Virginia Law Review: Red Flags Laws on Safe Legal Ground… For Now

Virginia Law Review: Red Flags Laws on Safe Legal Ground… For Now
California Governor Gavin Newsom’s red flag law is among the most expansive in the country. (Photo: Gavin Newsom Facebook)

The first extensive scholarly analysis of so-called “red flag” laws has concluded that the statutes are constitutional but could still face a number of challenges in the future.

The article, published in the Virginia Law Review, argues that the central constitutional issue pertinent to red flag laws is not gun rights but due process.

“Although the Second Amendment continues to draw much of the attention, the more substantive and pressing concern is whether ERPOs [Extreme Risk Protection Orders] violate gun owners’ due process rights,” the article reads.

Jacob Charles and Joseph Blocher of the Duke Center for Firearms conclude that Supreme Court precedent allows for the kind of red flag laws that have been passed in nineteen states and the District of Columbia.

“Although we do not undertake an exhaustive or individualized assessment of various state laws, we conclude that the basic structure of existing extreme risk laws satisfies the requirements of due process,” they say.

Though they admit that there hasn’t been much case law on this issue, Second Amendment challenges to red flag laws have largely failed. The authors cite two examples from courts in Connecticut and Indiana that both ruled red flag laws do not “place a material burden” on the “core” right of law-abiding citizens to bear arms in self-defense.

The due process challenge is more robust, they say, because all red flag laws allow firearms to be seized without a hearing where the accused is present. These seizures come after a petitioner asks the court to remove firearms from the individual until a full hearing can take place. Most laws require this hearing to take place within 10 or 14 days, but in the meantime, the individual has already lost his or her firearms.

SEE ALSO: New Paper Suggests ‘Red Flag’ Laws Will Discriminate Against People of Color

The authors argue that these temporary seizures meet the standards laid out by the Supreme Court for other temporary restrictions on constitutional rights.  

“The Supreme Court has permitted these types of ex parte orders in similar situations involving fundamental interests when necessity requires quick action,” the say.

Under one set of criteria, laid out in Mathews v. Eldridge, a law is constitutional if it does not impose “hardship” on an individual, there is little risk of error, and the government has a legitimate public interest.

Charles and Blocher argue that red flag laws satisfy all three criteria.

In regards to the first, they say, “The ‘hardship imposed upon’ a gun owner by a temporary deprivation should not be overstated. It is exceedingly unlikely that a short-term ERPO will deprive a person of the ability to effectuate the ‘core’ Second Amendment interest in armed self-defense.”

The authors do admit that red flag laws will still face challenges moving forward. There has been little evidence thus far that red flag laws actually work, and civil liberties groups have taken issue with expanding the types of people who can ask a court to have someone’s firearms seized.

“One flashpoint in the laws is who can petition for an order, and some states have had pushback from both gun rights and civil liberties groups when the class of petitioners broadens out to individuals with more tangential relationships to the person alleged to be dangerous,” Charles told the Michael Bloomberg-funded publication “The Trace.”

SEE ALSO: Virginia Uses Red Flag Law for the First Time to Confiscate Firearms

Even in the article, Charles and his co-author admit that family members, co-workers, and teachers may abuse red flag laws to harass innocent people.

“…The broader the category of petitioners, the stronger the concerns about misidentification and abuse,” they say. “In certain toxic family environments—those involving serious distrust or abuse, for example—it is possible that false claims might be filed in an effort to harass or even disarm those who do not present any legitimate threat.”

Others have pointed out that red flag laws are duplicative of other, more helpful, tools. Powhatan County, Virginia, Sheriff Brad Nunnaly said during a town hall earlier this year that the state’s Temporary Detention Order (TDO) would be more helpful because it allows law enforcement to obtain mental health care for the individual.

“I doubt we will utilize [red flag laws] at all because I cannot think of an instance where the red flag law would apply to you and you do not also need mental health care… if we determine there’s a threat, then we will take care of that person and we’ll continue to use the TDO process,” he said.

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  • Patrick November 11, 2020, 6:18 pm

    It’s interesting that the law review article used a case about disability payments when discussing ERPOs. What they don’t tell you is that case held “the decision regarding disability benefits will normally turn on routine, unbiased medical reports, and thus an evidentiary hearing has less value than in the welfare context. Also, there are many procedural protections already in place – the questionnaire, medical records, and access to the information on which the state relied – to ensure due process.” So you get no hearing at all.

