Are There Any Red Flags for ‘Red Flag Laws’?

[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.]

In the aftermath of the tragic Uvalde shooting, Extreme Risk Protection Orders (ERPOs), more commonly known as “red flag laws,” were touted by policymakers, bloggers, and gun control groups as a potential way to address gun violence. On paper, these laws are a dream come true. ERPOs are civil, not criminal, and they are temporary. In theory, these laws only impact individuals at risk of harming themselves or others, and ought to leave law-abiding gun owners unmolested. If the laws are properly executed, reductions in homicide and suicide should result. While many are critical of these laws for a myriad of reasons, this blog post—summarizing a paper I recently presented at the Duke Center for Firearms Law’s scholarship conference—only asks the following question: do red flag laws actually save lives?

In order to test this hypothesis, I created a state-level panel dataset between 1980-2018. The study used a unique form of the synthetic control model known as the ‘generalized synthetic control model,’ which has not yet been attempted in firearms scholarship. The generalized synthetic control model is unique in that it can calculate an average treatment effect and, unlike the standard synthetic control method, calculates standard errors.

My analysis focused on two dependent variables: total homicide and total suicide. The reason for focusing on total homicide and suicide is because this focus deals with the problem of substitution: an individual who wishes to harm himself or others can always substitute to an alternative mode of violence if firearms are restricted. As a result, how gun control policies impact total homicide and suicide rates is more important than how they impact firearm homicide and firearm suicide specifically. This is not to say the impact on firearm homicide and suicide is not important. That impact still provides relevant information, such as whether or not there is a substitution effect occurring. Because of this, the paper did test and present results on firearm homicide and suicide specifically to test whether there was a substitution effect. The results of these tests suggest substitution effects were not at play in regards to red flag laws as these laws neither reduced firearm homicide nor firearm suicide. Thus, the reason red flag laws fail to save lives is not because individuals are opting to use alternate suicide and homicide methods; rather, the laws simply do not significantly change behavior.

The results of the analysis suggest that ERPOs unfortunately have no impact on total homicide or total suicide. Ten years before and after the implementation of state red flag laws, the average treatment effect does not statistically differ from zero for any of the outcomes studied in the sample. Neither total homicide nor total suicide were significantly affected. The graph presented in the paper for total homicide can be viewed below.

In this image, the line represents the “gap” between the treatment states (states with red flag laws) and the synthetic control states (states which do not have red flag laws but were chosen by the algorithm because their crime trends are similar to the treatment states). As expected, prior to the adoption of red flag laws, this gap is close to zero: this means the control states followed similar trends to non-control states in the pre-treatment period. After red flag laws are passed, homicide appears to be slightly lower, but the change is not statistically significant. In fact, the data actually give us good reason to believe that the decline was due to random chance. In the firearm-specific estimates, there was no discernable trend either way; the effect was larger for total homicide than firearm-specific homicide. Since ERPOs should only impact total homicide rates via a reduction in firearm homicide, the small dip in homicide rates—which was already not statistically significant—is almost certainly not caused by the red flag laws.  

The results were similar for suicide. The impacts on suicide are arguably just as important, if not more so. Over 60 percent of gun deaths in the United States are from suicide, and over 60% of ERPO warrants are for self-harm (that percentage is even higher if one includes warrants where the concern was both self-harm and harm to others). Therefore, red flag laws may be more important for preventing suicide than homicide, or other gun violence. Unfortunately, the results from this preliminary study also suggest that red flag laws do not prevent suicide. The chart from the paper on suicide can be seen below.

The results for suicide show even less of a potential relationship than for total homicide: there is no discernable change up or down after the implementation of red flag laws, even before taking statistical significance into account. And the results for firearm suicide are similar: no reduction in firearm or total suicide was found, and the results were clearly statistically insignificant.

Although the results of the study found no reduction in total homicide, total suicide, or firearm-specific homicide and suicide, the results for firearm suicide (and for firearm homicide) do have an important implication. Namely, there is no evidence of a substitution effect. In other words, the reason these laws do not work is not because warrant subjects are switching to an alternative method of suicide. Instead, the results suggest these laws fail to reduce suicide and homicide because they simply do not work—whether by poor design, poor implementation, or ineffectiveness. Overall, the current preliminary data suggests these laws will likely not save lives.

In spite of the null results, there are some caveats to this analysis. First, the results largely draw on data from only two states: Indiana and Connecticut. No other state has yet utilized red flag laws for a period long enough to generate sufficient data; California and Washington only briefly make an appearance. This is a preliminary finding, and more research is needed before we can conclusively write off these laws as an effective gun control measure. Second, as noted above, these laws may simply not work due to poor implementation or poor design. As more states adopt these laws, differences in enforcement will surely become apparent, and researchers may find that some types of red flag laws work and others do not. This paper does not consider variations in design among red flag laws. Finally, this paper does not examine mass shootings specifically. While a reduction in mass victim public shootings should show up in both the firearm and total homicide numbers, it is possible that those trends are masked by aggregation bias, especially because these events comprise only a small percentage of the total number of homicides. Due to data limitations—only two states having extensive experience with these laws—I opted to focus only on the broad measures of homicide and suicide. However, as more data becomes available, it will be much easier to accurately assess what impact, if any, these laws have on mass shooting events specifically.

Overall, the results of this preliminary study suggest that red flag laws may not be the effective intervention many scholars had hoped. Future analysis is needed before any firm conclusions can be made, but the results of my study suggest that red flag laws do not save lives.

The Bipartisan Safer Communities Act: What Does the Law Do and How Might It be Impacted by Bruen?

In the aftermath of tragic mass shootings in Uvalde, Texas, and Buffalo, New York, a bipartisan committee introduced the “Bipartisan Safer Communities Act” (or BSCA) in the Senate on Tuesday, June 21. By week’s end, the bill had passed the Senate. The House of Representatives followed suit on Friday, and the bill was signed into law by President Biden on Saturday, June 25. The new law, which provides more than $13 billion in federal funding, represents the most significant federal gun regulation since the Federal Assault Weapons Ban of 1994, which expired in 2004 under a sunset provision.

Below are some highlights of the new law’s key provisions.

