Constitutionality of 'Red Flag' Laws in US

Introduction

A few weeks back my six-year-old son participated in a drill, where he had to duck along with his other friends as the teacher closed the door and pretended to lock it. They were being taught to protect themselves from a ‘bad guy’ with a gun. What is unfortunate is that this drill is ‘routine’ in many schools across America. The images of small kids and teenagers running outside school buildings with their arms up has become an all too familiar sight. And as a mother, I write this with a lump in my throat that I really hope that the drill never becomes our reality.

While school shootings dominate headlines and rightly so, even on an everyday basis firearm related deaths and injuries, including suicides, are high. Nearly 1,300 children died annually in U.S. from firearm injuries from 2012 to 2014 and an additional 5,790 suffered non-fatal gunshot wounds.[1] While in 2018 alone, the CDC reported the total number of firearm deaths to be at 39,740.[2] At least 15,292 people were fatally shot in the United States in 2019, excluding suicides and that’s a roughly 3 percent increase over 2018.[3] These figures tell an alarming story of a ‘public health’ crisis looming large over one of the richest and most powerful nations in the world.  It is in this context that this paper will examine a relevant ‘Gun Control’ measure called ‘Extreme Risk Protection Order’ (also known as ‘Red Flag’ Laws and referred to as such in this paper) and if it violates the Second Amendment[4] to the U.S. Constitution. The answer in my view is that it does not likely violate the Fundamental Right enshrined in the Constitution. This affirmative answer will be elaborated upon in the following paragraphs as we explore background on gun control legislations in general, the origins and expanse of the ‘Red Flag’ laws, cases which assess the constitutionality of this Legislation and then an effective conclusion taking all factors into consideration.

Genesis of ‘Red Flag’ Laws

Gun related crimes, injuries and suicides are a cause of enormous concern as very few nations in the world have such relaxed gun laws. The origin of this dates to the Second Amendment enshrined in the Constitution.[5] As per the Second Amendment, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”[6]

Therefore, the right to bear arms was and is considered a sacrosanct one and there was no talk of any regulation until major assassinations of President Kennedy, his brother, Robert Kennedy and civil rights leader, Martin Luther King, rocked this nation. These gruesome incidents led to the first most significant piece of legislation on the subject–Gun Control Act of 1968[7]. The assassinations or attempted assassinations of famous people along with a spate of mass shootings and school shootings helped create awareness for what is commonly known as ‘gun control’ regulation or ‘common sense’ gun laws.

‘Common sense’ gun laws are about closing loopholes in existing laws and bipartisan advocacy for enacting new legislations to prevent needless violence. Some obvious, simple, and evidence-based solutions have been devised by gun control groups, researchers, lobbyists, and politicians alike to prevent bloodshed and one such key measure is known as ‘Red Flag’ laws. The Orders issued under these Laws prevent individuals at high risk of harming themselves or others from assessing firearms by allowing families and police to obtain a court directive basis evidence that the person poses a significant danger. 

Constitutionality of ‘Extreme Risk Protection Order’ Laws

The significance of ‘Red Flag’ laws lies in the fact that this move has received bipartisan support from Democrats and Republicans alike. There have been studies at state level and anecdotal evidence as well to prove the efficacy of these laws. An article published in the ‘Annals of Internal Medicine’ elaborates on the success of these laws in prevention of mass shootings in the State of California, “the cases suggest that this urgent, individualized intervention can play a role in efforts to prevent mass shootings, in health care settings and elsewhere.”[8] Several studies suggest that these laws have a substantial effect on prevention of suicides (more than on prevention of mass shootings), the most common way that guns are used to kill Americans.[9] Research in Connecticut and Indiana found that for every 10 to 20 confiscations under the laws, there was one fewer death than would otherwise have been expected.[10]

These laws are still far from being unchallenged. There has in fact been severe opposition from several gun rights advocates, bodies, lobbying groups and associations, including the most significant gun advocacy group, NRA (National Rifle Association).

While many gun rights activists question the broader government outreach in case of these laws, the principal opposition is centered around two main issues - 1. whether these ‘Red Flag’ Laws are ‘constitutional’ considering the Second Amendment, and 2. whether these laws authorize law enforcement to conduct illegal searches and intimidate people?

This paper will only examine the first question of constitutionality of ‘Red Flag’ Laws versus the Second Amendment. The likely answer is that ‘Red Flag’ laws are ‘constitutional’ in wake of the Second Amendment.

