing before the United States Senate Judiciary Committee, David Kopel said, “Constitutional requirements of procedural due process are at their height when an individual is deprived of a “fundamental” enumerated right. The right to keep and bear arms is such a right. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).”[8] Kopel went on to say that “the courts have identified seven key elements in procedural due process: notice; a neutral decision-maker; an opportunity to make an oral presentation; the opportunity to present evidence; the opportunity to cross-examine witnesses and respond to evidence; right to representation by counsel; and a decision based on the record, and reasoning for the result.”[9] He further stated that “an ex parte system deprives individuals of five of the seven elements of due process: notice, opportunity make an oral presentation, opportunity to present evidence, cross-examination and response to evidence, and the right to counsel.”[10] In response to a question from Senator Ted Cruz (R-Texas), Kopel laid out what he believed should be the minimum due process protections in red flag laws:

1. Ex Parte hearings only if petitioners prove it to be an absolute necessity in the case of immediate danger;
2. Evidence should be “clear and convincing” at all levels of hearings throughout the process;
3. Respondents to the petitions should have a legal counsel, even if appointed by the court;
4. The right to bring forth witnesses to support their case and cross-examine witnesses brought against them; and
5. The ability to seek justice for any false or malicious testimony used to strip them of their right to bear arms.[11]

When it comes to evaluating whether any proposed red flag law in Michigan meets the procedural due process, ask yourself does it meet the seven key elements of procedural due process that David Kopel identified and does it have the minimum due process protections that he provided in response to Senator Ted Cruz’s question.                                   

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[1] Stanglio, Doug. “Should guns be seized from those who pose threats? More states saying yes to red flag laws.” https://www.usatoday.com/story/news/nation/2019/05/01//red-flag-laws-temporarily-take-away-guns/35214910027. Last accessed on August 29, 2019.

[2] Vasilogambros, Matt. “Red Flag Laws Spur Debate Over Due Process.” https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/09/04/red-flag-laws-spur-debate-over-due-process. Last accessed on September 19, 2019.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Grogan, David. “Red Flag Laws, Firearms, & Due Process.” Conservative Partnership Institute. https://www.conservativepartnership.org/post/628/red-flag-laws-firearms-due-process. Last accessed on September 18, 2019. 

[8] Kopel, David. “Red Flag Laws: Examining Guidelines for State Action” https://www.judiciary.senate.gov/imo/media/doc/Kopel%20Testimony1.pdf. Last accessed on October 7, 2019.

[9] Id.

[10] Id.

[11] Id.

Over the last few weeks, I have been blogging about the trend across the country to pass what is referred to as “red flag” laws. So far, we have explored what they are, the names that are used to refer to them, and both sides of the argument in support or opposed to red flag laws. Last week, there was a typographical error in the blog. It said that “[p]roponents also argue that red flag laws do little to get help for those in crisis.” “Proponents” was the wrong word and the blog has been corrected to reflect that it is opponents of red flag laws. This week, we will examine the studies of red flags laws and their effectiveness.

Following the Parkland school shooting, President Trump established the Federal Commission on School Safety. The President tasked the Commission to report on policy recommendations to prevent future school violence. That Commission compromised of U.S. Department of Education Secretary Betsy DeVos, U.S. Department of Homeland Security Secretary Kirstjen M. Nielsen, U.S. Department of Human and Health Services Secretary Alex M. Azar, II, and U.S. Department of Justice, Acting Attorney General Matthew Whitacker.[1] In their cover letter to the President, the Commission stated, “There is no universal school safety plan that will work for every school across the country. Such a prescriptive approach by the federal government would be inappropriate, imprudent, and ineffective.”[2]  In the Commission’s report to the President, they discussed red flag laws.

The Commission stated that red flag laws are of recent vintage with the oldest law on the books being less than twenty (20) years old.[3] At the time of the report, over half of the states with laws on the books were less than one year old.[4] The Commission was not surprised that there was little research on the effectiveness of red flag laws.[5] In the report, the Commission discussed two studies that examined the effectiveness of Connecticut’s and Indiana’s red flag laws on the prevention of suicide.[6] The Commission reported that these studies examined the impact on the prevention of suicide and not the impact to violence against others.[7] The Commission concluded that they “do not know whether [red flag laws] impact gun violence more generally, and it appears no studies have yet evaluated the more recent ERPO laws in other states>”[8]

