In states with red flag laws, critics are raising due process concerns. Are they right? | Thursday Morning Coffee

September 5, 2019 7:14 am

State Rep. Movita Johnson-Harrell speaks at a rally during Gun Violence Awareness Day on Wednesday, June 5, 2019 (Capital-Star photo).

Good Thursday Morning, Fellow Seekers.

With yet another mass shooting refocusing public attention on America’s protracted debate over gun control, there appears to be bipartisan consensus around one potential remedy: So-called ‘Red Flag’ laws that would allow a court to seize someone’s weapons if it’s believed they pose an immediate threat to themselves or to public safety.

In all, 17 states, along with Washington D.C. have such statutes. And the data appears to indicate that they’re working. Nonetheless, civil libertarians have raised due process concerns. That includes Pennsylvania, where Red Flag laws are now before the state House and Senate.

Our friends at neatly summed up the current, nationwide debate over due process in a piece posted earlier this week, finding that “most red flag laws are vague on what constitutes a ‘significant danger’ [to public safety], which gives courts broad discretion to seize firearms, Parris said. And in some states, respondents are not guaranteed representation in court, since these are civil and not criminal matters.”


In the year since Florida enacted its Red Flag law in the wake of the mass shooting at Marjorie Stoneman Douglas High School in Parkland, Fla., attorney Kendra Parris told Stateline that she’s defended around 20 clients who were facing risk protection orders.

Parris told Stateline the statute is “almost like a shiny new toy for law enforcement,” who have been “filing them left and right.” Since Parkland, six states, and Washington D.C. have enacted such statutes, Stateline reported.

Dave Kopel, the research director at the Denver-based Independence Institute, a libertarian think tank, chimed in, telling Statelinte that legislatures “have taken the same approach President Donald Trump spoke in favor of in March 2018: ‘Take the guns first, go through due process second.'”

(Capital-Star file photo)

Pennsylvania state Rep. Todd Stephens, the Montgomery County Republican who’s sponsoring a Red Flag bill in the majority-GOP state House, told the Capital-Star earlier this year that he’s gone through his bill line-by-line to dispel critics’ fear about any infringement on their constitutionally protected due process rights.

Stephens bill provides for both the short-term seizure of someone’s weapons as well as a longer, months-long ban that carries with it a higher standard of evidence.

“Gun owners across Pennsylvania don’t realize that they can be disarmed for life without a judge ever saying a word,” Stephens told the Capital-Star, referring to state and federal law banning someone from owning a gun if they’ve been subject to an involuntary commitment. “So when you compare [extreme risk protection orders] with what the status quo is, it’s a win for gun owners.”

The Senate Judiciary Committee is set to hold two days’ worth of hearings on gun-safety measures on Sept. 24 and Sept 25. A Senate Red Flag proposal, sponsored by Sen. Tom Killion, R-Delaware, is likely to be on the docket for those hearings.

In an Aug. 23 op-Ed for the Capital-StarKillion wrote that his legislation would protect due process rights “of all involved.”

“This law would create a transparent process in which judges can only order the relinquishment of firearms if there is compelling evidence that individuals pose a serious danger,” he wrote. “Long-term orders can only be issued after a full hearing is held, at which all parties can appear and present evidence.”

Democratic Gov. Tom Wolf has urged lawmakers to pass the Red Flag bills when they return to session later this month.

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Former Republican U.S. Rep. Lou Barletta, of Pennsylvania. (Flickr Commons photo)

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John L. Micek

A three-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's former Editor-in-Chief.