There are plenty of reasons why American reject the current wave of gun control sweeping the nation. There are far fewer reasons why others seek to restrict or outright remove the Second Amendment. The emotion pushing these restrictions have led to 123 new laws on top of the hundreds already existing in each State besides the Federal Government. But perhaps the most controversial is legislation that has reached more than a quarter of the nation, while being considered by Congress – Red Flag laws.
Red Flag laws have been portrayed as the answer to gun violence, a subset of that in mass shootings, and suicide by firearms. Essentially, it is described as almost the fix for every issue involving firearms in America. But this is a very flawed set of law.
While there are variations from State to State, and in the proposal in Congress, the issues for all of them are generally the same. These are 8 reasons Red Flag laws don’t and won’t work.
Reason – Cost in dollars and manpower
While there is no data directly for this, as no law enforcement appears to have ever isolated the cost to enforce these laws, we can make some guesses. Based on the $5.6 million allocated by California (up 50% from the prior year) there is a real dollar cost. There is also the cost of manpower. Red Flag laws are normally enforced by multiple officers if not SWAT teams. This is often due to the potential of armed resistance (we will address this separately).
Officers allocated to a Red Flag action are not patrolling streets or investigating crime or other duties. Thus they are either reducing the effectiveness in the community or they are using overtime to enhance the number of officers at work at the time. Given the times that have been reported for Red Flag actions – often reported as happening between 5am – 7am – when the accused is most likely home, it could be possible that the number of officers diverted to this is a minimal disruption. Maybe.
An example is in Maryland where 302 Red Flag actions took place in 3 months. Only half this number wound up requiring action – therefore 151 were false or otherwise discredited. Of the 151 that went forward, 47 were in one County alone (with a population of over 500,000 in more than 8 cities).
Again, speculation on this to an extent. There is no firm data to collect on this. But the cost in dollars and manpower exist. They have an impact on the communities that would not otherwise exist.
Reason – Criminals and the deranged are unphased
There is no data to show that any form of gun control has effectively and/or directly prevented gun violence. Even the much hyped 1994 Gun Ban has not shown evidence of stopping or reducing mass shootings – as per Prof. James Allen Fox. Even the most restrictive gun restriction laws in the nation, like in Chicago and Detroit, or in California have shown no impact over long periods of time.
Looking at it from a different view, in many mass shooting events bombs have been found. From Columbine to San Bernardino to Parkland and Islamberg, bombs have been made and/or used. Whether they work or the event was stopped prior, the fact is that bomb making is expressly and highly illegal. Yet such restriction had no impact on the deranged and criminal intents involved.
Further, States with Red Flag laws are not immune nor protected against mass shootings or other acts of violence. States like Connecticut still had the Sandy Hook shooting. California had the Thousand Oaks shooting.
States like NY still have gun violence on par with historical averages even after gun restriction laws like the SAFE Act, and a very anti-Second Amendment environment. In fact, prior to passage of Red Flag legislation and without relevance of the SAFE Act, the aforementioned plot to attack Islamberg NY was stopped by existing law and concerned citizens. Not one of the gun restriction laws passed in 2019, which includes Red Flag law, would have enhanced or enabled the prevention of the Islamberg plot.
In addition, per studies done on 1500 Red Flag actions in Connecticut and 404 in Indiana,
Further, 51% of the initiating reports causing the Red Flag action came from individuals who did not know the defendant or declined to identify themselves. 16% of the Red Flag actions in Connecticut did not indicate if there was a danger to the individual or others, the core written purpose of the law.
Given such realities, and the fact that the overwhelming incidence of mass shootings and other gun violence crimes occur in “gun-free” zones, there is no reason to believe Red Flag laws have had, or will have, an impact to protect anyone.
Won’t stop suicides
Many proponents of ERPO’s suggest that by removing access to firearms suicides would be prevented. They imagine that since firearms are the largest tool used in suicides, Red Flags should reduce this. As per a study (there have only been 2 that I am aware of in the 20 years of Red Flag laws existence) by Duke, the alternative justification for Red Flag laws is moot.
The theory of suicide prevention is not proven by fact. Looking at Red Flag laws in terms of suicide prevention, the numbers don’t hold up. The conclusion of the study done shows that it takes the removal of Rights of 20 individuals to potentially stop 1 suicide. But the data doesn’t stop there.
In those cases where a potential suicide by firearm is stopped, 40% of those cases still commit a suicide by other means. Thus as an example out of 100 people affected, 5 suicides would potentially be stopped. Of those 5, almost 2 of them will still take their own life by other means.
But according to the CDC, given a rate of 14 suicides by all means out of 100,000 people, the real chances are 1 in 10,000 people will try suicide by firearm. To be even more accurate, for every 20 people denied their Rights, roughly 0.0014 people might be prevented from action. For at least 2 years, when the numbers then go lower.