Governing Rule for ‘Extreme Risk Protection Order’

National Bills addressing ‘Red Flag’ laws have been stalled in the Congress. The most important piece of Regulation still pending as a Bill at the Federal level is known as the ‘Extreme Risk Protection Order Act, 2019’[11]. This Bill was introduced to the Congress in February 2019 and encourages states to enact laws that can allow family members or law enforcement officers to petition a judge to temporarily remove firearms from a person deemed to be a threat to him/herself and/or the society. As per this Bill, an Extreme Risk Protection Order means a written order signed by a Magistrate (or someone with comparable authority) whose primary purpose is to reduce the risk of firearm related death or injury by prohibiting a named individual from owning, receiving, and possessing a firearm or by requiring surrender of an existing firearm.[12]

The Extreme Risk Protection Order Act of 2019 would establish a program under the Department of Justice (DOJ) to award grants to states to implement extreme risk laws. The legislation provides minimum standards that states must meet or exceed to be eligible for grants.[13] However, even before this Bill was introduced at a federal level, 19 states and Washington D.C. have had some form of ‘Red Flag’ laws.[14] In fact most states acted and passed ‘Extreme Risk Protection Order’ Act much before this Bill under federal consideration. In fact the first such Act in U.S. was passed as early as 1999 by the State of Connecticut in response to a mass shooting at a lottery’s headquarters.[15] This was followed by the State of Indiana in 2005, when a man diagnosed with mental illness went on a shooting rampage.[16] Again, after a period of lull, these laws were brought to the fore in 2014 post a mass shooting near University of California.[17] California enacted an ‘Extreme Risk Protection Order’ Law[18] in 2014, followed soon after by its neighboring states of Washington and Oregon. But it was not until the mass shooting in Parkland, Florida[19] in 2018 that these laws became a national talking point and it led to quick action on part of many other states.

In most states which have ‘Red Flag’ laws, both law enforcement officers and family members may file a petition for restraining access to a firearm. A few states however expanded this to include other community members as well, such as in California[20] - employers, school workers and coworkers may petition for an order; certain healthcare workers are eligible to petition in Maryland[21] and in New York[22] again, school personnel may petition.

Due to the lack of uniformity at the Federal level, different states have different procedures in place for application of an order. However, in most cases, the requestor needs to sign and spell out in an affidavit, the reason(s) for demanding such an order. Nature of proof depends on each case and the kind of order sought, whether it is temporary or final. Often, ‘Extreme Risk Protection’ Orders ask the respondents to immediately turn over their guns. However, in some cases of resistance, they may need a search and seizure order to look for and then take possession of the firearms. There has been resistance from certain sheriffs and police departments as well as other civil groups on constitutionality of ‘Red Flag’ laws. Some have openly defied and refused to impose them citing the ‘Second Amendment’[23]. This has also led to legal challenges in several state courts of U.S. as we will examine in the next section below.

Are ‘Red Flag’ Laws a violation of the Second Amendment?

The short answer here is ‘No’. ‘Red Flag’ Laws do not pose a threat to the ‘Second Amendment’[24]. While there is no one federal uniform legislation and no one Supreme Court case which specifically addresses this topic, the general rule here is that ‘the right to keep and bear arms’ as conferred by the Second Amendment is not an unlimited one.[25] For example: concealed weapons prohibitions are not considered an infringement of the Second Amendment.[26] Second Amendment does not prohibit laws which make possession of guns illegal by convicted felons, mentally ill and in sensitive surroundings such as a school or government establishments.[27] This general rule may be interpreted to include specific legislations like ‘Red Flag’ Laws which prohibit the possession of firearms by persons who are considered a risk to their own life or to the life of others. To date, ‘Red Flag’ Laws have been upheld against Second Amendment[28] challenges. As we will see in the following paragraphs, Courts in Florida, Connecticut, California and Indiana have so far upheld firearm seizure laws as not challenging the state or federal constitutional provisions.

In District of Colombia v. Heller[29], a special police officer and others brought an action seeking on Second Amendment grounds to enjoin the District of Colombia from enforcing gun control statutes. In this case, Justice Scalia while delivering the majority opinion clearly stated that the Right to bear firearms is not unfettered, “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”[30] The Court emphasized that the right to bear arms should be restricted to “law abiding and responsible citizens”.[31] Hence it was clearly recognized and outlined in this case that reasonable restrictions on the right guaranteed by the Second Amendment do not amount to its breach and that such restrictions are still constitutional.

