The DC City Council passed a “red flag” law on Tuesday. The council voted unanimously to allow police to seize legally owned guns from people who a secret court deems a danger to others or themselves.
A so-called “red flag” law is known as an extreme risk protection order (ERPO). A family member, neighbor, or roommate can go to the police and claim someone is a risk to themselves or others. The police will go to a judge to get an ERPO against the gun owner. This order will allow them to seize the guns by force if necessary.
Red flag laws have been a hot-button topic around the country. Anti-gun groups say these laws save lives by taking away guns from those who would be a threat to others or at risk of suicide.
Gun rights groups such as Gun Owners of America claim these laws violate the due process clause of the Constitution. GOA takes issue with the secrecy of the court proceedings. The gun owner is not in the court to defend themselves and don’t even know the proceeding is taking place.
Warrants have a 98% approval rate from judges across all states. Since the burden of proof is higher for search warrants, the courts probably approve ERPO at the same or higher rate. It is almost impossible to get statistics on the approval rate since all ERPOs are sealed unless the courts decide to unseal them.
These orders have led to deadly confrontations between the police and gun owners. Last month a Maryland man was shot and killed by police as they were trying to serve an ERPO. According to the man’s niece, her aunt took out the order due to a family disagreement. She states that her uncle was not a threat to himself or anyone else.
It can also be costly to get an ERPO overturned. Current estimate puts the price at $10,000 in legal fees to reverse one of these orders — the cost of fighting an ERPO with no guarantee of success cause most people to not fight the law.
The cost of overturning the order also disproportionally affect low-income Americans. A lot of those living in poverty have to choose between fighting against an unjust ERPO and putting food on the table. The courts set the burden of proof onto the gun owner.
The NRA has somewhat of a confusing stance on red flag laws. They support certain ERPOs but oppose other orders.
“We need to stop dangerous people before they act,” said Chris W. Cox, executive director of the NRA’s Institute for Legislative Action in a YouTube video. “So, Congress should provide funding to states to adopt risk protection orders.”
“Some have raised the issue of current ERPO laws in California, Oregon and other states, suggesting that the NRA supports those laws,” The NRA wrote. “This is false. The NRA strongly opposed these laws because they do not protect due process rights. We will continue to oppose confiscation schemes such as these.”
Before 2018 only five states had red flag laws. DC will join 13 other states that now have red flag laws. Michigan and Ohio both have red flag laws currently proceeding through their legislatures. Two Democrats plan on introducing red flag laws in Texas early next year.
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