Funding for crisis intervention programs and red flag laws

The BSCA provides a $750 million incentive program, allotted over five years, to states that implement crisis intervention services. These can include mental health courts, drug courts, and extreme risk protection orders, also known as “red flag” laws. Red flag laws generally allow specified parties—primarily law enforcement officers and family members, but sometimes others—to petition courts to order the temporary removal of firearms from individuals who are judicially determined to present a risk of harm to themselves or others. Due to heightened due process concerns, the legislation seeks to guarantee certain protections to individuals who may be subject to red flag laws—such as “the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses,” as well as the right to bring counsel to the hearing. The BSCA does this by conditioning state use of federal funds on the state including such protections in its red flag law. States that choose not to implement red flag laws will not have their share of this funding reduced and may use it for other qualifying crisis intervention programs. As of this date, 19 states and the District of Columbia have enacted red flag laws.

Closing the “boyfriend loophole”

Federal law makes it a felony for an individual “convicted in any court of a misdemeanor crime of domestic violence” to transport, possess or receive a firearm (with a nexus to interstate commerce). 18 U.S.C. § 922(g)(9). It is also a federal crime to knowingly sell or provide a firearm or ammunition to someone convicted of a domestic violence offense. 18 U.S.C. § 922(d)(9). Under federal law as it existed before the BSCA, the definition of “misdemeanor crime of domestic violence” covered only domestic violence committed against a spouse, coparent, or cohabitating partner. The definition did not cover someone convicted of domestic violence against a boyfriend or girlfriend with whom that person did not share a residence or a child.

The new legislation attempts to close the “boyfriend loophole” by expanding the definition of “misdemeanor crime of domestic violence” to include domestic violence crimes committed against an individual with whom the perpetrator has a “continuing serious relationship of a romantic or intimate nature,” based on the length and nature of the relationship and frequency and type of interaction. Thus, the prohibition now applies to an individual convicted of a domestic violence offense against a romantic partner with whom they do not live or share a child, if the relationship is serious and intimate. However, first-time offenders convicted of non-spousal misdemeanor domestic violence will automatically have their gun rights restored after five years if they are not convicted of a violent offense within that time period. The law does not apply retroactively, meaning that only those convicted of domestic violence after the law takes effect will be impacted.

Expanded background checks for gun purchasers between 18 and 21 years old

Federal law requires that all those who purchase guns from licensed dealers undergo a background check through the National Instant Criminal Background Check System, or NICS.  The BSCA requires, for any potential purchaser under 21, that NICS “immediately contact” state and local authorities to determine whether the individual has juvenile criminal or mental health records that would disqualify that person from purchasing a gun. If the initial inquiry finds anything questionable, the FBI will have 7 business days (in addition to the 3 days provided for the initial background check) to further investigate whether the state or local records are disqualifying. After 10 days, the transfer is permitted if there is no final decision from NICS. 

Federal authorities are only permitted to access mental health history records starting from the time the potential buyer turned 16. This enhanced background-check requirement for younger gun purchasers will expire automatically after 10 years if not renewed.

Funding for mental health and school security

The law provides funding for mental health and school safety programs under the STOP School Violence Act, which implements school safety programs, funds school resource officers, and seeks to enhance security in schools. The funds can also be used to expand access to mental health services, such as by making it easier for Medicaid recipients to use telehealth services and work with “community-based mental health and substance use disorder treatment providers and organizations,” as well as by increasing access to mental health services and supporting community violence intervention and prevention initiatives.

Licensed dealers and gun trafficking

The law expands who must register as a “Federally Licensed Firearm Dealer” by changing the definition of “engaged in the business” of firearms to include anyone who sells guns to “predominantly earn a profit”—which means predominantly for pecuniary gain, rather than for personal collection. Post-BSCA, individuals who sell firearms predominantly for pecuniary gain (not only dedicated firearms stores and dealers) must run background checks on potential buyers and keep records of their sales.

Additionally, the BSCA creates new federal criminal statutes banning “straw purchases” and gun trafficking, with harsh penalties. Straw purchasers are those who buy guns on behalf of another individual, knowing that person is disqualified from possessing guns under federal law. Gun trafficking involves otherwise facilitating the transfer of a gun to someone whom the transferor knows is disqualified from possessing the gun.

The million-dollar question: How will the BSCA, and state laws it is intended to encourage, fare under Bruen’s “text, history, and tradition” test?

The new law was signed just two days after the Supreme Court’s first major Second Amendment decision in 12 years, New York State Rifle & Pistol Association v. Bruen, 597 U. S. ____ (2022). In Bruen, the Supreme Court struck down New York’s requirement that concealed-carry permit applicants show “proper cause” and set forth a history-only test for future Second Amendment challenges. Will the BSCA, and state laws that might be introduced under its funding incentives, pass constitutional muster after Bruen?

It’s difficult to predict how lower courts will apply Bruen’s test in practice and what impact this will have on the BSCA.  For example, there are no directly-analogous 18th or early 19th century prohibitions on gun ownership by domestic abusers or comprehensive background checks on gun purchasers.  Under a narrow interpretation of Bruen’s historical-analogue test, these laws seem destined to fail.  However, it’s possible that courts may uphold these laws under one of two approaches.  First—as two of the Bruen concurrences emphasize—laws prohibiting gun possession by certain high-risk groups and “imposing conditions and qualifications on the commercial sale of arms” are still presumptively constitutional (as stated in Heller and McDonald) because they are not covered by the Second Amendment’s plain text and don’t even make it to the historical-analogue step.  Second, it could be that historical laws motivated by a desire to keep guns out of the hands of those viewed as most likely to engage in dangerous behavior are sufficiently analogous to these modern regulations, even if historical regulations were aimed at different groups or used different legislative means.

Time To Live: Safer Gun Safes and Smarter Smart Guns

Katrina Brees Tells Her Mother’s Story

I know my mom didn’t shoot herself because she wanted to be dead. She did it because she was in unbearable pain and in the throes of a psychiatric episode. My mom, Donna Nathan, loved her life. She loved to dance to Cajun music and The Beatles. She’d grab the sides of her skirt and wave it back and forth while she sang the lyrics, stepping to the beat and tossing her red hair. She loved her partner, Pat, and their four cats, kids, and grandbabies. She lived in the home of her dreams. She had access to great health care and had successfully battled many medical conditions. For decades, her bipolar disorder had been relatively well managed with a small amount of medication and she led a very full life.

