After a recent spike in mass shootings, President Joe Biden announced a number of gun control measures via executive order. Of note was his call for a model “red-flag” law, which has the potential to find bipartisan support across the country, as 18 states and Washington D.C. have already instituted such laws. 

Those who have previously demonstrated that they may be a threat to themselves or others are already unable to legally buy a firearm due to purchasing bans on those with felony convictions, a past history of domestic abuse or certain mental illnesses. But what if someone demonstrates that they pose a threat after they’ve purchased a gun? So-called “red-flag” laws seek to address this problem by providing a legal mechanism to temporarily remove guns from individuals who may pose a threat to others or themselves through court issued gun violence restraining orders (GVROs). 

Some studies suggest modest reductions in gun violence due to “red-flag” laws, mostly through a reduction in suicides by guns. The laws themselves also raise serious civil liberties and safety concerns. 

The Second Amendment and the Heller decision enshrine an individual right to keep and bear arms, including guns. While convicted felons have been afforded all of the due process rights of the criminal justice system before being stripped of their right to own a gun, “red-flag” laws do not typically entail the same protections. The Fourth Amendment also guarantees the right to be free from unreasonable search and seizure. Without sufficient due process protections, citizens could be unjustly deprived of their rights. Additionally, these laws could increase the risk of dangerous encounters between gun owners and police when officers act upon orders to confiscate someone’s firearm. 

Consider a quick hypothetical. A woman breaks up with her boyfriend. She begins dating a new boyfriend, who legally owns a handgun. Learning of this gun, the vengeful ex-boyfriend files a “red-flag” complaint citing perceived emotional distress and suicidal comments on social media in order to disarm the new boyfriend. The police then attempt to go and confiscate the gun in the middle of the night, but the couple mistakes them for her ex-boyfriend. The boyfriend proceeds to shoot at the officers after they break down the door, and the officers then return fire, killing the woman and injuring the boyfriend. 

If you think the above hypothetical is unreasonable, it is an adaptation of the Breonna Taylor police killing, just substituting the real-life drug search warrant with a GVRO filed by a spurned romantic partner, which recently occurred due to Colorado’s “red-flag” law. Are such outcomes avoidable when crafting a “red-flag” law? Any attempt to mitigate these risks must consider at least four questions. 

First, who is able to request a GVRO? Many states attempt to avoid abusive filings by only allowing immediate family members or law enforcement to file claims and by criminalizing knowingly false claims. Finding a balance is critical, as allowing too many types of people to make claims will open the door for abuse.

Second, how can the government guarantee a swift and fair hearing to adjudicate the claims? With the time it takes to schedule a hearing, these laws have almost no opportunity to provide due process while also tending to the urgency that a GVRO claim carries. This difficulty is exacerbated by the need for the GVRO requestor to provide clear and convincing evidence before confiscation in order to protect due process.

Third, how long does the restraining order last? If the restraining order does contain a sunset clause beyond which rights will be restored unless there is a new hearing, a person runs the risk of being permanently stripped of his or her rights without a full trial. 

Fourth, can enforcement safely confiscate the gun? This will be especially difficult given that the premise of the “red-flag” order is that the person could be a threat to themselves or others, such as in the police shootings of Gary Willis and Duncan Lemp. Additionally, current police tactics for conducting search and seizures, such as the overuse of no-knock raids like in Taylor’s killing, cause situations to turn needlessly deadly far too easily. Any law would need to include a procedure for executing the order in a manner safe for both police and citizens. 

“Red-flag” laws sound great in theory but pose significant risks in practice. Resolving all such concerns may not ultimately be possible, and the public should pay close attention to how the Biden administration’s proposal addresses these due process and safety concerns.