In the wake of the shootings in El Paso and Dayton, the President has called for Gun Violence Restraining Orders or Extreme Risk Protection Orders (ERPO), colloquially termed Red Flag Laws. What exactly are these laws and what do they do?
The way the law is usually carried out is that someone requests a temporary gun restraining order against a person that lasts, generally, for a short period of time. A hearing is held at which the person can respond to the evidence against him or her, and then the judge issues a final order. If the judge determines the person is a risk to himself or others, he can order the person to turn in his gun over to state authorities for a certain period of time.
In 2018, there were bills introduced in the Texas Legislature proposing such a law. Both House Bill 131 and Senate Bill 157 were similar in that they both would allow a court to issue a TEMPORARY EX PARTE ORDER, allowing law enforcement to enter an individual's domicile and confiscate any firearms found without providing that person with due process. In other words, simply on the basis of an allegation.
The NRA has been widely criticized for opposing Red Flag Laws. However, the NRA does NOT oppose such laws per se. It has simply stated some specific provisions that any such law should have to garner its support:
1) Anyone subject to an ERPO should have the opportunity to challenge the order with full due-process protections in place.
2) An order that confiscates firearms should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.
3) If a person's mental health is questioned, the judge should concurrently make a determination of whether the person meets the state standard for involuntary commitment.
4) Whether or not the person meets the state standard for involuntary commitment, the person subject to the ERPO should receive mental health treatment.
5) The process should allow firearms to be retained by law-abiding third parties, local law enforcement or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms.
6) There should be a mechanism in place for the return of firearms upon the termination of an ERPO.
7) The process should include criminal penalties for those who bring false or frivolous charges.
In the case of the proposed Texas laws, a person's guns could be confiscated based simply on an allegation made by a family member. The "accused" would then be afforded a hearing within 14 days in which to disprove the allegations. This turns our criminal justice system upside down, assuming guilt. The accused is put in the position of having to prove innocence.
Take the hypothetical case of a messy divorce. An angry spouse could walk into a District Attorney's office and file a complaint in ex parte fashion. Simply on the basis of this allegation, a search warrant could be issued and the firearms of the other spouse taken.
The proposed penalty for filing a false complaint is stated as a Class B Misdemeanor, punishable by up to 6 months in jail and a $2,000 fine. However, under Texas law, unlawful possession of a firearm is most often prosecuted as a Class A Misdemeanor, calling for up to 1 year in jail and a $4,000 fine. Depending on the circumstances, it could also be prosecuted as a 3rd Degree Felony, punishable by 10 years in jail and a $10,000 fine.
Neither of the Texas bills passed and the NRA did, in fact, oppose both. However, had lawmakers simply provided for due process protections, doing away with ex parte orders and providing the accused with normal due process protections, along with stiffer penalties for filing a false complaint, the NRA would most likely have withdrawn such opposition.
The way the law is usually carried out is that someone requests a temporary gun restraining order against a person that lasts, generally, for a short period of time. A hearing is held at which the person can respond to the evidence against him or her, and then the judge issues a final order. If the judge determines the person is a risk to himself or others, he can order the person to turn in his gun over to state authorities for a certain period of time.
In 2018, there were bills introduced in the Texas Legislature proposing such a law. Both House Bill 131 and Senate Bill 157 were similar in that they both would allow a court to issue a TEMPORARY EX PARTE ORDER, allowing law enforcement to enter an individual's domicile and confiscate any firearms found without providing that person with due process. In other words, simply on the basis of an allegation.
The NRA has been widely criticized for opposing Red Flag Laws. However, the NRA does NOT oppose such laws per se. It has simply stated some specific provisions that any such law should have to garner its support:
1) Anyone subject to an ERPO should have the opportunity to challenge the order with full due-process protections in place.
2) An order that confiscates firearms should only be granted when a judge makes the determination, by clear and convincing evidence, that the person poses a significant risk of danger to themselves or others.
3) If a person's mental health is questioned, the judge should concurrently make a determination of whether the person meets the state standard for involuntary commitment.
4) Whether or not the person meets the state standard for involuntary commitment, the person subject to the ERPO should receive mental health treatment.
5) The process should allow firearms to be retained by law-abiding third parties, local law enforcement or a federally licensed firearms dealer when an individual is ordered to relinquish such firearms.
6) There should be a mechanism in place for the return of firearms upon the termination of an ERPO.
7) The process should include criminal penalties for those who bring false or frivolous charges.
In the case of the proposed Texas laws, a person's guns could be confiscated based simply on an allegation made by a family member. The "accused" would then be afforded a hearing within 14 days in which to disprove the allegations. This turns our criminal justice system upside down, assuming guilt. The accused is put in the position of having to prove innocence.
Take the hypothetical case of a messy divorce. An angry spouse could walk into a District Attorney's office and file a complaint in ex parte fashion. Simply on the basis of this allegation, a search warrant could be issued and the firearms of the other spouse taken.
The proposed penalty for filing a false complaint is stated as a Class B Misdemeanor, punishable by up to 6 months in jail and a $2,000 fine. However, under Texas law, unlawful possession of a firearm is most often prosecuted as a Class A Misdemeanor, calling for up to 1 year in jail and a $4,000 fine. Depending on the circumstances, it could also be prosecuted as a 3rd Degree Felony, punishable by 10 years in jail and a $10,000 fine.
Neither of the Texas bills passed and the NRA did, in fact, oppose both. However, had lawmakers simply provided for due process protections, doing away with ex parte orders and providing the accused with normal due process protections, along with stiffer penalties for filing a false complaint, the NRA would most likely have withdrawn such opposition.
