DOJ offers states model for crafting ‘red flag’ legislation

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In an effort to take control of the country’s gun violence problem, the U.S. Department of Justice has proposed a model for how states can craft “red flag” legislation to temporarily keep firearms out of the hands of people believed to be a danger to themselves or others.

The department on June 7 published model legislation to aid states in building their own red flag or “extreme risk protection order,” or ERPO, laws, which have come under much scrutiny in recent months following several of mass shootings across the U.S.

In April, the Hoosier State experienced a mass shooting at an Indianapolis FedEx Ground facility that killed eight employees and wounded five others. The shooting raised questions about whether more could have been done under Indiana’s red flag law to prevent the gunman from obtaining additional weapons after a firearm was removed from his possession about a year before.

Currently, 19 states and Washington, D.C., have enacted some type of red flag law, according to Everytown, including California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington.

Considered to be a pioneer in the red flag law movement, Indiana passed its own version of the legislation in 2005 after the death of a police officer killed in the line of duty by a man who suffered from severe mental illness.

Indiana’s red flag statute allows police or courts to seize guns from people who show warning signs of mental instability and could be deemed “dangerous” under Indiana Code § 35-47-14. The law was amended in 2019 to address language that some experts called overly broad and potentially unconstitutional.

But the Hoosier State’s statute came under fire earlier this year after 19-year-old Brandon Scott Hole killed eight people at the FedEx facility. Conversations began to rise about potential loopholes in the law and what should be done to close them.

Following the shooting, Marion County Prosecutor Ryan Mears said after the state seizes a firearm, it has 14 days to file a petition requesting the person be designated as having a violent propensity or mental instability. But since the gun from Hole’s home had been secured and the family didn’t want it back, the office did not file a follow-up petition under Indiana’s red flag law because it had already achieved its objective of removing the firearm from Hole’s home — a decision Mears was widely criticized for. 

The DOJ says its proposed model provides a framework for states to consider that draws on a significant number of similar laws adopted across the country.

“Orders of this nature may be sought in some jurisdictions, for example, by family members or others concerned that an individual who is suicidal or otherwise in crisis will use a firearm to seriously injure or kill himself or herself or another person,” the DOJ wrote in its June 7 commentary to the model legislation.

Specifically, the model is designed to identify and combine the main features of existing red flag statutes, including “warrant” and “order” statutes. Warrant statutes authorize courts to issue orders permitting law enforcement to search for and seize the firearms of dangerous individuals, while order statutes authorize courts to issue temporary orders prohibiting dangerous individuals from possessing or acquiring firearms.

“It includes language that would authorize the judicial issuance of no-firearms orders for dangerous individuals and the concurrent issuance of search warrants to search for and seize their firearms.  It further provides that, in qualifying emergency circumstances, the subject may be served with the order concurrently with or after the search is carried out,” the DOJ said.

Additionally, the process would be overseen by a court to ensure the protection of the individual’s rights. Legislation authorizing the “red flag” law would supplement, not replace, existing laws authorizing the issuance of protection orders to prevent intimate partner violence, the department said. Neither would the legislation displace existing state laws on involuntary commitments.

“The Department is not endorsing any particular formulation of an ERPO statute, and the model is not intended to provide a comprehensive scheme that could be adopted wholesale,” the DOJ wrote. “Rather, this model statute draws from the state laws already in existence; identifies key provisions that may be important to help ensure fair, effective, and safe implementation for such a law; and identifies options for states to consider.”

In drafting its own legislation, the department said each state must account for its own policy, legal, constitutional, administrative and operational considerations and requirements. States are advised to consider reviewing any proposed federal legislation that would create incentives for establishing particular forms of ERPO or “red flag” laws.

The entire model legislation can be read here. 

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