DOJ Publishes Guidance for ‘Red Flag’ Confiscation Legislation

This week, the Department of Justice (DOJ) put out “model legislation” to help states craft laws that allow the government to confiscate firearms from individuals who are accused of being a danger to themselves or others.  

Known as “extreme risk protection orders” (ERPOs) or “red flag” laws, these controversial measures already exist in some 19 states and the District of Columbia.  

Critics of red flag laws argue that they violate basic Due Process, in that they allow the government to seize property and suspend the 2A rights of individuals who have not been convicted of any crime.   

Proponents contend that they “save lives” and give law enforcement and communities an expedited path to take guns away from potentially dangerous individuals.   

In its commentary on the subject, the DOJ believes its model legislation provides a framework that addresses the concerns and satisfies the objectives of the respective camps.  

The model “includes language that would authorize the judicial issuance of no-firearms orders for dangerous individuals and the concurrent issuance of search warrants to search for and seize their firearms.  It further provides that, in qualifying emergency circumstances, the subject may be served with the order concurrently with or after the search is carried out,” says the DOJ.  “The process would be overseen by a court to ensure the protection of the individual’s rights.”

In summary, a citizen is disarmed and loses his (or her) right to keep and bear arms until he (or she) can convince a judge that he (or she) is not a threat to society.  One is guilty until proven innocent or, more accurately, disarmed until proven not dangerous.

GunsAmerica reached out to the National Shooting Sports Foundation, the firearms industry trade association, to get its thoughts on the DOJ’s guidance.  

SEE ALSO: What Happens If a Red Flag Law is Used Against You? Guns Are Seized, Then What?

Mark Oliva, the organization’s director of public affairs, objected to the notion that DOJ was respecting the rights of the accused.  

“All the concerns NSSF needs to see to ensure Due Process rights are protected are missing. The Department of Justice defers to the states to figure it out. It is troubling that department that is supposed to protect the civil liberties of American citizens is instead focusing its efforts to chipping them away,” he told GunsAmerica via email. 

“In this case, it is not just Second Amendment rights but also Fourteenth Amendment rights. This guidance from the Department of Justice to craft extreme risk protection order (ERPO) laws should include explicit protections for Due Process rights,” he continued.

Oliva indicated that one needs to have their day in court before the government swoops in and starts grabbing guns. 

“We are talking about depriving law-abiding citizens of their fundamental civil liberties and if that is to occur, those affected parties have a right to confront witnesses and evidence before a judge renders a decision to enforce an order,” he said.

“In exigent circumstances when an individual poses an immediate danger to themselves or others, those individuals still have rights and must be afforded the opportunity to come before a judge within a reasonable timeframe. When an individual is arrested, they are before a judge within 24-72 hours. There’s no reason someone should be deprived of their civil liberties without the same standard of justice,” he added. 

Additional concerns Oliva pointed to with respect to ERPOs include: 

• they are issued upon sworn testimony and showing by clear and convincing evidence that the person that is subject of the petition (“respondent”) is an immediate and imminent threat to themselves or others.
• provide for the appointment of counsel paid for by the government if the respondent is unable to afford counsel.
• provide that making a false statement in support of a petition for an ERPO order is a criminal offense.
• respondent should have a statutory civil cause of action against a person making a false statement.
• duration of the order and providing for periodic judicial review of the order to determine whether the respondent remains an immediate and imminent risk to themselves of others.

Despite all the noted issues with red flag laws, the DOJ at the behest of the Harris-Biden administration is pushing forward.  As part of its proposed budget for 2022, the agency is asking Congress for $40 million to pursue, “programs to incentivize states to implement red flag and gun licensing laws.”  

While there is no hard evidence to suggest that red flag laws “save lives” to the degree proponents tout, there is plenty of evidence that they are just the start of a larger confiscation scheme.  Case in point, states have been expanding the scope on who is allowed to petition a court for a red flag order. 

Initially, it was law enforcement and immediate family members only who had that power.  Now, some states have added to that list registered nurses, psychologists, social workers, teachers, and a wide variety of extended family members and acquaintances.   

It also bears mentioning that red flag laws do not provide help or assistance to those deemed dangerous.  The government assumes that the immediate seizure of firearms is all that is necessary to render a potentially dangerous person harmless.  

Sharp objects, blunt instruments and automobiles kill thousands of people each year but under a red flag law a suspect’s access to these “weapons” remains unrestricted.  Critics of red flag laws argue that this fact proves that these laws are more about grabbing guns than increasing public safety.  

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