Last week, California Governor Gavin Newsom signed a bill that would expand the types of people who can request a so-called Red Flag Restraining Order, an order that temporarily takes guns away from gun owners due to reports that they pose a risk. In addition to immediate family members or law enforcement, the new law allows employers, co-workers, and teachers to also request one. Such orders are also referred to as Extreme Risk Protection Orders (ERPOs) or Gun Violence Restraining Orders (GVROs). California’s prior law was similar to other states with existing red flag legislation.
First, there are many problems with any ERPO type legislation that circumvents due process. Typically, the accused has no right to face her accuser, nor to have her day in court before her property (her firearm) is seized. It is then up to the accused to prove that she is not a danger in order to get her property back. The normal standard for a crime in the US is innocent until proven guilty. Red flag laws flip the burden, requiring the accused to prove her innocence.
California’s move to expand the types of people who can request these orders simply amplifies the potential for violations of due process and expands the risk of misuse.
Even the usually left-leaning ACLU opposes California’s enhanced ERPO law, since it, “poses a significant threat to civil liberties,” citing concern that red flag orders can be sought before gun owners have an opportunity to contest the requests. The ACLU also said that people making the request would, “lack the relationship or skills required to make an appropriate assessment."
I agree with the ACLU.
Consider that family relationships are complicated and could result in someone intending to punish a relative. Consider that some relationships end badly, resulting in one party wanting to inflict damage on the other’s reputation. Consider co-workers that don’t get along and hold grudges that result in wanting to cause trouble for another in the workplace. Consider an employee is just having a bad day, shares it with her boss, and the boss files an ERPO out of an abundance of caution. The ACLU has reason for concern.
Investigation by trained law enforcement goes further than an allegation by one side. Both sides of the story are important to make sure that all of the facts are known. The people on both sides deserve to have their rights protected.
We can all agree that we don’t want violent or mentally ill people to have access to firearms, or any weapons for that matter. But do ERPO type laws help in this situation?
Imagine a domestic violence situation where a wife is accused of threatening her husband with a gun. Under ERPO type laws, the husband could request that the wife’s gun be removed from her. But if she is truly violent, shouldn’t she be removed from the situation as opposed to the gun? If one tool is removed, but all other knives, the hammer, the car, a rope, or anything else that can be used to inflict harm remain in the residence, did the application of the ERPO make anyone safer? Of course it didn’t. Even worse, imagine the husband was really the bad actor, and he simply abused the ERPO to take away his wife’s best defense should he become violent and abusive.
And imagine a similar situation where the violent spouse needed mental health care. Under an ERPO law, the gun would be removed, and the person would not get the care she needed. This does not make anyone in the household safer, nor is it compassionate toward someone needing a mental health intervention.
If ERPO type laws are not the answer, then how should this problem be addressed? Allow law enforcement to make the determination on what steps should be taken to solve a given problem. Law enforcement officers are trained in the investigative skills that the ACLU notes are lacking in other citizens. Typically spouses, teachers, employers, and co-workers do not have the requisite skills to conduct that level of investigation.
And though state laws vary, there are laws on the books today that law enforcement can use to address these potentially dangerous situations in a way that doesn’t trample on anyone’s rights. Sean Maloney, an Ohio attorney specializing in gun law, assembled a list of Ohio State Statutes that all work better than any potential ERPO type legislation to resolve dangerous situations.
Unless there are court challenges to the new CA law, it’s too late to undo the new, expanded ERPO legislation there. But other states should take heed and not pass an ERPO law so extreme that even the ACLU can’t support it. Better yet, states should avoid these misguided laws altogether.