One of the two studies referenced by the Federal Commission on School Safety was conducted by Aaron J. Kivisto, Ph.D., and Peter Lee Phalen, M.A.[9] In their study, Kivisto and Phalen studied the effect of the red flag laws on suicide rates.[10] At the conclusion of their study, they found that “Indiana’s firearm seizure law was associated with a 7.5% reduction in firearm suicides in the ten years following its enactment, an effect specific to suicides with firearms and larger than that seen in any comparison state by chance alone.”[11] They also discovered that the “enactment of Connecticut’s law was associated with a 1.6% reduction in firearm suicides immediately after its passage.”[12] The researchers also determined that following the shooting at Virginia Tech, the reduction in firearm suicides increased to 13.7%, when enforcement of the law substantially increased.[13] The researchers learned that of the 762 individuals exposed to firearm seizures between 1999 and 2013 in Connecticut, 21 committed suicide (six via firearm).[14]

The first study cited by the Federal Commission on School Safety was authored by ten individuals from four different universities.[15] This study focused solely on the impact of Connecticut’s law on reducing suicide. The authors of this study stated that they were able to review the information in “702 risk-warrant petitions was available for review.”[16] The authors found that “suicidality or self-injury threat was listed as a concern in sixty-one percent of cases, and risk of harm to others was a concern in thirty-two percent of cases.”[17] The authors of the study found that in “fifty-five percent of cases police were sufficiently concerned about the mental health or intoxicated condition of the subject that they transported the individual to a hospital emergency department for evaluation.”[18]The authors stated in their summary that “[u]sing the law to prohibit a suicidal person from purchasing a gun is a good idea, but one that will not work—even with a comprehensive background check system—as long as those who are inclined to harm themselves do not fall into some category of persons prohibited from possessing or purchasing firearms under federal or state law.”[19]

The effectiveness of red flag laws to prevent mass shootings is simply not known as there has been no studies into this type of prevention. The two studies that have studied the effectiveness of red flag laws on the prevention of suicide by firearm indicate that the impact of the laws is reducing suicide by firearm by less than 20%. The authors of the Connecticut study raise a question to ponder, “Will using the law to prohibit a suicidal (or homicidal) person from purchasing or possessing a gun work to prevent future death?” It may take years to understand the effectiveness of red flag laws on the prevention of mass shootings and suicide. The answer for now is that we just do not know if the passage of red flag laws will achieve the desired effect of those that propose such laws.

Take the time to read and study the report from the Federal Commission on School Safety and the two studies that have been published. Educated yourself fully on red flag laws as passed in other states, so you will know what legislators are proposing in our state and if the public policy behind the law is sound.  Next week, we will explore the due process of red flag laws.

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[1] Final Report of Federal Commission on School Safety, December 18, 2018, https://www2.ed.gov/documents/school-safety/school-safety-report.pdf, accessed on September 12, 2019.

[2] Id.

[3] Final Report, page 90.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Aaron J. Kivisto, Ph.D., and Peter Lee Phalen, M.A., “Effects of Risk-Based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015” https://ps.psychiatryonline.org/doi/full/10.1176/appi.ps.201700250, accessed on September 12, 2019.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Swanson, Jeffrey W. et al, “Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides?”, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4830&context=lcp, accessed September 12, 2019.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

Red flag laws seek to temporarily remove guns and prohibit future purchases of gun for those individuals who have been identified as being in crisis and presenting a significant risk of harming themselves or the community at large. There are two opposing views to the passage of red flags laws. This week, I will be examining the arguments in favor of and in opposition of red flag laws.

APM Research Lab conducted a study of 1,000 American adults from July 16 to 21, 2019. This was just two weeks prior to the mass shootings in El Paso, Texas and Dayton, Ohio.[i] The study found that over three-fourths of those surveyed supported family-initiated red flag laws. For police-initiated red flag laws the support dropped slightly to seventy (70%) percent.[ii] The Brady Campaign to Prevent Gun Violence reports in their fact sheet on red flag laws that two other studies conducted in 2015 and 2017 had similar results from those polled.[iii] Senator Lindsey Graham of South Carolina has publicly declared his support of passage of red flag laws at the state level.[iv] Following the shootings in El Paso, Texas and Dayton, Ohio, Senate Majority Leader Mitch McConnell from Kentucky and Senator Richard Blumenthal of Connecticut have expressed their support for red flag laws.[v]

The advocates of red flags laws promote the limited number of people who can request the protective order from a court. The laws limit the individuals who can request the order to law enforcement or family members. However, some states have expanded the list of individuals to include romantic partners or cohabitants.[vi]