Similarly, when in Otis McDonald, et al. v. City of Chicago, Illinois, et al.,[32] the petitioners challenged Illinois cities’ handgun ban and several related city ordinances as violating the Second Amendment[33] of the Constitution, the Supreme Court reassured quoting the decision in previous decision in the Heller[34] case that their holding does not cast doubt on every legislation regulating firearms, “We repeat those assurances here…incorporation does not imperil every law regulating firearms.”[35]

In Davis v. Gilchrist Cty. Sheriff's Office[36], a constitutional challenge to Florida’s “Red Flag” laws[37] was rejected by the Court of Appeals. In this case, the County Sheriff’s office petitioned seeking risk protection order for removal of Deputy Sheriff’s firearms. The court opined that “when reviewing a statute or ordinance that impairs the exercise of a fundamental right, the court must apply a strict scrutiny test to determine whether the legislation is written to address a specific and compelling state interest . . . [H]ere, the prevalence of public shootings, and the need to thwart the mayhem and carnage contemplated by would-be perpetrators does represent an urgent and compelling state interest."[38] Thus, the court ruled that the "red flag" law was not vague or overly broad and quoted a legislative explanation that found a "need to comprehensively address the crisis of gun violence, including but not limited to, gun violence on school campuses."[39]

In Donald Hope v. State of Connecticut[40], the plaintiff appealed to the Appellate Court of Connecticut that the Connecticut General Statute § 29-38c[41] (seizure of firearms and ammunition from person posing risk of imminent personal injury to self or others) violates the Second Amendment[42] to the United States. The court dismissed this claim, it held that the law in question does not violate the Second Amendment[43] as it does not forbid law-abiding, responsible citizens from keeping a firearm for their defense but only restricts for 1 year the right of those judged as posing an imminent harm to themselves or others from keeping a gun. The statute is rather an example of “presumptively lawful regulatory measures” as explained in the case of Heller[44].

In City of San Diego et al. v. Esther Boggess[45], the City petitioned for seizure of firearms of a patient committed to emergency psychiatric unit for 72-hour evaluation. The patient appealed that the seizure is invalid under the Second Amendment[46]. The Court here clarified in no uncertain terms that California Statute § 8102[47] (confiscation and custody of firearms or other deadly weapons; procedure for return of weapon; notice; destruction of weapon), which allows the state to seize firearms from persons detained for mental illness examination and likely to cause a danger, did not violate the Second Amendment[48]. The court ruled that the plaintiff had not demonstrated California's statute to be facially unconstitutional, and California State therefore could continue to enforce the law to protect the health, safety, and welfare of its citizens.[49]

In Robert E. Redington v. State of Indiana[50], the plaintiff challenged the constitutionality of I.C. § 35-47-14-1(a)(2)(B)[51], or the State’s ‘Red Flag’ laws. These laws generally allow law enforcement to seek a court order temporarily restricting a person’s right to firearms if that person shows signs that they are dangerous to the public or themselves.[52] In this case, the petitioner, Robert Redington’s actions and possession of several firearms caused alarm and there was likelihood of his being of an unsound mind.[53] Considering the ‘constitutionality’ of ‘Red Flag’ law, the Court of Appeals of Indiana stated that firearm seizure and retention statute was rationally calculated to advance the legitimate governmental purpose of prohibiting the mentally ill from possessing firearms, and it was a valid exercise of police power.[54] The court went on to state that statute's impairment of owner's right to bear arms, based on finding of dangerousness of the owner, was not of substantial magnitude. Therefore, it was concluded that the state’s ‘Red Flag’ statute did not violate the right to keep and bear arms and that the provision was not an unconstitutional undertaking.[55]

Conclusion

APM Research Lab/Guns & America/Call To Mind survey[56] found in 2019 that most Americans support ‘Red Flag’ laws. Yet unfortunate part about the ‘Red Flag’ laws is that they are not widely used or known.[57] One reason for this is the lack of a national law on the topic and this is despite bipartisan support from law makers. Cloud has been cast over this law in light of the ‘Second Amendment’[58] which has led to a widespread misunderstanding that this is in defiance of the Constitution. Evidence suggests that so far this fear is baseless as has been spelled out above through decisions of various state courts. Yet the question remains far from settled and there will not be a conclusive answer until the Congress emboldens itself to pass the pending Bill on this topic. As mass shootings and suicides by guns continue to dominate national headlines, a national legislation is imperative.

One can never predict with certainty as to how the Federal Supreme Court will vote on the ‘constitutionality’ of this specific legislation, if it ever gets challenged but given the several precedents at the state level, the widespread public support and outrage that shootings lead to and the cross-party backing for this law, it looks almost certain that if this is contended in the U.S. Federal Supreme Court, then it is likely to withstand the te

[1] Dalia Sofer, Gun Violence and Children, American Journal of Nursing, AJN, American Journal of Nursing: September 2017 - Volume 117 - Issue 9 - p 14, Gun Violence and Children : AJN The American Journal of Nursing (lww.com)

[2] US Department of Health and Human Services, National Center for Health Statistics, Center for Disease Control and Prevention, November 13, 2020, FastStats - Injuries (cdc.gov)

[3] Gun Violence Archive, 2019, Past Summary Ledgers | Gun Violence Archive.