Until one day her medication stopped working. Her doctor prescribed a new drug that produced a series of extreme side effects including insomnia, tremors, panic attacks and eventually suicidality. My mom became suicidal, so she did everything she had been trained to do to protect herself from suicide.  She voluntarily committed herself into an inpatient psychiatric facility. She would commit herself three times in the 3 months before her death. She gave up all her freedoms and comforts in order to save herself from suicide.

In the last weeks before she died, our family encouraged her to go back into inpatient care where she could be protected, but she said she was too frail to go back to “jail.” Pat quit his job and watched over her full time from home instead. Her friends and family committed themselves to daily contact with her with streams of encouraging texts and calls. Between appointments, Donna was in daily e-mail contact with her psychiatrist.

Her last search on her phone was for “gun stores” and then she let her phone provide her with driving directions to the closest one, just a couple miles away. She had said she was going to the mall to buy underwear that morning. It was only a moment after she left that Pat felt deeply concerned. He called her repeatedly and got no answer and then called the police to attempt to intervene on her suicide attempt. She had never even held a gun before, but in a short time she had her first gun. A .38 caliber with a box of rose gold bullets with pink plastic centers that promote breast cancer awareness. She drove to a special spot at the park near her house and wrote a note that said “Pat, I’m sorry. I love you.” And then she shot herself and died.

Slowing Down Gun Purchases Saves Lives

Donna Nathan’s story is all too common.

Firearms are the most common means of suicide. In 2020, firearms were used in 53% of suicides. With 24,292 gun suicide victims annually, this is a leading cause of death for Americans. That’s more than 66 people each day. Many suicide attempts are impulsive, and the vast majority (90%) of survivors do not keep trying until they succeed. But people who choose firearms as their suicide method very rarely survive: about 85% of gun suicide attempts end in death.

It is a common misconception that a person who decides to attempt suicide will simply switch to another method if access to their first-choice method is denied. That’s simply not true. With respect to delaying access to firearms in particular, the best evidence comes from analysis of waiting periods for purchasing handguns: waiting periods significantly reduce gun suicide with no increase in non-gun suicides. Even if some substitution of methods does occur, the other common methods of suicide are not nearly as lethal as a firearm. For example, the estimated fatality rate of a suicide attempt using drugs is less than 5%.

Donna Nathan should have been able to have suspended her own ability to buy a gun. 

“Donna’s Law” (also known as the “Voluntary Do-Not-Sell List”) gives people the option to voluntarily and confidentially put their own names into the federal background check system to prevent impulsive gun purchase for a suicide attempt. Donna’s Law would be available to anyone, no questions asked. But it would be particularly appropriate for someone like Donna Nathan who voluntarily committed herself for inpatient psychiatric treatment. Had her commitment been involuntary, she would have been automatically added to the background check system. We already know that people recently hospitalized for mental health problems are at greatly elevated risk of suicide. Three states so far have adopted Donna’s Law. Our goal is 50 states and the federal government. Efforts are on-going.

Gun Owners Also Have Options To Prevent Suicide

Delaying access to firearms in times of crisis can be a life-saving strategy not just for first-time gun buyers like Donna Nathan, but also for gun owners. A recent California study found that a slight majority of gun suicide deaths involved guns owned for more than one year. A remarkable Public Service Announcement in Utah (where suicides make up 84% of all firearm deaths) recommends that gun owners during a depressive episode let a friend or family member “babysit” their guns. There are efforts in many states to facilitate and build on that strategy—including online maps of police stations and gun dealers that are available to babysit firearms.

But some gun owners, even if they recognize that their suicide risk is temporarily elevated, will not take advantage of the babysitting option. They may not want to reveal their struggles to friends or family. They may not have the time, energy, or means to locate other storage facilities and to drive there and back. They may not want to let go of their firearms or may not trust someone else to return the firearms later.

Technology could offer these gun owners alternatives. One such option already exists. More and more states are adopting laws requiring that firearms be safely stored. A gun safe is a good option, but not all safes are created equal. Gun owners, especially those who sometimes struggle with thoughts of suicide, should consider a gun safe with an optional time-delay function. Such a safe provides quick access during normal times, but can be programmed during crises to open only after a set time delay. On currently available time-delay safes, the delay can be anywhere from a minute to a week. The delay option could be turned off after the crisis passes. We call this a “Donna’s Safe.” Donna’s Safe is another in a long line of hand-tying techniques. One could imagine a similar idea of locking food away so that you could not snack at inappropriate times and indeed such devices already exist.

An optional time-delay feature could similarly be added to so-called “smart guns,” which have just recently entered the market. This would provide an even easier way for a gun owner to protect against impulsive self-harm. Smart guns are currently designed to be operable only by the owner—in other words, a smart gun restricts the who. A slightly redesigned smart gun with a time-delay option—aka, “Donna’s Smart Gun”—could restrict the when. Timing, with many suicides, is everything.

Gun rights organizations might object that slowing down access to firearms will cost the lives of gun owners who were therefore unable to use their firearms when they needed them for self-defense. These technologies could be designed with backdoors to unlock the gun if a trusted friend or healthcare professional chosen by the gunowner provided a separate code. It would be truly ironic, however, for gun rights organizations that claim to promote liberty to deprive gun owners from deciding for themselves that, in a period of crisis, the risk of self-harm outweighs the risk of attack. These technologies give people new ways to protect themselves. 

*          *          *

The divisive gun debate usually centers on government action or inaction. Largely missing is a recognition that private decisions, without any government mandates, may have even more power to reduce gun deaths. Donna’s Law requires a new law, but it’s a law that expands choice by giving individuals a new, voluntary way to protect themselves. Current gun owners can also delay their own access to firearms, and thereby reduce their risk of suicide, by purchasing time-delay safes already on the market and by urging smart gun manufacturers to offer a time-delay function.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]

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.

