From your experience, would it have been different?
Personally, I think if I were in really dark place, capable of hurting myself or others, I think I would rather be separated from my weapons for a bit while I got help than be forcibly incarcerated or declared mentally incompetent. Wouldn’t this latter path preclude me from ever purchasing a weapon again?
Like I said, I think the conversations around red flags are more nuanced than they appear. Glad to be able to have them here.
My biggest concern is the gradual creep that comes into play, once a “new” tool gets added to Law Enforcement’s tool. As societal acceptance increases, (because let’s be honest every new order is going out with huge scrutiny right now) but as each new order goes out and it passes scrutiny, you have to realize at some point the scrutiny will diminish and then standards will slip, and thats when abuses of the ERPO’s will start to slip through.
Plus (this is my hugely cynical and jaded opinion) once you accept one infringement, it is almost always the beginning of that slippery slope towards more gradual infringements. To quote a scripture inspired quote. The pathway to hello (subtract the o) is paved with good intentions.
They knew the man had weapons and suspected he had mental issues, which is why they were seeking the MIW. A tactical team showed up at his home ready to bust down doors. He barricaded himself in a room and started shooting. Assuming, they didn’t notify him that they were coming for him so he could prepare, I cannot say it would have been any different.
And I agree with you, I had a relative who was in a dark place and we offered to take his weapons away until he got himself together. He beat us to it and had a friend who was closer to him take them all away. He sought counseling and is doing better now.
Getting self help would generally not ban you from obtaining firearms but if an MIW turns out to being found mentally incompetent, it does lead to being prohibited from having firearms.
Yeah, I hear you, @Zavier_D. Vigilence against over-reach is definitely the name of the game, as is insisting on due process.
In this particular case, though, I think the new tool is actually LESS extreme than what currently exists, and may actually be a step in the right direction. Without Red Flag Laws, if someone is really iminently dangerous to themselves or others, the current tools are either forced incarceration or a Mental Inquest Warrant. Either way, it is you that is “confiscated,” not your guns, which I imagine could create its own host of problems, including perhaps losing a job or worse. Furthermore, as @MikeBKY notes, if the MIW leads to you being found mentally incompetent, you could lose the right to legally buy firearms in the future.
I live in a deep blue state where we already have Red Flag laws and universal background checks – two of the policies being implemented in Virginia – and from my experience as a 2A advocate, they just aren’t that onerous. Moreover, they seems to be doing some good.
Having said that, it’s also a pretty good state for carrying in general: shall issue, open carry, no restrictions on mags or guns, and lots of public land with plenty of where to shoot. As you note, vigilence is the key to protecting all of that.
Thanks, @MikeBKY. Having your personal and professional perspectives here is really beneficial. I usually learn something, and I’m grateful to you.
You have a point on this, but I don’t think it necessarily points to ERPOs being a good idea.
First, “who” is determining the person is an imminent threat to themselves or others? Without ERPOs, it is usually LEO or someone else who has been trained at least to some degree to identify dangerous behavior. With ERPOs… anyone can do it.
Second, what is the level of proof required? Without ERPOs the bar is pretty high. I forget the legal term, its less than “beyond a reasonable doubt”, but more than a “preponderance of evidence” (aka more likely than not, aka 51%). With ERPOs… the bar is extremely low. Hearsay, opinion, etc are usually allowed.
I think this is why incarceration/MIW have such grave consequences, because they do have a high burden of proof and therefore yes you are probably “guilty” of what someone is accusing you of.
Additionally, I think removing the person from their environment is the 100% correct response if they are credibly considered to be dangerous. Taking a sad/angry person’s stuff and telling them they’ll have to goto court to get it back will only make them sadder/angrier. And they still have access to everything that’s not a firearm. Taking them into some sort of custody is a better solution for preventing them from harming anyone.
But I do agree that we need something in the middle, where a person who may be dangerous can be identified so they can get help. Not a single ERPO that i’m aware of does this. There should be a mechanism where a person can get help if needed so they can come back to normal life, or be upgraded (downgraded?) to incarceration/MIW if that’s what is needed. This is a spot that is lacking in the current mental healthcare system. Most of the time (especially suicide), a person is just going through rough patch and needs to make it through to the other side (aka a temporary problem). And being able to get help without permanently taking away any rights, or being branded (can’t get jobs later) is nothing but a positive IMO.
UBCs aren’t onerous in and of themselves. I have exactly zero problems getting a BG check whenever I purchase a firearm. The problem with UBCs is they do exactly zero to prevent suicides, murders, or mass shooting. And they are literally unenforceable, and they are a a step on the ladder that leads to registration which leads to confiscation. On a good day, you can probably convince me to give up some rights if it’s “worth it” in some regard to safety for myself or others. UBCs are far from that.
Red Flag laws are only onerous to those who’ve been served by one.
That is one of the reasons I have a problem with them. We’re here to take your guns, have a nice day.
In Kentucky, and in other states I am familiar with, Emergency Orders of Protection for Domestic Violence, Interpersonal Violence and Extreme Risk Protection Orders initially require a judge to determine there is probable cause to issue the emergency order. The subsequent hearings are civil proceedings, not criminal and the level of proof is preponderance of the evidence. Generally speaking, probable cause and preponderance is “more likely than not” or 51%. The difference between the emergency order and the regular order is that the respondent is afforded the opportunity to introduce evidence on his behalf at the hearing.
