“Red Flag” Gun Confiscation

Government must not terminate gun rights based on “thought crime.”

Note: “Red Flag” laws are also sometimes called “Extreme Risk Protective Orders,” or “ERPOs.”

General Discussion

Existing Texas law provides a variety of potential judicial orders intended to restrain dangerous actors from violent or harmful behavior. These include Magistrate’s Temporary Protective Orders, Family Violence Protective Orders, and Mental Health Commitments. These orders generally require a finding of criminal conduct such as domestic violence – or at least an allegation and evidence of a criminal act.

In the past several years, multiple other states have adopted a new type of order: the “red flag” law, also called an Extreme Risk Protective Order: (ERPO). These “red flag” gun confiscation orders provide for government to prohibit someone from owning guns before they have committed a crime, and without an allegation of a criminal act. A judge can slap on a “red flag” order and suspend a person’ s gun rights simply based on someone’s allegations that the person has mental health issues, owns guns, and is a danger to herself or others.

In other words, a “red flag” law allows the government to take away your guns before you’ve committed a crime—on the basis of “thought crime.”

A “red flag” law has two poison pills. First, it lowers the threshold for removing a person’s gun rights. It allows someone’s guns to be removed without convicting or even charging them with any crime, and without proper and full adjudication of being mentally incompetent. Second, it removes procedural protections. Typically, “red flag” laws allow an ex parte hearing – which means a judge can issue a gun confiscation order against someone without that person being present or even knowing about the allegations. It also dispenses with traditional protections such as the right to have an attorney, cross-examine the accuser, and appeal.

Bills that simply make it easier for someone to accuse a gun owner of being dangerous are not actually “red flag” laws because they do not have a provision to allow the government to take away gun rights based on those accusations. The same goes for legislation that makes it easier for government to pull information on gun owners from social media or other sources for “threat assessment.” However, these bills would make it much easier to implement a “red flag” law.

GOA’s Position

Texans should not have to worry that their ability to legally possess a firearm could be taken away based on allegations that they may be a danger to themselves or others or that they are mentally unfit. The state cannot properly force a person to forfeit his or her gun rights unless the person has committed a violent crime and been duly convicted of that crime or has been properly adjudicated as mentally incompetent with full due process.

How We Talk About This

• “Red Flag” gun confiscation laws would result in decreased freedom without increasing safety.
• Courts could order firearm confiscation without even probable cause of a crime being committed. Gun owners would then be forced to defend themselves in court, spending thousands of dollars in legal fees, to get their rights back. Orr, worse, they could be unaware of any proceedings until law enforcement shows up at their door to take away their guns.
• Texas police officers already have tools at their disposal to detain dangerous individuals not otherwise engaged in criminal activity and seize firearms while still preserving due process. See Texas Health and Safety Code Chapter 573.
• The standard of “risk” or “potential danger” is too low for a person’s Constitutional right to keep and bear arms to be hampered. It sets a dangerous precedent for lowering the threshold to strip people of other Constitutional rights.
• Our justice system is supposed to prosecute and punish people who have broken an actual law, not those who are thought to be likely to commit a crime in the future. Wading into predictive judicial action is very dangerous.
• If a person is demonstrably dangerous enough to rightfully warrant stripping of Constitutional rights, that person should be removed from society. It does not solve the problem of public safety to merely remove one particular weapon that the person might own.
• There is high potential for abuse under Red Flag type concepts – either by those who want to cause trouble for someone, or by those who are irrationally afraid of gun ownership.
• Many other states have rejected Red Flag type proposals – and with good reason. At the time of writing, the list of failed Red Flag proposals included Alabama, Alaska, Arizona, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Tennessee, and Utah.
• This idea builds on the false premise that we can stop evil, and it seeks to improve safety by removing one tool. But our judicial system is supposed to err on the side of not punishing those who may be innocent – there is a high standard for denial of rights.
• Considering that hundreds or thousands of Americans use firearms every single day to defend themselves and protect their lives, this type of move to ban firearms based on suspicions is likely to wrongly remove firearms, leaving us less safe and more vulnerable.
• Instead of looking only at law enforcement-based solutions, look at reducing barriers for everyday Texans who are teachers and volunteers in schools to be able to carry a firearm if they choose. Let’s find solutions that increase safety without reducing freedom.

Bills

OPPOSE: HB 164 by Rep. Meza, HB 395 by Rep. Moody, & SB 110 by Sen. West would enact a full-fledged “red flag” law based on model legislation from the most egregious gun confiscation organizations, including everything described in the “General Discussion” section above.

See our updated bill list at txgoa.us/87r.