Pieces Reviewing Ayres and Vars’ Weapon of Choice

The Quinnipiac Law Review recently published a series of essays from a symposium discussion of Ian Ayres and Frederisk Vars’ recent book, Weapon of Choice: Fighting Gun Violence While Respecting Gun RightsI wasn’t able to find publicly accessible copies, but some excerpts are below (including from our own Joseph Blocher). 

  • Joseph Blocher, Two Concepts of Gun Liberty, 39 Quinnipiac L. Rev. 363 (2021)

From the Article (footnotes omitted):

Gun rights are celebrated by many as a form of liberty–“America’s First Freedom,” as the title of the NRA magazine puts it. But what kind of liberty is at stake, and for whom? Ian Ayres and Fredrick Vars’ Weapon of Choice provides a novel and important approach to those questions by proposing a system by which people can voluntarily restrict their own access to arms. The lessons it suggests are relevant to discussions of gun rights and regulation more broadly; namely, that gun rights can be understood as both positive and negative liberties (to borrow Isaiah Berlin’s famous frame from “Two Concepts of Liberty”), and that efforts to regulate guns can also be understood in those terms.

Putting liberty on both sides of the scale is important. The gun debate in the United States is usually framed as if it is a matter of constitutional liberty on one side–that of gun owners–and “policy” interests on the other. As a matter of litigation, this is not necessarily a losing frame for would-be regulators, since constitutional rights can sometimes be restricted if the government can show that the regulation in question is adequately tailored to achieving a sufficiently weighty governmental purpose. And, since no one doubts the importance of the governmental purpose in lessening the catastrophic number of fatal gun injuries (about  40,000 in 2018), the question typically becomes whether any particular law does so effectively enough. In the vast majority of litigated Second Amendment cases, the answer has been “yes.”

But the “liberty versus policy” frame nonetheless distorts constitutional litigation and public discourse, effectively stacking the deck–legally and rhetorically–against efforts to reduce gun harms.

  • Stephen G. Gilles, Weaponized Associational Choices and Second Amendment Rights, 39 Quinnipiac L. Rev. 371 (2021)

From the Article (footnotes omitted):

I commend Ian Ayres and Fredrick Vars for writing Weapon of Choice with the goals of reducing gun violence and gun deaths, while simultaneously finding common ground between gun-control advocates and defenders of gun rights. Part I of their book promises to achieve both goals: Ayres and Vars focus on gun suicides–which account for “[w]ell over half” of gun deaths in America. They have an ingenious plan to reduce gun suicides by enabling persons who are worried about their own suicidal tendencies to waive their rights to purchase–or even continue to own–a gun, using a state-sponsored registry that will feed into the federal background check system. Enabling people to protect themselves from their own suicidal impulses is a great idea, and one that gun-rights supporters should embrace.

…The subject of this essay, however, is Part II of Weapon of Choice, which I will argue cannot possibly meet its authors’ goals. In Part II, Ayres and Vars propose several laws that they argue will reduce gun violence by “Harnessing Others’ Association Preferences.” I will focus on their broadest and–from the standpoint of Second Amendment rights–most burdensome proposal, which they refer to as the “email option.” After summarizing how the email option would work, I will argue that the proposal is unconstitutional, in part for reasons that would also make it bad public policy. Finally, I will explain why proposals such as the “email option” are far more likely to further polarize the gun-control debate than to build consensus on how best to reduce gun violence.

  • Brannon P. Denning, A Skeptical Look at Associational Marketplaces and Gun Ownership, 39 Quinnipiac L. Rev. 397 (2021)

From the Article (footnotes omitted):

Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights is an important and timely addition to a polarized and tired debate about gun violence in the United States. Ian Ayres and Fred Vars offer concrete policy proposals beyond the usual jejune calls to “close the gun show loophole,” “ban assault weapons,” or implement some large-scale confiscation program. The bottom-up approach advocated by the authors holds the promise that some proposals might be adopted in some states and furnish data on which, if any, could be scaled up nationwide. It is a very important contribution to the literature on stopping gun violence and though the authors tend to favor more regulation, they write for the most part with an understanding of, and respect for, the fact that tens of millions  of Americans cherish the right to keep and bear arms guaranteed by the Second Amendment.

Specifically, the Ayres & Vars’ proposals to reduce gun suicides are an important contribution to an aspect of the gun violence problem in the U.S. that has long been overlooked in debates over gun control. Likewise, they make a valuable contribution to debates over how best to make sure that guns do not belong in the hands of people who may not legally possess them or whose mental state makes gun possession by them a hazard to public safety. The middle third of the book also proposes the creation of “associational marketplaces” that would require certification of non-possession a condition of engaging in certain types of private contracts, such as leases. I will argue here that these associational marketplaces have constitutional problems that are soft peddled by Ayres and Vars. In addition, I think that widespread implementation of association marketplaces for gun ownership and non-ownership have potentially harmful societal implications.

Part I of this essay briefly describes how Ayres and Vars envision the societal marketplaces functioning, including the limit that the authors would place on their use. Part II then sketches some potential constitutional problems; Ayres and Vars concede that constitutional values are implicated, but ultimately dismiss them as overstated. I find their dismissal of the values they say are implicated a little too breezy, and I think that they overlook other, possibly more serious, constitutional problems with their proposal. Part III then argues that whatever the merits of the constitutional case against associational marketplaces, there are implications for society as a whole that counsel against their adoption.

  • Katrina Brees, The Story Behind Donna’s Law, 39 Quinnipiac L. Rev. 359 (2021)

From the Article (footnotes omitted):

As a teenager, I was the first to diagnose my mother as bipolar. At the time, it was called Manic Depression, and I found her extreme episodes labeled as such in a psychology book I found at the local library. She would be voluntarily hospitalized a dozen or so times more over the years.

June 26, 2018 we ran out of time.

She searched on her phone for “gun stores New Orleans” and left her house for the gun shop. Her partner called the police, hoping they would be able to intercept the inevitable. She purchased a Smith and Wesson 38  and a box of pink bullets that claimed to support breast cancer. She drove to the park and shot herself. It was all very quick.