[4] U.S. Const. amend. II

[5] Id.

[6] Id.

[7] 18 U.S.C. § 102

[8] Garen J. Wintemute, MD, MPH, Veronica A. Pear, MPH, Julia P. Schleimer, MPH, Rocco Pallin, MPH, Sydney Sohl, BS, Nicole Kravitz-Wirtz, PhD, Elizabeth A. Tomsich, PhD, Annals of Internal Medicine, Extreme Risk Protection Orders intended to prevent Mass Shootings, November 05, 2019, Extreme Risk Protection Orders Intended to Prevent Mass Shootings: A Case Series: Annals of Internal Medicine: Vol 171, No 9 (acpjournals.org)

[9] Timothy Williams, What Are ‘Red Flag’ Gun Laws, and How Do They Work?, Aug. 6, 2019, What Are ‘Red Flag’ Gun Laws, and How Do They Work? - The New York Times (nytimes.com)

[10] Id.

[11] Extreme Risk Protection Order Act of 2019, H.R.1236, 116th Congress (2019-2020)

[12] Id. § (2)

[13] Brady, Resources - EXTREME RISK PROTECTION ORDER ACT OF 2019 (H.R. 1236 AND S. 506), Extreme Risk Protection Order Act of 2019 | Brady (bradyunited.org) (last visited on December 13, 2020)

[14] Mike Kohram and Alen Stephens, The Trace, States are embracing red flag laws for gun owners. Here’s how they work, February 18, 2020, States Are Embracing Red Flag Laws for Gun Owners. Here's How They Work (thetrace.org).

[15] Id.

[16] Id.

[17] Id.

[18] Cal. Pen. Code § 18122 (2020)

[19] CBS News, Parkland School Shooting, 2020, Parkland, Florida school shooting: Marjory Stoneman Douglas High School scene of mass shooting - CBS News

[20] Cal. Pen. Code § 18122 (2020)

[21] MD Pub Safety Code § 5-604 (2020)

[22] NY CPLR 6342 (2018)

[23] U.S. Const. amend. II

[24] U.S. Const. amend. II

[25] District of Columbia et al., Petitioners, v. Dick Anthony Heller, 554 U.S. 570 (2008)

[26] Id.

[27] Id.

[28] U.S. Const. amend. II

[29] Id.

[30] Id.

[31] Id.

[32] Otis McDonald al., Petitioners, v. City of Chicago, Illinois, et al., 130 S.Ct. 3020 (2010)

[33] U.S. Const. amend. II

[34] District of Columbia et al., Petitioners, v. Dick Anthony Heller, 554 U.S. 570 (2008)

[35] Otis McDonald al., Petitioners, v. City of Chicago, Illinois, et al., 130 S.Ct. 3020 (2010)

[36] Jefferson Eugene Davis v. Gilchrist County Sheriff’s Office, 280 So.3d 524, (District Court of Appeal of Florida, First District, 2019)

[37] Fla. Stat. Ann. § 790.401 (2020)

[38] Id.

[39] Id.

[40] Donald Hope v. State of Connecticut, 163 Conn.App. 36 (2016)

[41] C.G.S.A. § 29-38c

[42] U.S. Const. amend. II

[43] Id.

[44] District of Columbia et al., Petitioners, v. Dick Anthony Heller, 554 U.S. 570 (2008)

[45] City of San Diego et al. and Respondents, v. Esther Boggess, 216 Cal.App.4th 1494 (2013)

[46] U.S. Const. amend. II

[47] California Code, Welfare, and Institutions Code - WIC § 8102 (2020)

[48] U.S. Const. amend. II

[49] City of San Diego et al. and Respondents, v. Esther Boggess, 216 Cal.App.4th 1494 (2013)

[50] Robert E. Redington v. State of Indiana, 922 N.E.2d 823, (Court of Appeals of Indiana, 2013)

[51] Ind. Code § 35-47-14-1 (2020)

[52] Id.

[53] Id.

[54] Id.

[55] Id. – This decision was reversed in the year 2019 in the case of Robert E. Redington v. State of Indiana, 121 N.E.3d 1053 (2019) but only on the ground of ‘Standard of Evidence’, the ‘constitutionality’ of the ‘Red Flag’ law was not called into question.

[56] APM Research Lab Staff, Americans’ View on Key Gun Policies, APM Gun Survey, Part One: 'Red flag' laws — APM Research Lab, Aug. 20, 2019.00

[57] Jonathan Levinson, 2 Years In, Oregon's Red Flag Law Paints A Picture Of Crisis, Oregon Public Broadcasting, 2 Years In, Oregon's Red Flag Law Paints A Picture Of Crisis - OPB, Dec. 17, 2019

[58] U.S. Const. amend. II