    They intentionally leave out the Goldberg case (due process hearing for welfare benefits). If you get a hearing for welfare benefits because that is considered property, why would you not get one for actual property you own. The article does a disservice by using the standard from Mathews. One wonders if that was intentional. They also work around the second point about the risk of error. We’ve already seen cases where the error was great. Make the wrong relative mad, and you can face getting your guns removed (sound familiar).

  • Ej harbet November 11, 2020, 7:21 am

    If you are truly a threat they need to arrest and keep you in custody!
    Weapons are only tools used by the person who is either good or for me,I like my freedom and my weapons and I have spent almost a half century gaining knowledge in making war. It’s a hobby that goes with my passion for history. If I go off the rail I hope you red flag me and the gentleman sent are good at stealth and find me the help I need.
    If you unjustly red flag me and leave me free you can expect vigorous and relentless retribution.

  • Mark - IN. November 7, 2020, 10:54 am

    There was a Mel Gibson movie “Conspiracy Theory” where he booby-trapped his apartment with explosives. One day the government types kicked the door in and raided into his apartment and it blew up and burnt up with them inside of it while he was escaping out through a tunnel into another vacant apartment. Cool idea. If they come with warrants to take your guns you walk outside far enough away without saying a word or acknowledging their presence and LET THEM carry out the warrant while you don’t participate or obstruct and exercise your right to remain silent and not incriminate yourself from a safe, safe, safe distance. What happens while THEY carry out THEIR warrant becomes a matter of OUR 4th Amendment. You don’t invite them in. THEY force entry on their own while you simply and merely maintain silence and watch the show from afar.

  • Dan November 6, 2020, 2:05 pm

    It is time to study the many publications on asymmetrical warfare starting with Roberts Rangers Rules from the French and indian Wars, TM31-201-1 on incendiaries,FM 3-05.130. Army Special Operations Forces . Only lazy dummies require assault rifles. The bison was eradicated with single shot Springfield trapdoor muskets. I have shot through both walls (.33 inches each ) 4″ schedule 80 pipe with a flintlock .575 round ball. Think that won’t go thru an engine block?

  • 2WarAbnVet November 6, 2020, 11:22 am

    Consider “The Reign of Terror” that followed the French Revolution. It was possible for anybody to accuse somebody they held a grudge against as a counter-revolutionary. Since defense counsel and witnesses weren’t allowed, the accused was almost invariably condemned and faced the guillotine. The similarity between “Red Flag Laws” and “The Reign of Terror” and the totalitarian dogma that spawned both is unmistakable.

  • Haywood Jablome November 6, 2020, 10:00 am

    Sorry, this isnt constitutional. We the people can read. Just because some dick head lefty says its OK doesnt mean it is. I will not comply. Sorry about your luck.

    • Hardtimez November 6, 2020, 1:48 pm

      Trump supports it.

      • rocky November 6, 2020, 7:57 pm

        But didn’t he say he was pro-2nd Amendment? (sarc).

      • Ej harbet November 11, 2020, 7:33 am

        It ain’t about trump anymore.
        And Biden? His brain is all but cottage cheese and your body won’t survive that way.
        Its about a Marxist named Harris who will turn the weapon of government against you.i sincerely hope you fudds are the first she obliterates. The fires of your destruction will be my warning to disappear into the forests with my family and live free until I can no longer

  • Rob November 6, 2020, 9:23 am

    This is troubling, and wrong IMHO. Other countries have had laws like this and they’ve been used against people such as landlords or even road rage victims. That guy passed me, I’ll fix him! Some people are crazy. The result is sometimes it turns out to be a swatting. The victim is killed by police. I wouldn’t be surprised if someone that doesn’t even have a gun in the house ends up dead. In Maryland there’s a very low standard. We’ve already had some deaths that didn’t have to happen. I think the first one was the result of a concern from a guy’s sister. She had no idea she was sending the police to kill her brother. That’s what happened. It’s easy to Monday morning quarterback the police, however I think they handled it badly.

    The law is ripe for abuse. We have due process that we’re entitled to. I don’t understand how that’s not being violated. No one can defend themselves if they don’t even know they’re being accused of something.