Two days after her suicide, I posted this on my Facebook page:

My mom bought a gun in New Orleans on Tuesday and drove to the Tree of Life and opened the box and shot herself. I’m telling you all because gun control is not only about homicide, it is twice+ as likely to be a suicide. People suffering from bipolar and depression have no way to protect themselves from a suicidal gun purchase in Louisiana. I wish my mom could have registered herself as being unfit to buy a gun. She would have signed it years ago to protect herself and our family. I hope one day we can give people with bipolar and depression a better chance at living, but we are a long way off. I’m sorry to be so raw, I feel raw. I can’t believe how impossible it was to get my mom help and how easy it was for her to buy a gun. RIP Mama Donna Nathan. It’s OK to share this if you like.

The post went viral. The media helped with sharing my story and supporting my efforts to create a voluntary registry to prevent suicidal gun purchases. I had recently been hired by the Republican party as a sculptor to create art for their convention. My employer saw the articles and promised to help find me a sponsor. As the former head of the Louisiana Republican Party, he was very helpful. The convention would prove to be an amazing opportunity. I was able to make the connections I needed and get bipartisan support for Donna’s Law. While it did not pass the House in Louisiana, it has since passed in Virginia and I look forward to supporting families across America as they attempt to adopt this life saving tool.

Cars, Homes & Emergencies: Implications from Caniglia for Gun Laws

Earlier this week, the Supreme Court issued a unanimous decision in Caniglia v. Strom. At issue in the case was whether police could enter a home and search and seize items without a warrant when conducting “community caretaking functions” (i.e., not traditional criminal investigation). The Court had held in 1973, in Cady v. Dombrowski, that police could search an impounded vehicle for an unsecured gun without a warrant. That case spawned a debate in the lower courts and among scholars about whether the so-called “community caretaking exception” to the Fourth Amendment’s warrant requirement extended beyond cars in public places and into the home.

Like Cady, Caniglia grew out of a concern over guns. The case began when Edward Caniglia’s wife called the police to perform a welfare check after he had, the night before, placed a handgun on the table and asked her to shoot him. (She left thereafter and spent the night at a hotel.) Police accompanied Caniglia’s wife to the house the next morning, met him on the porch, and called an ambulance to take him for a psychiatric evaluation. After Caniglia was gone, police entered the home and seized two handguns. Caniglia later sued the police, arguing that the entry into his home and firearm seizure violated his Fourth Amendment rights. The lower courts rejected the claim, with the First Circuit concluding that Cady created a warrant exception that extended into the home. (Caniglia also raised a Second Amendment claim in the court below, but did not maintain that claim at SCOTUS, as we’ve noted.)

The Supreme Court, in an opinion by Justice Thomas, read Cady more narrowly. The Court noted that it has previously recognized several exceptions to the warrant requirement, including “when certain exigent circumstances exist,” like the need to render emergency aid to a home occupant or “to protect an occupant from imminent injury” (p.3). But the Cady rule, the Court insisted, did not create a whole new categorical exception when officers are performing community caretaking functions. Indeed, the Court insisted that Cady was fundamentally different because it did not involve the home. “What is reasonable for vehicles is different from what is reasonable for homes” (p.4). The Court thus sent the case back to the lower court. After Caniglia, it is clear there is no such thing as an exception to the warrant requirement for home entry based on a category of police action that can be called community caretaking.

The series of separate concurring opinions are also noteworthy. Chief Justice Roberts, writing for himself and Justice Breyer, wrote a one paragraph concurrence to stress that nothing in the Court’s opinion was contrary to the established rule that “[a] warrant to enter a home is not required . . . when there is a need to assist persons who are seriously injured or threatened with such injury” (p.1). Justice Kavanaugh, writing for himself, wrote to “elaborate” on the Chief Justice’s concurrence. His opinion briefly traced the rule allowing for warrantless entry to render aid to an injured or possibly injured person. This rule and the other warrant exceptions, he noted, were drawn from “common-law analogies and a commonsense appraisal of what is ‘reasonable’” (p.1). Under his view of the exigent circumstances exception, the rule “permit[s] warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now” (p.3-4). Notably, he emphasized, this does not require imminence or immediacy. He provided several examples where he thought it obvious police could enter a home without a warrant, including a woman who calls 911, says she is contemplating suicide and has firearms in the home, and does not answer the door when police arrive. “The Fourth Amendment does not require officers to stand idly outside as the suicide takes place” (p.4).

Justice Alito also wrote separately for just himself, highlighting specific areas the Court’s decision did not reach and suggesting that not “all searches and seizures conducted for non-law-enforcement purposes must be analyzed under precisely the same Fourth Amendment rules developed in criminal cases” (p.2). He specifically noted the increasing adoption of Extreme Risk Protection Order laws (aka red flag laws) and how “[t]hese laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons” (p.3). The Court’s opinion did not address issues that may arise from those laws, he wrote.

Of course, I can’t help see this case through the guns lens. It has potential ramifications for both challenges to laws like ERPOs on Fourth Amendment grounds and for the pending Second Amendment challenge to New York’s concealed-carry licensing law. As to the Fourth Amendment, it seems to me that the justices aren’t too keen on restricting the ability of states and law enforcement to render aid when a person might harm himself or others—something that the ERPO laws expressly attempt to do, with (as Joseph and I have argued), due process protections built in. The Chief Justice and Justice Kavanaugh’s concurrences in particular seem eager to provide assurances that police can respond when necessary to potentially save a life.

As to the Second Amendment, the Court’s emphasis on the significance of the home—and what sets it apart from ordinary activity in public—might have some application in Corlett. As Lenese Herbert put it on SCOTUSblog, the Court’s decision in Caniglia is “a reminder that there is, in fact, no place like home.” Historically, states have had broader leeway to regulate guns in public than guns in the home. The Second Amendment doctrine the Court develops might work similarly to its Fourth Amendment rules. Just as Justice Thomas emphasized that Fourth Amendment reasonableness might require different rules for the home and for cars, so too the Second Amendment might mandate different analyses for gun laws regulating home possession and those regulating public carry. Indeed, Justice Thomas reiterated the Court’s prior statements that the “very core” of the Fourth Amendment guarantee is “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” (p.3) even though the Fourth Amendment’s text makes no distinction between one’s home and her person, papers, or effects. A similar core vs. non-core argument has been used to distinguish between the Second Amendment’s apex protection for keeping an operable handgun in the home for self-defense and its non-core protection for carrying a loaded gun in public. Only time will tell if the eventual Corlett majority extends these principles from its Fourth Amendment jurisprudence.

