Opinion: The dangers posed by red flag laws

Cops and citizens could become victims of these new statutes if due process and other fundamental liberties are violated


In the last several years, a number of states have incorporated new laws that allow the police to confiscate firearms from individuals who have been accused of being a danger to themselves or others. The working details of these laws differ from state to state, and the names of the laws do too, but since the conversation has turned toward creating a federal version, it’s been convenient to lump all of them together under the “red flag law” label.

In theory, these red flag laws allow the public to wave a symbolic “red flag” and notify law enforcement of looming problems, but the perceived advantages may be illusory, and the side effects may be worse if they're not carefully crafted with the necessary protections.

In this article, PoliceOne columnists Dick Fairburn and Mike Wood review key considerations for law enforcement regarding red flag laws.

On Sept.18, 2019, New York Governor Andrew M. Cuomo launched a statewide education campaign on New York's new red flag law. The Governor hosted the first of three conferences to help teachers, school administrators and parent representatives understand the new law. (Darren McGee/Office of New York Governor Andrew M. Cuomo via AP)
On Sept.18, 2019, New York Governor Andrew M. Cuomo launched a statewide education campaign on New York's new red flag law. The Governor hosted the first of three conferences to help teachers, school administrators and parent representatives understand the new law. (Darren McGee/Office of New York Governor Andrew M. Cuomo via AP)

The law enforcement perspective on red flag laws

By Dick Fairburn

We are currently facing a gun control imperative, fueled by several active shooter events, leading to the creation of red flag laws that allow law enforcement to take possession of a person’s firearms if the person is accused of being a danger to themselves or others. When crafted from a law enforcement perspective, these laws can help prevent potential mass killings. However, if the “gun grabbers” get to choose the language, police officers and honest citizens could become victims of these new statutes.

First, some local history. Since 1968, Illinois residents have been required to obtain a license from the state of Illinois to possess firearms or ammunition, a card called a Firearms Owner ID (FOID). That law has always allowed law enforcement officers, through the Illinois State Police Firearms Bureau, to revoke the FOID of someone they deem to be a danger to themselves or others; and to seize that person’s firearms, without any type of hearing or due process. So, the 2018 Illinois Firearms Restraining Order Act actually gives citizens much more protection than the 50-year-old FOID statute, such as an initial hearing (ex parte) and a true (in-person) due process review hearing within 14 days.

Recently, my investigators took a complaint of a local restaurant worker who had been fired for sexually harassing a co-worker and making several threatening statements, like, "I wonder what it would feel like to commit mass murder?” We used Illinois’ new red flag law to obtain a Firearms Restraining Order signed by a judge, allowing us to seize the man’s FOID and firearms (a shotgun and AR-15). At the mandatory follow-up hearing, the judge dropped the restraining order and released the weapons (to the subject’s father until the son could get his Illinois FOID card reinstated, which could take months). This court action proves that red flag laws can be useful to law enforcement and even disarm a potential active shooter. Still, as a strong proponent of the Second Amendment to the Constitution of the United States, our justified use of this new law makes my skin crawl.

Here are three ways I think poorly written red flag laws can cause problems for law enforcement agencies and officers:

1. Legal requirements and responsibility

In most states, red flag laws are civil, not criminal. This means the normal prosecutorial system may not assist you. In our recent use of the Illinois red flag law, the county prosecutor did the initial paperwork and assisted with the hearing before a circuit judge but told us the 14-day review hearing was on us, his office would not assist. Luckily, our mayor is a retired police chief and authorized our city attorney to handle legal representation at the review hearing. Like when individual citizens file the request for a Firearms Restraining Order, your agency personnel may have to handle all the paperwork and hearings. And, if the target of the order eventually files a civil suit, that too may be your agency’s problem.

2. Risk at seizure

Let’s face it, going to an individual's home to effect an arrest or search/seizure is inherently bad juju, as confronting someone at their lair is a dangerous business. Going to seize citizen’s guns is what resulted in the “shot heard ‘round the world” at Concord Bridge, Massachusetts, in 1775, resulting in the birth of a new nation.

One death has already occurred during a red flag seizure action when the target of a Maryland order answered the door with a handgun and shots were exchanged.

If a subject knows you’re coming for their guns, SWAT-level raids may be appropriate. Some of these folks have an arsenal of weapons and ammunition along with better shooting skills than most cops. Offering a surrender option upfront, or better yet taking them into custody away from their stash makes a lot of sense.

I would like to assume any red flag seizure initiated by a law enforcement agency will be legitimate, like the one we used in our recent threat case. However, the politicization of so many chiefs and sheriffs in “blue” states makes me wonder if red flag laws could be used improperly to silence critics or enforce local gun control initiatives.

After all, some on the left believe anyone who even owns a gun is an inherently dangerous individual and should be forced into mental counseling. A recent survey in San Francisco revealed that more than 20% of those polled felt that membership in the National Rifle Association should be deemed a criminal act.

