New Scholarship on Extreme Risk Protection Order Laws

The University of Alabama Law School's Law & Psychology Review has now published several pieces that came out of a symposium last year, Seeing Red: Risk-based Gun Regulation about (primarily) Extreme Risk Protection Order Laws (also known as red flag laws). Joseph and I presented on our Virginia Law Review piece "Firearms, Extreme Risk, and Legal Design: 'Red Flag' Laws and Due Process." And Center faculty affiliate Jeff Swanson presented on his research, including what he and several colleagues published about the effectiveness of Connecticut's ERPO-like law, "Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?" Several of the other pieces that have recently been uploaded to Westlaw are below:

• David B. Kopel, Red Flag Laws: Proceed with Caution, 45 Law & Psychol. Rev. 39 (2021)

From the Introduction (footnotes omitted):

“Red flag” laws, or “Extreme Risk Protection Orders,” (“ERPOs”) have been enacted in several states. While the idea for these laws is reasonable, some statutes are not. They destroy due process of law, endanger law enforcement and the public, and can be handy tools for stalkers and abusers to disarm innocent victims.

Many such orders are improperly issued against innocent people.

The Conference of Chief Justices asked the Uniform Law Commissioners to draft a national model red flag law, but the Giffords organization blocked the effort—lest it offer an alternative to the extreme and reckless system being pushed by Giffords and related groups, most notably the Bloomberg entities.

When Confucius was asked what would be the first step if a government sought his advice, he answered: “It would certainly be to rectify names .... If the names are not correct, language is without an object.” Bills that claim to be about “Extreme Risk Protection Orders” are not correct; the bills cover much lower-level risks, or just “dangers.” Likewise, the term “red flag” is dubious because some bills label as dangerous the peaceable exercise of constitutional rights. A more accurate name for these laws is “gun confiscation orders.”

Such orders can be legitimate when fair procedures accurately identify dangerous individuals. Such laws include the following features:

• Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.

• Ex parte hearings only when there is proof of necessity.

• Proof by clear and convincing evidence that has been corroborated.

• Guarantees of all due process rights, including cross-examination and right to counsel.

• Court-appointed counsel if the respondent so wishes.

• A civil remedy for victims of false and malicious petitions.

• Safe and orderly procedures for relinquishment of firearms.

• Strict controls on no-knock raids.

• Storage of relinquished firearms by responsible third parties.

• Prompt restoration of concealed carry permits for the falsely accused.

• Prompt return of firearms upon the termination of an order.

• Renewal of orders based on presentation of clear and convincing proof.

• Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.

• Jack Kappelman, Just A Minor Infringement: How Florida’s Extreme Risk Protection Order Applies to at-Risk Youth and Other Household Members, 45 Law & Psychol. Rev. 19 (2021)

From the Introduction (footnotes omitted):

Suicide by firearm is perhaps one of the most overlooked public health crises in the United States. With over 23,000 firearm suicides every year, and nearly five-percent of those suicides being minors under the age of eighteen, this issue is cause for serious concern. When it comes to gun violence, mass shootings and gruesome homicides garner much of the public attention, but suicide remains the leading form of firearm violence--accounting for nearly two-thirds of all gun deaths in the United States. Youth suicide by firearm--though only a relatively small proportion of all firearm suicides nationally--has continually increased in severity, with recent studies showing a nineteen-percent increase in the rate of suicide by firearm in the last ten years, and young white men being the most adversely affected population. As the issue has grown, many states have sought to adopt restrictive firearm policies designed to reduce the rate of suicide by firearm, with some of these policies specifically focusing on the prevention of youth suicides. Of these policies, many states have focused on designing child access prevention (CAP) laws or have set minimum age purchase and possession statutes to regulate the access that minors have to firearms.

Even with the adoption of these policies, suicide by firearm remains a pressing issue. Recent studies have pointed to a relationship between firearm ownership and the risk of firearm injury or violence, with one study finding that simply having a firearm in the home can increase the likelihood of death by firearm suicide as much as three times. As far as minors are concerned, ease of access to firearms plays an important role in the likelihood of suicide by firearm, as studies have shown that adolescent victims of suicide often use unlocked firearms found in their place of residence. Unlocked firearms, along with firearms that are loaded when stored, are more likely to be used in a suicide attempt than firearms locked in storage or left unloaded. With these points in mind, it is clear that a major issue relating to firearm suicide by minors is the ease of access that minors have to deadly weapons. Therefore, in order to reduce the rate of suicide by firearm among youth populations, efforts should be made to limit the access that minors have to firearms.

This paper will seek to discuss: (1) how a statute in Florida has been used to address the issue of youth suicide by firearm, (2) the details of how the statute is written and how it applies to minors, and (3) a discussion of whether or not the statute--as written and as theoretically applied under specific circumstances--may or may not be constitutional. In order to determine the constitutionality of the statute, this paper approaches the analysis of the statute with an overview of relevant court precedent and discusses whether the statute would survive intermediate scrutiny.

• Matthew Larosiere & Joseph G.S. Greenlee, Red Flag Laws Raise Red Flags of Their Own, 45 Law & Psychol. Rev. 155 (2021)

From the Introduction (footnotes omitted):

This article analyzes “red flag” laws. These laws permit the confiscation of property and the deprivation of the right to keep and bear arms without due process, if the petitioner can convince the court that the defendant may otherwise commit violence. Part II describes red flag laws generally, with some examples. It includes an analysis of the short history of this species of law, followed by a rundown on the present state of the issue. Part III describes the potential for abuse inherent in these laws, which has generated passionate opposition. Part IV explores the relative efficacy of these laws, as well as the metric problems posed by their study. Part V discusses the future of this type of policy as it appears to us. Part VI offers a brief conclusion.