  • Stephen November 6, 2020, 9:19 am

    …And this is how it starts folks:

    A nibble here, a court case there, and pretty soon these bastards have your guns! I say, follow the letter of the law, not some liberal jackass in a black robe that doesn’t give a rat’s ass about the constitution! If it’s not in that constitution? It doesn’t pass the smell test. PERIOD!

  • Mark Baldridge November 6, 2020, 8:49 am

    Americans gave up their gun rights with the passage of the NFA. The courts let the Republicans and Democrats infringe on our Constitutional right. Semi-auto will be added to the NFA and then cased ammunition. The NRA failed to stop this illegal law.

    • Sam W November 6, 2020, 11:54 am

      I didn’t give up shit. I did have the comfort and sanctity of my home taken from me. Sorry, I will not comply, even knowing the consequences.

    • Hardtimez November 6, 2020, 1:53 pm


  • Rich K. November 6, 2020, 8:49 am

    They need to start challenging “red flag laws” on a “due process of law” basis instead of a 2nd Amendment basis. Presuming someone of being “dangerous” without corroborating evidence, just on an anonymous phone call or a bitter ex’s say-so, is presuming guilt before innocence is proven. And then the victim of the gun confiscation has to prove he or she is “safe” to get their guns back, again, putting the burden of proof on the victim.

  • Dan L November 6, 2020, 7:26 am

    As a collector with a large number of guns, I’m concerned with another aspect of these laws which I’ve never seen mentioned. With collectible firearms in particular, condition is everything. I have pristine rifles which are well over 100 years old, yet look as though they were made this week. It has taken a lot of years and a lot of money to acquire these. Yet if I am falsely accused of something and my guns are seized, I won’t be getting back the same collection that was taken. The police have no obligation to handle my collection with any concern for their condition. My pristine firearms will have been dumped into a trunk or a van, have police evidence numbers engraved on them, then piled in an evidence room somewhere. When I do eventually get them back, they’ll be covered in dents, dings, scratches, rust, and engraved numbers. The guns I’ll get back will have lost a great deal of value. I will, in effect, have been punished and fined thousands of dollars because someone else made a false allegation. Where are the provisions in these laws which require the police to preserve and protect from damage the firearms they seize, and where is there a requirement for restitution for my loss when they don’t?

    • Rob November 6, 2020, 9:25 am

      I work with a gun shop. The owner says that happens. Even to the point of where they are stored. Sometimes that’s an area that is damp or open to the outside. So they rust. They could be in there for years that way. You can bet they wouldn’t store a painting in those conditions.

  • Loren Watts November 6, 2020, 6:29 am

    WHAT does it matter now. Rule of law has died. Elections are corrupt and run by political elites, big tech and media. The national education system has taught people to have their countermand follow what is a communist leadership from the political establishment elites.

    The only justice will have to come after the next civil war. If it’s not too late.

    • Frank November 9, 2020, 8:17 am

      I’m afraid you’re right on target. I took an oath to uphold and defend the Constitution. Although I don’t get “paid” for it anymore (pay wasn’t much and not the issue anyway), the oath hasn’t expired, and I haven’t renounced it. If you haven’t made arrangements already to protect yourself and your family from the lawlessness of the mob… it’s time.

  • Ed Sunderland November 6, 2020, 6:25 am

    Red flag laws are unconstitutional flat out and there is no weasel room. Starting with the 2nd amendment we march over to the 5th amendment. Have a read and tell me what you think!

    No person shall be held to answer for a capital, or otherwise, infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Then there is the 14th. Red Flag laws are very clear violations of the US constitution and not just one section but three. The largest problem with this is that conservatives are allowing this miscarriage of justice to prevail as an easy solution (they think) to this problem but what it does is dilute the constitution altogether and that is the real danger. The so called “Patriot Act” was one of the largest violations on American Liberty ever concocted and needs to be shut down. We would be better off ejecting the ediologies that harbor terrorism in their ancient text.