3. A tool to use against law enforcement officers

Could red flag laws be used against cops? An increasingly common tactic among aggressive divorce lawyers is to have an officer’s spouse claim they have threatened violence to obtain an Order of Protection (OP) against the officer. This makes an officer unable to legally possess a firearm in most states, preventing them from working. This has happened twice in my small department, putting the officer off work until the OP can be nullified or at least modified by the issuing judge. So far, I am not aware of anyone trying to seize an officer’s personal weapons due to an OP, even in Illinois with our onerous FOID system.

Judges tend to issue an Order of Protection almost automatically to ensure they can’t be blamed if something bad should happen. They are likely to issue red-flag orders just as easily. This makes red flag laws a logical next step for attorneys trying to intimidate officers in divorce settlements or custody disputes.

The public perspective on red flag laws

By Mike Wood

Dick expertly pointed out the problems with red flag laws from the law enforcement perspective, but there are additional considerations on the public side. Some of these include:

1. The elimination of due process

As they currently exist, red flag laws allow the state to confiscate property and violate individual rights without the benefit of constitutionally protected due process. Since red flag hearings are conducted ex parte, the subject receives no prior warning that charges are being levied against them, is unable to confront their accuser and is denied the opportunity to defend themselves. Laws like those in California allow the state to delay follow-on hearings for up to 21 days, leaving potentially innocent parties to endure their injuries for extended periods.

This is un-American. Our legal system operates on the principle that all parties are innocent until proven guilty, but under red flag laws, the accused are assumed to be guilty from the start and required to prove their innocence. Worse yet, there is no requirement for compelling evidence before charges are levied – a mere accusation, even unsubstantiated, is enough to trigger the suspension of fundamental civil rights.

2. Risk of death or injury

As Dick mentioned, red flag laws introduce a significant risk for law enforcement personnel, but they introduce an even greater risk of death or injury for the public, who lack the armor, backup, training, equipment and tactical advantages of the police. Because the warrants are executed without notice, some citizens will likely arm themselves in response to the pounding and yelling at the door, believing a criminal attack is unfolding. This could easily promote an unintentional armed confrontation with the police, particularly if the police are not clearly identifiable as law enforcement, or the citizen believes they may be criminals posing as police – which is entirely plausible, given the increased use of this tactic by violent criminals, and the fact that innocent people know they haven’t done anything to justify a legitimate police raid.

Mixing nervous, hypervigilant cops and armed citizens is a recipe for disaster. Unfortunately, we’ve seen several incidents where police have shot lawfully armed citizens in these kinds of circumstances, to include during traffic stops, while responding to home invasions, bar fights and active shooters, and while raiding the wrong home by mistake. The proliferation of red flag laws could encourage more of these needless tragedies.

3. No effect on curbing violence

Since red flag laws don’t authorize subjects to be detained or taken into custody, legitimately dangerous people will be allowed to remain free to plan and execute their violent attacks. They retain the ability to obtain other weapons (including another gun), continue their surveillance and planning, and launch their attacks on their victims. Therefore, red flag laws cannot protect the public from mentally unstable attackers or reduce violence, as their proponents claim. Dangerous people won’t be stopped by red flag laws, but there’s a significant risk that innocent and unfairly accused citizens will have fundamental civil rights and liberties violated by the state.

4. Damaging the relationship between the public and their police

The natural alliance between lawfully armed citizens and the police could be irreparably damaged by red flag laws. When the public believes the justice system is casually infringing upon – even suspending – core liberties and civil rights, and using the police as their muscle to enforce these abuses, any sense of trust and respect between them is lost. As such, these laws promote division between the police and the citizens that are most likely to be their allies.

Conclusion

By Dick Fairburn

In my opinion, red flag orders should be a tool available to law enforcement but VERY difficult to obtain without police participation. This would help prevent the use of this powerful tool for retaliation or intimidation reasons. Similarly, filing a red flag request using false information should be a crime. I also believe the target of the order should have notice and a hearing BEFORE the seizure of weapons, except in the cases of most extreme risk where notification could be dangerous to all involved.

Without pre-seizure due process, I feel these laws are inherently unconstitutional. One article on a pro-gun website recently made the argument that red flag laws violate seven of the original 10 Bill of Rights amendments, plus the Fourteenth.

However, the law enforcement profession rarely has any input into the writing of these politically driven statutes. As always, police officers will bear the risk of enforcing these laws. Unless we join a few of the sheriffs around the country who have proclaimed they will NOT enforce unconstitutional gun laws, we face dangerous times ahead.


About the authors

Dick Fairburn has more than 40 years of law enforcement experience in both Illinois and Wyoming, working patrol, investigations and administrative assignments. Dick also served as the Section Chief of a major academy's Firearms Training Unit and Critical Incident training program. He has published more than 300 feature articles and two books: Police Rifles and Building a Better Gunfighter. Dick is currently serving as the public safety director in a central Illinois community, overseeing the police and fire departments, as well as the 911 center. 

Read more articles from Dick here.

Lieutenant Colonel (Ret.) Mike Wood is an NRA Law Enforcement Division-certified Firearms Instructor and the author of "Newhall Shooting: A Tactical Analysis", available in paper and electronic formats through AmazonBarnes & Noble, Apple Books and the Gun Digest Store. Please visit the official website for this book at www.newhallshooting.com for more information. Mike is a member of the PoliceOne Editorial Advisory Board.

Read more articles from Mike here.

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