Special Journal Issue with Center Contributors – Gun Violence in America: An Interdisciplinary Examination

The Journal of Law, Medicine, & Ethics recently published a special volume, Gun Violence in America: An Interdisciplinary Examination. The volume was pulled together and edited by Yale Law School’s Ian Ayres, Abbe Gluck, and Tracey Meares with articles largely co-authored with law students from their gun violence seminar last year. Joseph and I have co-authored articles in the volume, which are highlighted below. The whole set of articles look incredibly fascinating and certainly worth the read.

Reva B. Siegel & Joseph Blocher, Why Regulate Guns?

Courts reviewing gun laws that burden Second Amendment rights ask how effectively the laws serve public safety — yet typically discuss public safety narrowly, without considering the many dimensions of that interest gun laws serve. “Public safety” is a social good: it includes the public’s interest in physical safety as a good in itself, and as a foundation for community and for the exercise of constitutional liberties. Gun laws protect bodies from bullets — and Americans’ freedom and confidence to participate in every domain of our shared life, whether to attend school, to shop, to listen to a concert, to gather for prayer, or to assemble in peaceable debate. Courts must enforce the Second Amendment in ways that respect the public health and constitutional reasons a democracy seeks to protect public safety. Lawyers and citizen advocates can help, by creating a richer record of their reasons in seeking to enact laws regulating guns.

This inquiry is urgent at a time when the Supreme Court’s new conservative majority may expand restrictions on gun laws beyond the right to keep arms for self-defense in the home first recognized in District of Columbia v. Heller in 2008.

Joseph Blocher & Bardia Vaseghi, True Threats, Self-Defense, and the Second Amendment

Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities that can be legally proscribed? This article finds guidance in the First Amendment doctrine of true threats, which permits punishment of “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual.” The Second Amendment, like the First, should not be read to protect those who threaten unlawful violence. And to the degree that the constitution requires a culpable mental state (mens rea) in such circumstances, the appropriate standard should be recklessness.

Gabriel A. Delaney & Jacob D. Charles, A Double-Filter Provision for Expanded Red Flag Laws: A Proposal for Balancing Rights and Risks in Preventing Gun Violence

In response to the continued expansion of “red flag” laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category — “reporting party” — that enables a broader social network, such as co-workers or school administrators, to request that a law enforcement officer file a petition for an Extreme Risk Protection Order (ERPO). A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers (first filter), who must seek an ERPO from the court if they find the reporting party’s information credible. That information is then transmitted to the court (second filter) as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that (1) widens the reporting circle in order to feed more potentially life-saving information into the system, (2) mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights.

The Biden Administration Gun Plan

On his campaign website, President-Elect Joe Biden lists several of his administration’s priorities for firearm regulation. Since the actual policy proposals are not spelled out in depth, it is hard to evaluate the precise details of his plan. And, of course, the ones that require congressional action are much less likely to pass if the Senate remains in Republican hands. As proposals get introduced and debated after the inauguration, we will be blogging about their legal merits. For now, we’re highlighting those of his proposals that touch on areas we’ve covered on the blog and collecting the posts discussing those topics.

Repeal the Protection of Lawful Commerce in Arms Act (PLCAA)

Ban Assault Weapons (AWs) and Large-Capacity Magazines (LCMs)

Regulate Existing AWs under the National Firearms Act (NFA)

Require Universal Background Checks / Close Other “Loopholes”

Create Firearm Relinquishment Program for Prohibited Possessors

Incentivize State Extreme Risk Laws

Incentivize Smart Guns

Litigation Highlight: Doe v. Governor of Pennsylvania

In a decision earlier this week, Doe v. Governor of Pennsylvania, the Third Circuit rejected a facial due process challenge by two men whose mental health commitments rendered them ineligible to possess firearms. They challenged a Pennsylvania law that forbids anyone who has been “committed to a mental institution for inpatient care and treatment” under a specific state procedure from possessing firearms. The decision—and the reasoning of both the majority and the concurrence—could well have an impact on both Second Amendment and due process challenges to Extreme Risk Protection Order laws (colloquially known as “red flag” laws). Joseph and I argue in this forthcoming Virginia Law Review article that these laws can withstand due process challenges. Judge Fisher’s concurrence in this case adds even more support to that conclusion.

Under Pennsylvania law, people can be involuntarily committed to a mental institution when they present a clear and present danger to themselves or others. Emergency examinations are authorized upon (1) certification by a physician at a treatment facility, (2) warrant by a county mental health administrator, or (3) application by a physician or other authorized person who personally observes behavior indicating a need for examination. Those taken to a facility pursuant to this procedure must be evaluated within two hours to determine if they are “severely mentally disabled” and pose a “clear and present danger” of harming themselves or others to warrant involuntary commitment. This kind of commitment by itself renders a person ineligible to possess guns. Pennsylvania provides “three post-deprivation remedies to those who seek recovery of their firearm rights: (1) a determination by a court that an applicant is not a risk to himself or others, (2) a challenge to the accuracy of the mental health record, and (3) an expungement of the commitment record because of insufficient evidence.”

The plaintiffs challenged the law as a deprivation of their Second Amendment liberty interest without due process. The panel surveyed Heller and the Third Circuit’s own post-Heller case law to determine whether the Second Amendment was implicated at all. It noted that the circuit had previously concluded, in Beers v. Barr, that the historical class of mentally ill individuals excluded from the Second Amendment included those who were “considered dangerous to the public or to themselves.” It further explained:

As to who is vested with authority to determine that one is a danger to oneself or the public, and on what grounds that person may do so, we now make explicit what was implicit in Beers, that we defer to the relevant statute’s reasonable standards and designations.