    We already have unchecked people running for president like the original userper and liar Obama. He, according to his fake narrative was born to a Kenyan dad and American mother. His “dad” at the time was already married in Kenya and his mom was 18 again according to his fake narrative and the age required to transfer her American citizenship was 19. We’ve been screaming for years about this but no one listens. Then there is Ted Cruz, dad a Cuban and mom an American/Canadian or something but the US immigration law says in order to transfer American citizenship to a child born abroad the parents must be married (we know Raphael Cruz was still married to Julia Garza) not Eleanor his mom and both must be US citizens. Cruz claimed he was a natural-born citizen and he is not just like Obama, Jindal, Marco Rubio, Kamala Harris and Tulsi Gabbard. A natural born citizen is a native who is born to parents, who are citizens of their country to put it simply and is known as natural law.

    We have to stop this machinery of constitutional destruction now.

  • Pete Farris November 6, 2020, 6:18 am

    I have to disagree with this article. The difference between ERPOs and other legal actions cited is that ERPOs require no demonstrated threat. And they ignore the very real possibility that they are making the subject defenseless against physical abuse. And since the complainant may remain anonymous, there is no one to be held liable for damage to what may be valuable property. The reticence of authorities to return seized guns, something I have observed, also militates against ERPOs.

  • Harry Ballsach November 6, 2020, 5:05 am

    By the way- getting those guns back often takes longer than the institutions hold them for before they are destroyed. I know from personal experience.

  • michael November 6, 2020, 4:06 am

    Of course the Red Coats & Communist find it Constitutional. The US is gone.

  • Christopher Chason November 6, 2020, 4:05 am

    The Leftists are GOING to implement these type of “Laws” and/or Rules NO MATTER WHAT is said to prevent them! This is History repeating itself! (See Adolf Hitler, Joseph Stalin, “ad-infinite-m” the list of Tyrants in history) They ALL disarmed the victims FIRST! WE the Sheeple have sat so complacent for decades, telling ourselves “It can’t Happen Here!”
    Crooked, anti-American Judges and Politicians (and simply STUPID ones – the Useful Idiots who do the bidding of the TRUE Leftists) have been allowed into positions of power and authority and are NOW poised to DESTROY this Republic! WHY? BECAUSE THEY HATE IT!!! PERIOD! These type have existed since the original Revolution – they were called TORIES! They did not WANT Freedom or Liberty! They WANTED the KING! They still exist today! They simply HATE the Republic and will do whatever it takes to UNDO it! And the Sheeple have gone along like lambs to the slaughter and ALLOWED the enemies of Liberty to do what they wished!
    We The Sheeple keep RE-ELECTING the same CROOKS Term after term, so that we have to wait for them to DIE to remove them from office! Now it is TOO LATE! They have put they’re sycophants into power across the board! IF the Leftists are allowed to steal this election – as it appears they may get away with – be prepared to surrender your’ firearms! They WILL outlaw them! You can NOT conquer an armed populace! They WILL disarm you, first thing!

  • Mark N. October 22, 2020, 2:31 am

    I have argued since these laws first started being enacted that the due process issue raised against them is overstated. As things now stand, it is a relatively simple process to obtain a domestic violence protective order on essentially the same showing, which TRO if issued includes a firearm restriction which remains in place until the actual hearing two weeks later. Yet all such laws have withstood due process attacks.

    I also agree that ERPOs will get relatively use because of the DVRO process and each state’s mental health detention provisions allowing for involuntary holds for psychiatric observation and possible involuntary commitment. As we know, an involuntary commitment results in a lifetime ban (which at present has yet to reach the higher courts). So I have to also agree that these ERPOs really do not add much if anything to the “threats of harm to self or others” remedies currently available, or actual criminal prosecutions for domestic violence (convictions for which also result in lifetime bans).

    The one area where I see a high risk of abuse is the extension of the remedy to teachers. We have all read of several teachers calling the police on students when a “firearm” (BB gun or toy gun) appeared on screen during a zoom class.If a teacher feels “threatened”by a toy gun inside a student’s own home, how long will it be before one or more tries to swear out TROs for an ERPO?

    • RHT November 6, 2020, 5:42 am

      Most teachers are left wing nut jobs and will abuse the law

    • Pete Farris November 6, 2020, 6:24 am

      The main difference between an ERPO and a DVRO is that the latter requires some offensive action. It’s like the difference between shooting an armed intruder in your home at night and shooting a neighbor through the door because you’re tired of their sponging cups of sugar.

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