Red Flag Laws: Pre-Crime in Our Time

“Those who sacrifice liberty for security deserve neither” – Benjamin Franklin

The 2nd Amendment to the United States Constitution has been a sentinel of American gun ownership since its ratification in the Bill of Rights in 1791. Since then it has been the major obstacle to those who wish to see arms taken out of the hands of law abiding American citizens.

Nefarious minds have recently concocted a way of overcoming that obstacle, however. Collectively referred to as “Red Flag” laws or “Extreme Risk Protective Orders” (ERPO), legislators have given themselves a convenient circumvention of Constitutional authority under the guise of security and public protection.

While the exact wording may vary from State to State, the theme remains consistent throughout; that law abiding citizens who have not committed a crime can have their firearms confiscated if they are vaguely deemed a “threat to themselves or others.”

The diabolical aspects of Red Flag legislation are that they rarely require court approved warrants or reasonable suspicion / evidence of wrong doing. The accused are also not allowed to face their accuser, and once weapons have been confiscated, it is up to the accused to prove that they are not a threat to society in order to have those weapons returned in an appeals process (some states reserve the right to retain the weapons indefinitely).

Not only does this violate the 2nd (right to bear arms shall not be infringed), the 4th (protection from unreasonable searches and seizures of property), and the 14th Amendment (right to due process), it is also in direct violation of the legal principle that one is considered “innocent until proven guilty.”

Under the presumption of innocence, the legal burden of proof falls on the prosecution, which must present compelling evidence to the “trier of fact” (a judge or a jury). The prosecution must in most cases prove that the accused is guilty beyond reasonable doubt. If reasonable doubt remains, the accused must be acquitted.

Under Red Flag doctrine, the burden of proof conversely rests on the defense (the accused) operating from a position of guilt. They also must prove their innocence at their own expense as attorneys will not be provided by the state in these cases as with traditional criminal proceedings.

Even self-proclaimed champion of the Constitution President Donald Trump stated “take the guns first, go through due process second” in response to the 2018 Parkland mass shooting which has inspired a large push for red flag laws across the country. He has since dialed his rhetoric back in regards to invasive gun legislation but those words will likely haunt the President this fall when he attempts a second term.

Many supporters of Red Flag laws claim that this kind of legislation will not be abused and will only serve to protect people from dangerous individuals inevitably set to “snap.”

However, these laws in their present state represent a greater danger to both law abiding citizens as well as to law enforcement that are made to carry out the orders.

In 2018, 61 year old Gary Willis of Maryland was served with one of these “protection orders.” In the ensuing argument that took place, Mr. Willis was gunned down by police for allegedly having a pistol on his person when he answered the door. No information regarding who submitted the complaint against Mr. Willis or how he presented a danger to others was ever released.

In 2020, again in Maryland, 21 year old Duncan Lemp was killed while asleep in his own bed when a SWAT team fired through his bedroom window at 4:30 am to conduct a “no-knock” raid inspired by an anonymous tip that he unlawfully possessed firearms. His girlfriend was also struck by fire from the unannounced law enforcement officers. Three “assault style” rifles were recovered but we have yet to be told if they belonged to Mr. Lemp as he lived with his parents who were also in the home asleep during the raid.

Mr. Lemp allegedly identified as a “3 Percenter”, known as a right wing militia group, on a number of his social media pages. In Maryland, medical professionals, educators or colleagues are allowed to file a “petition” as well as immediate family members. This is likely where the tips originated from in both fatal cases.

Regardless of questionable affiliations, reasonable people should be able to agree that a citizen of the United States should not have to worry about having themselves and their loved ones fired upon in the middle of the night for non-violent political beliefs.  

This is where the real danger of Red Flag doctrine comes into play. Unlike false rape accusations, these laws currently have no legal ramifications for those who make false or fraudulent reports to law enforcement which result in tragedy as with Mr. Willis or Mr. Lemp. The opportunity for grudges to escalate beyond words in this situation is alarming.

Some States maintain that only family and law enforcement can file a report. States like Maryland, however, allow for medical practioners, co-workers and former romantic partners to anonymously file a report regardless of evidence and are pushing for social media platforms to get involved. As with Mr. Lemp, it may have very well been someone who saw his social media page and decided to take advantage of a law that victimizes anyone who believes in the 2nd Amendment. We may never know.

The point here is that Social media can very quickly become an East German “Stasi-like” medium for friends, neighbors and even strangers to turn on each other in a life altering way if citizens are not vigilant of the ever evolving language utilized in ERPO’s.

President Trump, after the 2019 shootings in El Paso and Dayton, stated “I am directing the Department of Justice to work in partnership with local, state, and federal agencies, as well as social media companies, to develop tools that can detect mass shooters before they strike.”

Trump continued, “We must make sure that those judged to pose a grave risk to public safety do not have access to firearms, and that, if they do, those firearms can be taken through rapid due process. That is why I have called for red flag laws.”

The slippery slope here is who will be deemed a “grave risk” if radically left wing social media conglomerates like Facebook and Twitter are allowed to make those designations and file reports in a pre-crime like model that results not just in being banned from a media platform but in a SWAT team firing their own guns into the bedrooms of your loved ones.  

States with ERPO Legislation:

California
Colorado
Connecticut
Delaware
District of Colombia
Florida
Hawaii (colleagues, educators and medical professionals may file a petition)
Illinois
Indiana
Maine (Bill LD 1811 allows for police to take person into custody if medical staff deem so)
Maryland (colleagues, educators and medical professionals may file a petition)
Massachusetts
Nevada
New Mexico
New Jersey
New York (colleagues, educators and medical professionals may file a petition)
Oregon
Rhode Island
Vermont
Virginia
Washington

States Openly Considering ERPO:

Michigan
North Carolina
Ohio
Pennsylvania

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