It found “no reason to second-guess” Pennsylvania’s law investing physicians with authority to make the determination. “Thus, once a person has been involuntarily committed under [Pennsylvania law], that person has joined the class of those historically without Second Amendment rights.” The court then concluded that only two types of challenges remained open to the plaintiffs: (1) a procedural due process challenge to the process for involuntary commitment itself, or (2) a substantive Second Amendment challenge to the notion that involuntary commitment falls within Heller’s exception for mental illness. But the panel determined that the plaintiffs had expressly disavowed both of those challenges, and it therefore affirmed the lower court’s order granting the state summary judgment.

In an opinion concurring only in the judgment, Judge Fisher would not hold that those involuntarily committed under Pennsylvania law lose their Second Amendment rights. Instead, he would decide the procedural due process challenge on the ground that the state’s process was adequate to comply with the Due Process Clause: “[A]ssuming without deciding that Section 302 committees retain their Second Amendment right to possess firearms—and thus have a protected liberty interest—there is no Fourteenth Amendment violation because the State’s post-deprivation procedures provide Section 302 committees adequate due process.” In reaching that conclusion, Judge Fisher rejected the plaintiffs’ contention that they are constitutionally entitled to pre-deprivation process before permanent deprivation of their Second Amendment rights. He performed the Mathews v. Eldridge balancing test and found the factors weighed in favor of not requiring such pre-deprivation process here. The risk of error is low because a physician has to determine the person posed a clear and present danger of harm, and “Pennsylvania has a prevailing interest in public safety and ensuring that potentially dangerous individuals are not permitted to own deadly weapons.” He also concluded that the post-deprivation procedures the state provides are constitutionally adequate.

Scholarship Highlight: New Article Raising First Amendment Concerns With Some ERPO Laws

As Joseph and I continue editing our forthcoming article on Extreme Risk Protection Order laws–and how these laws can withstand due process challenges–more legal scholarship on these laws is cropping up. Out now is an article raising concerns about the implications of such laws that look to First Amendment protected activity as a factor in the analysis.

  • Clay Calvert & Ashton Hampton, Raising First Amendment Red Flags About Red Flag Laws: Safety, Speech and the Second Amendment, 30 Geo. Mason U. Civ. Rts. L.J. 351 (2020).

From the Introduction (footnotes omitted):

This Article examines another troubling aspect of red flag laws yet to be thoroughly addressed in law journal articles that have analyzed these statutes. That issue is how these laws implicate First Amendment speech rights when an individual’s writings, words, posts, and even media consumption may be used as evidence to obtain an ERPO. First, this Article analyzes how speech and speech activities traditionally safeguarded by the First Amendment may be turned against an individual under red flag laws. Second, this Article evaluates how the term “threat” as used in these statutes may be interpreted loosely and colloquially by both law enforcement officials and judges without applying the Supreme Court’s “true threat” doctrine. The Article then offers five suggestions for how these issues might be cured. The authors’ goal is not to have red flag laws jettisoned from the pages of code books. Rather, it is to ensure that freedom of expression is not unnecessarily sacrificed or chilled by laws that serve the patently compelling interests of preventing bloodshed and saving lives.

Analyzing Maryland Extreme Risk Law Data

This past week, Joseph and I just finished another round of edits on our forthcoming Virginia Law Review article, Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process. Doing those edits, and working on another draft paper related to extreme risk laws, led me to dive more deeply into the statistics that are currently available. Maryland has some decent data, so I’m starting there in today’s post.

Maryland’s recent Extreme Risk Protective Order (“ERPO”) law took effect in October 2018. Under that law, several groups of individuals may petition for an ERPO: (1) law enforcement officers, (2) family or household members and other specified relationships of similar nature, and (3) certain healthcare workers.

Most state frameworks have two kinds of ERPOs – temporary ones issued after an ex parte hearing and final ones entered after an adversary hearing. Maryland has three: (1) “interim” orders that a court commissioner enters, which can ordinarily only last 1-2 days, (2) “temporary” orders that a district court judge issues, which can last 7 days, and (3) “final” orders, which can last up to a year. Typically, interim orders only occur when the district court is not open, such as late at night or on weekends, when a court commissioner is all that’s available. Court commissioners cannot issue temporary orders, only interim ones. A district judge, as well as issuing temporary orders, is also permitted to proceed directly to a hearing for a final order if the respondent appears at the hearing and consents or if he had a prior interim order against him.

Because of this complicated structure, the Maryland data on petitions can be hard to put into perspective. A temporary order can occur without an interim order, and a final order can occur without a temporary order or interim order. The raw data comparing, for example, interim orders with final orders does therefore not give a complete measure of how often petitioners who seek or obtain an interim or temporary order secure a final one (and, thus, even less than usual what an “erroneous” ERPO would look like). But it can help identify trends and provide aggregate information.

The state provides data by district and month; for the chart below, I aggregated this data for each year and calculated the percentages. Because there was no clear data on initial petition filings themselves—and what manner they were handled in (interim, temporary, or straight to final)—I break down the data by hearing type and order.

This data does not, to my eyes, support the notion that judges are rubber-stamping petitions. Temporary ERPOs are only issued after hearings (which can be ex parte but need not be) in about 3 of every 5 cases. To be sure, the way the data is recorded does not allow exact comparison; these are aggregate statistics on the number of hearings held that year and the number of granted petitions that year. That caveat is especially important for the monthly data below, with some months showing more granted petitions than hearings on petitions of that type.

Finally, ERPO hearings, which can be considered a fairly reliable proxy for petition filings, have remained pretty consistent over time. But there does seem to be a noticeable recent uptake, possibly as a result of added tensions related to Covid-19. Or perhaps the rise is the courts making up for the dip that occurred around the time of courthouse closures earlier this year.


Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

Jefferson Davis (not that one), a Gilchrist County Sheriff’s deputy, allegedly threatened to kill another deputy after he discovered that his girlfriend had been involved with the man. His colleagues sought and obtained a Risk Protection Order (“RPO”) under Florida’s new “red flag” law. Davis appealed, raising a number of challenges to the RPO entered against him and to Florida’s entire scheme. In Davis v. Gilchrist County Sheriff’s Office, Florida’s first district court of appeal rejected those challenges. This case represents one of the few rulings on the constitutionality of “red flag” laws generally and the first on Florida’s law. The Florida court joins courts in Indiana and Connecticut in upholding these types of laws against constitutional challenge.

