The Red Flag to your Rights awaiting the next crisis

Red Flag laws assault freedom
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As the 2019 legislative session for Federal and State Government approaches, there have been many concerned citizens with a growing list of questions. In many parts of the nation, the consequences of the 2019 elections have resulted in multiple proposed legislation that impedes, restricts, or alters fundamental inherent Rights. At the same time, there are existing Bills that have begun the path to becoming law that some have forgotten that deserve attention. We will address 2 such Bills.

How did we get here

Previously we discussed the almost infectious growth of Red Flag legislation across the nation. In our article in April 2018 we addressed how Red Flag legislation is one of many that that are proposed to “protect” the public by restricting inherent Rights. We stated in part at the time,John Laubscher of Madison County prevents mass shooting

“Of course these rarely discussed and publicly unknown laws and Bills are defended with the mantra that this is “for the public good”, a reasoning used to excuse some of the worst atrocities known to mankind… Case in point is the example of John Laubscher, of Madison County, who potentially prevented an instance of mass shooting. The NY SAFE Act did not protect the community – as the accused had the ability to acquire legal firearms. The Obama Executive Orders, HR 5087, Deerfield ordinances, and every aspect of gun control offered by those seeking to strip Rights from Americans failed to even draw attention to this suspect.”

But by the time that article appeared, even as the concept of Red Flag legislation entered the general public awareness in the most minimal of ways, politicians were already on the move. In March, as an emotional reaction to the Parkland Shooting, in response to the vague call to “do something”, 2 Senators had already introduced national Red Flag legislation.

Government prepared to “protect” you

Reagan vs Government help
Bills S2521 (introduced by Senator Richard Blumenthal) and S2607 (introduced by Senator Marco Rubio) are Federal versions of Red Flag legislation. In these Bills they are called Extreme Risk Protection Orders, one of several names this is presented to the public under. Additional names include ERPO, but no matter the title, the text and function of the Bills are the same.

Both Bill S2521 and S2607 are not expected to pass into law, at this moment. They have 5 or less co-sponsors, and have yet to move out of the Senate Judiciary Committee. But these kinds of legislation need only a similar emotional plea as in the Parkland Shooting from news media and opponents of the Second Amendment as a catalyst to suddenly race to law. Given the change in control of the House of Representatives, such an impetus can move even faster than in 2018.

Senate Bill S2521


Taken in order of submission, S2521 is the Federal Extreme Risk Protection Order Act of 2018. Like every ERPO or Red Flag law, it contains several critical elements as we have identified in August 2018. In addition, these Senate Bills are defined by the same violations of Due Process that all Extreme Risk Protection Orders contain. There are several items that this Bill proposes that are of note:

1) This Bill is intended exclusively for Ex Parte function. Meaning that the person to be affected is never notified nor allowed to defend themselves until AFTER they have been punished by the Federal Government.
2) Risk of Imminent harm is the motivating factor. What does “imminent” mean? What does “risk” mean? This is different than much of the language used in other legislation, implying a less serious need to execute action.
3) The function of the Bill may be enacted by a former roommate, current or ex-significant partners, in addition to any level of law enforcement and family members
4) The cause of initiation of the Bill can be information from a 3rd-party, believed to be credible.
5) Directly acknowledges that any and all firearms present will be taken at time of action, regardless of ownership of firearms.
6) No timeframe required for return of property – whether owned by a different person or if the ERPO is proven invalid.

One additional item of concern to the function of this S2521 is the fact that it is expected to last 14 days, or for 180 days, and reviewed for renewal every 180 days thereafter. This is important in that, as reported for 2017, there were 59,788 Criminal cases filed with US District Courts but 79,874 cases pending. Based on an average of known reported executed Red Flag legislations, roughly a range of 50-100 actions would occur per State per Month.

This adds on an annual level some 15,000 initial cases – assuming just 25 incidents per month or half the implied average. According to S2521, and given the full 180 day renewal, they would require at least another 7,500 cases (if we assume only half the cases are renewed). Simple math implies that due to the backlog, anyone suffering from the accusation that is the core of a Red Flag action, will suffer an extended punishment beyond what the law dictates.

Senate Bill S2604

Sen. Marco Rubio
Sen. Marco Rubio of Florida

Looking at Bill S2607 there are some changes from S2521 and other State legislation. Of note is:

1) The cause of initial action is “significant danger”. What does this mean? The openness of this term, like in all Red Flag legislation should trouble people. Though it does imply a more serious event than S2521.
2) There is the addition of a dating partner as being able to start the ERPO
3) The entire issuance of the ERPO proceeding can be done by telephone.
4) The length of time is 1 year, and a challenge to prove innocence of the non-crime is within 30 days of initial actions. Extensions are for 1 year periods, ad infinitum.
5) Places responsibility of return of firearms, to other owner a seized firearm or if ERPO is dismissed, on State with no timeframe.

There is one additional stipulation that is perhaps most troubling. S2607, unlike the other Red Flag Bills we have covered, mandates that the Federal Government pay States to enforce this legislation. It states

“The Assistant Attorney General shall make grants to an eligible State or Indian tribe to assist the State or Indian tribe in carrying out the provisions of a qualifying State or tribal law.”

In effect, States are given an incentive to have more Red Flag legislations. Imagine the competition of States with deep debts, like New York or California, or States with minimal economies like Mississippi, would have for these new funds. Given the subjective nature of the ERPO, a monetary bonus, seems to open the door to even more opportunity for corruption and abuse.

A chess game for your Rights

When we look at what already exists, and what it proposes, the need for vigilance is magnified. As much as we see new legislation appearing, with the same ultimate goal of restriction of Rights, we cannot forget the legislation already in place and awaiting a crisis.

Politics is a game of Chess, with pieces being placed well in advance. Given the right crisis, with enough eyeballs provided by major news media, prepped with the proper mindset by social media, and that game shifts to a speed-chess match. A game moving so fast that often even the players aren’t sure of the moves and consequences being taken. Instead hoping that the preparations will take care of the details.

Still, no matter the game or participants, no matter the preparations or moves, no matter the speed of the match, there is one thing that overrules it all. In America, citizens retain all the power in the game. Citizens hold the ultimate checkmate, if they choose to use it.

Happy New Year

Welcome 2019January 1, 2019
20 days to go.

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