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Bruce Bialosky

Are Red Flag Laws Dangerous?

Prelude: When I wrote this column I did not expect to have gun stores fighting to stay open especially in areas where public officials like to restrict gun owner rights. Who would have thought that pot shops would be deemed essential and gun shops not? At a time when public officials are releasing criminals so they can unload any concern for COVID-19 surrounding them, they restrict the rights of law abiding citizens who want to protect themselves and their families by acquiring a gun while the authorities pretend the police will protect all of us.


No one wants a crazy person to have a gun except for maybe the crazy person. People of all political persuasions agree on that point. Red flag laws have begun to spread throughout the states to keep guns out of the hands of unstable people. The question is whether they go too far and overshoot (no pun intended) their goal.

I have previously described the fact that anyone walking into a building, arena, mall or any other space for large group gatherings and starts shooting at strangers is the definition of a person that is severely mentally ill. With the increased frequency of these kind of public attacks, the question is how to curb or stop them from occurring. One plan is to take guns out of the hands of individuals known to be unstable.

Red flag laws started in 1999 in Connecticut following a mass shooting. While the laws have more formal names, by common convention they have come to be referred to with this simple nomenclature. There are currently seventeen states and D.C. that have the laws in place. The question is whether the laws are too broad and too casually take guns (that are a constitutional right as well as a potentially dangerous tool) out of the hands of citizens.

Two recent takes on red flag laws have been offered in Tennessee and Wyoming.

In Tennessee the proposed law would allow family members, household members, intimate partners and/or law enforcement to petition a civil court to temporarily confiscate (30 days) guns from an individual who shows an immediate risk of harming themselves or others. The proposal would start with the petitioner signing a sworn affidavit for the emergency protection order. A civil judge would then have to approve the order and the person would then be prohibited from buying or possessing a gun during the period of the order.

This is pretty much the standard format for a red flag law. There is a perception by some that the law does not provide for due process because at this point the restricted person does not have the right to protest until the order expires. Then a hearing occurs where they have due process and can be represented by legal counsel.

The law also does not provide for any mental health evaluation during the restricted period and allows the person to proceed with their lives. Nothing precludes that person from ramming his car into people or participating in a knife attack. Murders by knife are four times more prevalent than murders committed by a long gun in the U.S. it is plain to see the order is more focused on the gun than the person who could possibly use the gun.

Wyoming takes a different position. Their proposal looks first to the mental health of the individual involved with an evaluation before taking gun rights away. Prior to any order, the suspected unstable individual would experience due process as that person would have a court hearing with representation.

The Wyoming bill addresses the behavior of the person not just during the initial evaluation, but as deemed necessary with ongoing analysis.

You can see the difference between the two. One evaluates the behavior of the potentially dangerous person and the other confiscates guns first and then asks about whether the person is really a problem.

Baker Act statutes have been around since the first one was adopted in Florida in 1971. The Baker Act allows for involuntary examination (also referred to as emergency or involuntary commitment), which can be requested by a judge, law enforcement officials, a physician, or mental health professionals. The law allows for 72 hours of examination of whether serious mental illness exists thus predicating further action. Again, this focuses on the mental stability of the individual instead of an object that might be used to harm someone.

The approach of focusing on guns does not solve the problem of having a mentally instable person walking the streets who could do harm to themselves or others. Focusing on the person instead of a tool for harming others seems to be the path to accomplishing the goal of restricting disturbed people from committing either a murder or mass murders. Going after the gun is a “feel good” action that does not get us to our ultimate goal of a safer community.