As I’ve written about previously, “red flag” laws—also known as Extreme Risk Protection Order laws—permit law enforcement to temporarily remove firearms from an individual that a court determines is a danger to himself or others. Florida’s law, like most states, allows both temporary, emergency orders, and longer (one year) orders. Some Second Amendment advocates have argued that these laws violate a respondent’s due process rights. But, in fact, the Supreme Court has regularly recognized that emergency situations often require quick action (like a temporary, ex parte RPO) that permits postponing a hearing for a short period of time.

Florida’s appeals court recognized the procedural protections built into Florida’s law. It noted that “[t]he statute . . . requires a hearing within fourteen days of an RPO petition being filed, thus affording a respondent due process and a prompt opportunity to resist a final order.” Not only that, but:

the statute incorporates an added due process safeguard by requiring proponents to meet the heightened “clear and convincing” burden of proof standard. Compare § 790.401(3)(b), Fla. Stat. with e.g. Wash. Rev. Code. § 7.94.040(2) (requiring a showing of significant danger by the less stringent “preponderance of evidence” standard). Furthermore, the duration of the RPO may not exceed twelve months, § 790.401(3)(b), and the statute contains a mechanism whereby the respondent can request early termination of the order. § 790.401(6), Fla. Stat. Finally, the statute clearly requires the listed factors be considered within a specific context—the threat of gun violence. § 790.401(3)(b), Fla. Stat.

Davis also challenged the law as void for vagueness. He argued that “it leaves too much to the discretion of the trial court and law enforcement in determining what constitutes ‘significant danger,’ ‘relevant evidence’ [of that danger], and ‘mental illness.’” The court, however, appealed to common usage to find this language fairly specified:

In our view, there is nothing inherently vague about the terms Appellant would have us scrutinize. We interpret the word “significant” (as in “significant danger”) in a manner consistent with standard dictionary synonyms such as “noteworthy, worthy of attention and consequential; as opposed to “trivial.” “Significant” is no more or less “vague” than the word “imminent” found in the domestic violence injunction statute (§ 741.30, Fla. Stat). The same is true of the commonly used word, “relevant”.

The court’s decision will likely prove to be influential among Florida courts considering the coming challenges to Florida’s new law. As a recent Sun Sentinel report shows, Floridians have been making use of the new law to disarm those who are found to be dangerous to themselves or others.

Duke Panel Discussion on Extreme Risk Laws

Last night at Duke, we held a fantastic panel discussion with distinguished guests Professors Kristin Goss & Jeffrey Swanson and North Carolina Representative Marcia Morey to discuss Extreme Risk laws, often called Red Flag laws. These are laws that allow law enforcement to temporarily remove firearms from individuals that a court determines are a danger to themselves or others. If the person asking the court to temporarily remove the firearms proves their case, the court can enter what’s usually called an Extreme Risk Protection Order (or ERPO for short) that permits law enforcement to disarm the person who has been found dangerous.

Seventeen states and the District of Columbia currently have Extreme Risk laws on the books. More than a dozen of those have been passed in the last two years. In other words, there’s clearly momentum behind this type of legislation.

One important thing to note is that these are all state-level interventions. There is no federal Extreme Risk law, and the current proposals about federal legislation would not create one. Instead, the federal proposals are designed to provide grants to incentivize states to pass their own Extreme Risk laws that satisfy certain standards. The proposed federal legislation would also make it a federal crime for someone under an ERPO to possess guns, so that a person subject to a North Carolina ERPO couldn’t simply jump into Virginia and purchase a gun. Because the Extreme Risk laws are state-level interventions, the laws can vary quite a bit.

There are several main features of Extreme Risk laws, and the state laws differ on these dimensions. First, the states vary in who can petition for an ERPO; all states allow law enforcement to seek an ERPO. And most allow family or household members to do so in addition to law enforcement. Several expand the pool farther, such as allowing mental health professionals, school administrators, or coworkers to petition for an ERPO.

Second, the states differ in how the petitioner can get emergency relief. This often happens in what’s called an ex parte proceeding, where the petitioner shows that the person against whom the ERPO is sought (generally called the respondent) is an imminent risk of harm to himself or others; the proceeding is called “ex parte” because it can take place without the respondent. The states vary in the showing the petitioner must make to get an emergency ERPO – the majority require reasonable, probable, or good cause, some require a preponderance of the evidence (a showing of more likely than not) and others use a “clear and convincing” standard, which is generally the hardest burden to meet in civil cases. None require proof beyond a reasonable doubt, which is generally restricted to criminal cases.

Third, states differ in how long the emergency, ex parte ERPO can last before the Respondent is given a chance to respond at a hearing. The states range from permitting these ex parte orders to remain in effect for just a day or two in Maryland all the way up to 21 days in California and Oregon. The most popular number among the states is 14 days for an ex parte ERPO.

Finally, the states differ in what the petitioner must to do obtain a full ERPO, which typically lasts for six months or a year. About 2/3 of the states require the petitioner to make her case by clear and convincing evidence—again, the most demanding civil burden of proof—and the other 1/3 permit a full ERPO based on showing a preponderance of the evidence.

Extreme Risk laws have been effective at generating bipartisan consensus in many states. But there are critics who say these laws run afoul of the Second Amendment or violate the Respondent’s due process rights. Joseph and I are at work on a paper that will discuss these constitutional dimensions and plan to post about that in more depth on this blog in the coming weeks. Briefly, so long as procedural mechanisms are provided to the Respondent that meet the requirements of Constitution’s guarantee of due process, the Second Amendment arguments to temporary removal based on a finding of dangerousness are likely to fare poorly given the current state of the law.

As for due process, the Supreme Court has said that, in general, due process requires notice of the government action and an opportunity to be heard. In exceptional circumstances, the opportunity to be heard can be postponed until after the deprivation has occurred. Thus, the idea of an ex parte, emergency ERPO is consistent with the Supreme Court’s recognition that emergency situations justify quick actions necessitating seizure of property before a hearing is held.

A video from the event will be posted on the Center’s website when it becomes available.