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Senator Lindsey Graham (R-SC) has led the way in potentially drafting legislation that will encourage states across the country to adopt “Extreme Risk Protection Orders” or more broadly known as “Red Flag” laws. The announcement came mere hours after President Trump made calls for legislation similar to the kind that Mr. Graham is proposing.
“I spoke with the President this morning about this proposal and he seems very supportive. Many of these shootings involved individuals who showed signs of violent behavior that are either ignored or not followed up. State Red Flag laws will provide the tools for law enforcement to do something about many of these situations before it’s too late.” -Senator Lindsey Graham
The legislation is likely to come in the form of grants to state and local law offices who execute the requirements for the money being offered. Graham explains:
“These grants will be given to law enforcement so they can hire and consult with mental health professionals to better determine which cases need to be acted upon. This grant program also requires robust due process and judicial review. It does allow for quick action.”
Colorado is one of the most recent states to pass such a law. The law is largely unpopular with rural counties in the state, with several declaring themselves “2nd Amendment Sanctuary” counties. The reasoning for this is because of the wording of the law in Colorado, and in other states. It is being sold as a way for “family members” to report to authorities a person who may be a risk to themselves and others. However, the definition of what constitutes a “family member” includes; ex-spouses, former roommates (who lived with the person within the last 6 months), and estranged parents, stepparents, and grandparents.
If the judge overseeing the case determines that there is probable cause to confiscate the weapons, they will issue an order to do so within 24 hours. It is important to note that the person who owns the weapons will have no idea that any of this is happening until the police arrive to execute the order. After that, the “defendant” will have a court appearance within 7 days for the judge to determine if the weapons will be kept for a year or not.
Red Flag laws take the concept of “innocent until proven guilty” and turn it on its head. This is a law which punishes people before they have had a chance to defend themselves. It also places the burden of proof upon the accused, as opposed to the accuser. The law doesn’t specify what exactly a “preponderance of evidence” means.
While we do need to address the way we handle mental health issues in this country, the way this law is written simply does not provide enough protection against abuse. Additionally, the broad definitions of “family member” leave many people open to the possibility of having their guns removed by angry or activist roommates; vindictive ex-lovers or spouses; and family members who may not have a lot of interaction with the defendant.
The fact that counties within Colorado, North Carolina, New Mexico, and others are resolving to not enforce these laws should be telling to the state legislatures. If this is going to be the trend across the country, it may further divide an already divided country.