Proponents of red flag laws state that a judge can order the temporary removal of guns from an individual once evidence has been presented that shows the individual is a risk of inflicting harm on himself or the public at large. The judge can issue the order prior to a hearing on an ex parte basis, but the individual is entitled to a hearing and the opportunity to present his own evidence refuting the petition’s allegations.[vii] This temporary removal of guns will save lives is the argument made.[viii] Proponents of the laws also state that the current laws in effect require evidence to be presented before the order can be issued and include punishments for filing false petitions. The punishments may include fines or jail time.[ix]

Those who oppose red flag laws state that the laws violate due process rights of the individual that the order is issued against.[x] In an opinion piece in the Courier Journal, Thomas Massic and Jim Jordan wrote that there is no evidence that the laws are reducing the frequency of mass shootings in public places where the laws have already been adopted.[xi] For law enforcement and the citizens, the service of the protection order can be hazardous. This is why some sheriffs, such as the sheriff in Weld County, Colorado are announcing that they will not order their deputies to participate in the service of these orders and the seizure of guns from individuals.[xii]

Opponents also argue that red flag laws do little to get help for those in crisis, but instead irritate the person by taking the firearms and leaving them without mental health help.[xiii] Without treatment, someone who is determined to hurt himself or others will find another weapon to use. This was the case with David Krystyniak.[xiv] Police removed firearms from Mr. Krystyniak twice before he used a samurai sword to kill his mother.[xv] He was known to be mentally ill and had a long history of erratic behavior.[xvi] The removal of firearms, with the last removal being on July 14, 2019, did not prevent the death of his mother as he found something else.[xvii]

Next week, I will explore the studies of red flag laws on how effective they are. In the meantime, do your own research on the issue of red flag laws before you decide if red flag laws are a solution to mass shootings.

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[i] “What do Americans think about key gun policies?” https://www.apmreasearchlab.org/stories/2019/08/19/survey-guns-america-poll-red-flag-erpo-suicide-homocide-mass-shootings-storage accessed September 5, 2019.

[ii] Id.

[iii] “What are Extreme Risk Laws?” https://www.bradyunited.org/fact-sheets/what-are-extreme-risk-laws accessed August 29, 2019.

[iv] Stanglio, Doug. “Should guns be seized from those who pose threats? More states saying yes to red flag laws.” https://www.usatoday.com/story/news/nation/2019/05/01/red-flag-laws-temporarily-take-away-guns/35214910027.

[v] Lee, Kurtis. “Here’s what you need to know about ‘red-flag’ laws, the latest trend in gun control.” https://www.latimes.com/world-nation/story/2019-08-14/nationwide-red-flag-gun-laws-have-inceased-but-do-they-work, accessed August 29, 2019.

[vi] Jordan, Jim and Massic, Thomas. “Why red flag laws, background checks and an assault weapons ban won’t stop mass shootings.” https://www.courier-journal.com/story/opinion/2019/08/23/red-flag-laws-universal-background-checks-infringe-constitutional-rights/208839400/, accessed August 29, 2019.

[vii] “What are Extreme Risk Laws?”

[viii] Id.

[ix] Id.

[x] “Why red flag laws, background checks, and an assault weapons ban won’t stop mass shootings.”

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] 2^nd Amendment Daily News. “Red Flag Failure: Police take guns from Illinois man, kills mother with samurai sword.” https://gunowners.org/red-flag-failure-police-take-guns-from-Illinios-man-kills-mother-with-samurai-sword/ accessed September 5, 2019.

[xv] Id.

[xvi] Id.

[xvii] Id.

At the beginning of this month, two shootings, El Paso, Texas and Dayton, Ohio, along with President Trump’s call for states to pass extreme risk protection order laws stirred up discussions among people I know about the intent of these laws and the potential conflict with due process rights. However, extreme risk protection orders, also known as “ERPO laws” or red flag laws (in this series, I will refer to them as “red flag laws”), have been gaining popularity among the states since the first law passed in 1999 in Connecticut following a fatal shooting at the Connecticut Lottery headquarters in Newington.[i] In my discussions, I have learned that some individuals were not aware of the history of the extreme risk protection order laws. This is the first in a series of blogs that is meant to educate on the history of passage of these laws, the viewpoints from both sides, outcomes relating to studies surrounding these laws, the impact on an individual’s due process rights and what the courts in other states have said, and what is happening in Michigan. This week, I am discussing the history of red flag laws.