Looking at the wrong target group
The average age of someone committing a mass shooting incident tends to be in the early 20’s. They tend to be single with low to middle class income and background. They also tend to be White and male. There are of course several clear exceptions to this. Based on the studies done expressly on Red Flag legislation, there is clarity on a couple of factors.
The studies show that the average age of a person having Red Flag action taken against them is 47. Red Flags trend to middle class incomes. The accused also have a higher mix of married individuals with families.
If the main intent of a Red Flag law is to target potential mass shootings, especially in schools, then they are reacting to the wrong target group. Add to this the fact that
88% of all the [ERPO in Connecticut] cases did not result in an arrest of the target of the Red Flag action. In fact that 88% had no arrest within 1 yr prior through 1 yr after the Red Flag action. 27% of the Red Flag actions in Connecticut resulted in no further action by law enforcement.
Children taken by State
Though FOIA requests were made to Connecticut and Indiana, there was no data to be provided to the public. No State seems to collect the consequences of Red Flag actions. Yet every State has some form of Child Protective Services, and those services are required to act for minors.
The problem is that if a person is so dangerous to themselves or their community that a Court must deny their inalienable Rights, that person is too dangerous to have children present. In such a defined danger zone, States require action to take the child from the home.
With every lawyer this has been discussed with, every politician of all Parties and viewpoint on Red Flags, there is concurrence on this point. States don’t ask for this record, or cost, to be detailed. The public to-date have not asked for such data, beyond our FOIA, but it happens.
Thus the accused needs to not only fight to regain their property, they have to fight to regain their family. This at additional cost in dollars, reputation, and time. Though no crime has occurred or been alleged.
Can lead to death of accused
There is also the chance that Red Flag actions will cause the death of the accused. There is the known case of death in MarylanD in 2018. A 61 year old man, reacting to the Red Flag action he lacked knowledge about, refused police at 5am and a shootout occurred. Given the 1700 actions in 2018, the incidence was low, but it does highlight that issues can happen.
In 2017 a teen shot a police claiming he thought they were burglars in Detroit. In 2019 a similar claim lead to the death of a police officer. Given the lack of knowledge, and the time Red Flag actions take place, if the 2018 rate were to hold steady (given the current tone in the nation) then some 10 in 100,000 could die due to Red Flag laws. That would be one of the leading causes of deaths in the US.
Given that is unlikely, but what amount of deaths is acceptable due to Red Flag laws?
Teachers (or others) as law enforcement and lawyers
There has been a lot said about the role of teachers in defending students. There is a big national divide on the idea of arming teachers, with little coverage when teachers or schools do become armed (Florida). But as big as that divide may be, few think teachers should be law enforcement in a classroom. Even fewer would likely enjoy teachers as prosecutors and spies.
Red Flag legislation (depending on the State) requires that teachers effectively become investigators (or spies if you prefer). By mandate of law, they must identify and report all potential dangers to the household of a child and the community at large. How they are to determine this is unclear. But if they don’t, that teacher and school district are liable, since the legal authorization is created by the individual State (or potentially the Federal Government if Bills in Congress pass).
Thus, as in New York’s Red Flag legislation – strongly pushed by Gov. Andrew Cuomo – a temporary part-time badminton coach is required to evaluate every student, daily, to identify early signs of a potential threat as defined by law. Once identified they must, without evidence, initiate a Red Flag action. If they do not, for whatever reason, they and the school district, become potentially criminally and financially liable for abetting in a criminal act – if it were to ever happen.
Due Process/Unusual Punishment
This is a major issue. The key real function of a ERPO is that it happens Ex Parte. That means that the accused is never aware of the legal action being taken against them, until after it has happened. There is no way to defend yourself prior to punishment being enacted .
So, without a crime ever being committed or even alleged, a judge will lay down a verdict. This has repercussions to the reputation, finances, and life of the accused. They will be marked publicly in newspapers and social media. They will have their jobs, and thus finances, disrupted. They may be barred from social and community events, either by law or as a direct consequence of public perception.
After the fact, the accused can try to reverse the decision of the court. Which costs money the accused may not have. Plus time, which is also a factor of money and occupation.
Even if successful or not, at the end of the action and/or legal battle, no crime has been committed. Which therefore violates the 5th, 8th, and 15th Amendments.
So in total the reasons for a Red Flag denial of Second Amendment Rights makes little sense. Red Flags have not, and cannot, live up to the alluring yet false promise of protection. The illusion of safety is possibly even worse than real attempts to protect the masses, because of the cost of freedom involved.
Should there be restrictions on the 2nd Amendment? Maybe. Should it be revoked? Not if America seek to remain free. Will Red Flag laws be a benefit? Likely not even on a small scale. At least as we believe based on these 8 reasons among others.