Red Flag Laws Seek To Balance Safety With Due Process

Feb 11, 2019

When an attempt to carry out a gun removal in Maryland’s Anne Arundel County left a man dead last November, opponents of the state’s red flag law were incensed.

“Whatever you may think of red flag laws, they should not be death sentences. And they were in the case of Gary Willis,” said Mark Pennak, an attorney and president of the gun rights organization Maryland Shall Issue.

Maryland is one of more than a dozen states that have passed laws supporting extreme risk protection orders (ERPOs), also called red flag laws, which allow the courts to order the temporary confiscation of firearms from the homes of people suspected to be planning harm to themselves or others.

The number of states with these laws more than doubled in the months following the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, last year. Thirteen states and the District of Columbia now have some version of a red flag law.

Proponents of tighter gun control legislation have championed these laws as a major step to prohibiting possibly dangerous people from committing acts of gun violence, but gun rights activists say these laws are an example of government overreach.

“The principle due process concern is that this law authorizes, indeed requires, an ex parte proceeding, which means that the order is issued without the participation of the person against whom this is directed,” Pennak said.

“It’s a complete shock to… the person who possesses the firearm. Officers show up on his doorstep demanding his guns.”

Critics also suggest there is a lack of accountability for people who request these orders for someone else.

After a request is filed by an approved petitioner — a group that includes family members, medical professionals and law enforcement officers, varying state by state — a judge determines if there is a credible threat. If so, officers are dispatched to remove firearms from the residence.

‘It Truly Is Saving Lives.’

Courts issued more than 1,700 gun seizure orders in 2018, according to an analysis by the Associated Press.

Since going into effect in October, Maryland has fielded more than 360 requests for ERPOs, according to data provided by the Montgomery County sheriff’s office. Slightly fewer than half, 173, have been granted by a judge.

Anne Arundel County, where Willis was shot and killed, has seen the highest number of requests in the state. Next highest in the state of Maryland is Baltimore County, followed by Harford and Prince George’s counties.

Sheriff Darren Popkin of Montgomery County, the largest county in the state and site of some 67 ERPO requests, stressed the importance of these orders in removing guns from potentially dangerous situations.

“Law enforcement has always ran calls involving people that are in very, very difficult situations, in crisis. But we’ve never had statutory authority to remove firearms at the time that the initial call went out,” Popkin said.

“Clearly from the feedback and the facts and circumstances I’m being told in many jurisdictions, including Montgomery County, it truly is saving lives.”

Data from the Centers for Disease Control and Prevention shows that 39,773 people in the United States died in firearm caused deaths in 2017. Nearly 60 percent of them died by suicide.

‘My Dad May Have Been Saved…’

Experts say extreme risk protection order laws are most often used for suicide prevention.

Similar laws in Indiana and Connecticut may have prevented hundreds of firearm suicides, according to research published in the journal Psychiatric Services.

No such laws existed in 1965 when Maryland resident Dorothy Paugh, then nine years old, lost her father to suicide by gun. Nor had Maryland enacted its own red flag law in 2012 when her 25-year-old son, Pete, shot and killed himself.

“As complicated as the mental health aspect is, what isn’t complicated is keeping guns away from those who are in a crisis, from those who are struggling,” said Paugh, who in the years since her son’s suicide has advocated for the Maryland red flag law.

“I certainly do think that had my mother had the kind of resource that the red flag bill gives family members now, my dad may have been saved… And that in turn may have saved my son.”

Guns & America is a public media reporting project on the role of guns in American life.

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