Red Flag Law History

The first thing to know about red flag laws is that as of August 14, 2019 a total of 17 states and the District of Columbia have passed extreme risk protection laws. These laws are meant to prevent a person in crisis from harming themselves or others by temporarily removing guns and prohibiting the purchase of guns. Each state has passed its own version of these laws and refers to these laws by differing names. The laws have been referred to as extreme risk protection orders, red flag laws, or gun violence restraining orders. Some states restrict those who can request the protective order to law enforcement officials only while other states have expanded the group of people to include family members, dating partners, former spouses or dating partners, to roommates.[ii] About 21 other states have taken some steps toward adopting a red flag law.[iii]

The second thing to know about red flag laws is that most states have enacted their version of this law following a mass shooting. It started with Connecticut in 1999. Matt Beck, a employee at the Connecticut Lottery killed four of his supervisors before killing himself with a 9mm Glock pistol with a 19-round magazine.[iv] Beck had a history of attempted suicide, failed to win a promotion, and had filed a work-related grievance over a salary dispute.[v] He was under a doctor’s care and on medications.[vi] His father said that there was nothing unusual about his demeanor as he left that morning.[vii]

Indiana was next to pass a red flag law in 2005. The state passed the law after a fatal shooting.[viii] Kenneth Anderson, a 33-year-old man, carried a semi-automatic rifle and two handguns while he opened fire on homes and vehicles in an Indianapolis neighbor after he killed his mother.[ix] A police officer was shot and killed during the shootings.[x] Five months, prior to the fatal shootings, police had put Anderson under “immediate attention” at a hospital and seized weapons and ammunition from his home.[xi]

California was next following the Isla Vista killings by Elliott Rodger. Rodger was 22-years old.[xii] He used his vehicle, guns and knives to kill seven people, himself and wounded another 13 people.[xiii] He ran down skateboarders and bikers, fired through shop windows, and killed two women on a sorority house lawn.[xiv] His body was found near three handguns and more than 400 rounds of ammunition.[xv]  His was a planned attack that he publicized with a video stating that “he had no choice but to exact revenge.”[xvi] Even though family and doctor had very clear warnings about his risk to himself or others, there was little anyone could do.[xvii]

Washington was the next to pass a red flag law in 2016[xviii]. Oregon followed in early 2018.[xix] At that time, there were five states with red flags on their books.

After the shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018, another eleven states passed red flag laws.[xx]  Florida passed its law three weeks after the shooting and started a wave of states to follow.[xxi] This was a bipartisan movement after evidence showed that 19-year-old suspect showed several signs that he would act violently in the months prior to the shooting.[xxii] Family members alerted police about his disturbing social media messages and that he expressed a desire to kill.[xxiii] The FBI acknowledged failing to act on a tip prior to the shooting that killed 17 people.[xxiv]

Red Flag Laws in Michigan? Are They on the Way?

Currently, a version of a red flag law has been introduced in both the Michigan House of Representatives and the Michigan Senate. I will further explore and detail what the six bills propose and what their status is in upcoming blogs.

Even Republican Senator Lindsey Graham of South Carolina, chairman of the Senate Judiciary Committee, is a supporter of red flag laws at the local level.[xxv] He told “Face the Nation” on April 28, 2019 that he “is pushing his committee for a national grant program to ‘incentivize’ states to pass them.”[xxvi] He believes such a law would have made a difference in the Parkland shooting.[xxvii]

The first step in deciding whether to support or oppose an extreme risk protection order is educate yourself on what they are, how and when they are passed, whether they have worked in other states, and what you can do to protect yourself from being a respondent to one. Follow this series of blogs to learn more about red flag laws, and then do more research on your own to form your independent opinion on red flag laws.

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[i] Stanglio, Doug, “Should guns be seized from those who pose threats? More states saying yes to red flag laws” https://www.usatoday.com/story/news/nation/2019/05/01/red-flag-laws-temporarily-take-away-guns/35214910027, accessed August 29, 2019.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Tuohy, Lynne, “”Killer’s Parents Apologize” https://www.courant.com/news/connecticut/hc-xpm-1998-03-08-9803080035-story.html, accessed August 30, 2019.

[vii] Id.

[viii] Stanglio, Doug

[ix] Id.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] “What are Extreme Risk Law?” https://www.bradyunited.org/fact-sheets/what-are-extreme-risk-laws, accessed August 29, 2019.

[xix] Id.

[xx] Lee, Kurtis. “Here’s what you need to know about ‘red-flag’ laws, the latest trend in gun control.” https://www.latimes.com/world-nation/story/2019-08-14/nationwide-red-flag-gun-laws-have-increased-but-do-they-work

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv]

[xxv] Stanglio, Doug.

[xxvi] Id.

[xxvii] Id.