Everyone should also keep in mind that search warrants, arrest warrants require can only be issued upon probable cause pursuant to the Fourth Amendment as are felony indictments and arrests made without a warrant.
In her twisted world the “child in common” was her son. The Police Officer killed her son, ergo, they have a “child in common”. See?
Stranger than science, truer than fact.
Do you think you will hear about it through the MSM? Our experience is that it is spun to fit otherwise politicians would have to admit they made a mistake.
Well reasoned across the board, @Harvey, and thanks for engaging. My sense is we mostly agree, and I love this line:
Fair enough. But I also try to keep track of what’s going on in my state and what I hear in others. In our state, the only person who can initiate a Red Flag is an LEO or family member. We’ve only had it for a couple of years, and so far the record is generally positive. Law enforcement is working with mental health to offer whatever is needed along with separating them from their firearms so that there is appropriate followup. Many folks acknowledge that they were in a bad place, and many are grateful for the intervention. As I say, it’s early yet, but first signs are that suicide and homicide rates are being impacted.
I also agree that due process and slippery slopes should be well guarded, but so far I just don’t see an actual record of rampant abuse of either ERPOs or UBCs (excepting of course CA and NY). Lots of concern about what MIGHT happen, but little record of what HAS. In our state, neither the federal nor the state government sees a record of a gun sale, and may not by law. It is kept in the gun shop and can only be accessed with a subpoena as part of a criminal investigation. I just don’t see any political appetite for registration and certainly not for confiscation in the vast majority of the country (again, exepting maybe CA and NY).
In eight years under Obama, and currently even in the bluest of states, no legislation for registration or confiscation has had even the remotest chance of passing. The two candidates with the most extreme 2A positions, Swalwell and Beto, were the first to drop out for lack of support.
Having said all of this, I’m with you that vigilence is the key, and I’m hopeful that we’re all creative and thoughtful enough to try to find the nuanced solutions that are necessary. Again, I appreciate you engaging.
I’m a huge advocate for suicide awareness and actually have lost a family member and friend through self-harm.
BUT there are other ways you can get needed help without Red Flag laws. In Louisiana (I think this is nationwide) but here (Family member, like the law in your state) Can go to the parish Coroner and get the individual at risk committed. My thought is this would be way more effective by getting evaluation as well as being in presence of health professionals.
Just taking their guns will not stop self-harm. My friend chose a different method and don’t feel it would honor him to say just how but my point kind sir is that these laws, as usual, would only be harming to responsible, law-abiding people like ourselves.
Thank you for your thoughts on this!!
Blessings,
Randall W. Anderson
This is a good example of part of what’s wrong with red flag.
It’s just another way for them to take our guns
Red Flag laws are a communist Comrade dream come true
Nono, thank you for engaging 
As they say, it takes two to tango, and without civil discussion we aren’t getting anywhere. And I agree, I think we are mostly in agreement around ERPOs.
If you don’t mind me asking, what state is this? ERPOs vary quite a bit from state to state.
Initiation by LEO (I’m fine with this) and family member (I’m not fine with this) is pretty common. Some extend that to co-workers or roommates or having previously had a relationship. I think the bar for non-LEO should be higher. While there is reason behind thinking that those people would know the ERPO recipient better than a stranger, that is also the group that is likeliest to have a personal grudge with the ERPO recipient.
How does LE work with mental health in your state to give the ERPO’ee help? In Virginia, when I spoke to my representative (ERPOs haven’t been passed yet), i voiced my concern about the ERPO’ee just getting their stuff taken and sitting there without help. His response was “LEO serving the ERPO will leave them business cards of places they can go to get help”.
So in my little bit of research (an example from washingtonpost) there are some states that have served hundreds of ERPOs, but they do not have a reduction in hundreds of suicides. And they definitely dont have a reduction of hundreds of mass shootings. Some, like DC, have barely used ERPOs.
I think I share this concern with @CascadiaNow in that I think (but I’m not 100% sure) that being committed involuntarily could cause you to lose your 2A rights. Not to mention it may pop up on some job applications.
I’m still not convinced ERPOs are the answer, but I do think there is a hole in the system between “nothing” and arrest.
Key: Bold and Emphasis text are not tone but to help get to the underlying point to the reader. I’ve been accused of being a butt hole for trying to help. lol.
Thanks for the thoughts you shared in regards to my personal opinion, I think you are right in the fact of it not working, but it’s better than having a person take your 2A rights away. I’ve heard healthy normal people say they wanted to die or kill themselves but did not mean it!
Today, I’m certain they possess firearms, and are outstanding people in my opinion but there right never needed to be stripped.
Moreover, judgment is required in these types of deals. In my government relations course, I’m taking right now, describes judgment like this and, I think it relates now.
First, the author pointed this out,
“The broader assessment of what makes sense after one accumulates as many dates and test as many perspectives as possible.” (Nau, 2017)
The author then indicated that judgment is informed calls given with enriched facts and accumulated knowledge(2017).
With this, I’m suggesting that we must have more evidence than even what’s being presented under the law now that we don’t cause damage to one’s future opportunities, including the purchase of a firearm(s).
Thanks, brother, I pray your Tuesday starts off blessed.
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@Harvey I appreciate your evaluation of this. In the world before EPOs, DVOs, IPOs (Interperson Protective Orders) and now ERPOs, most actions like this were initiated through police interaction with a suspect or victim that lead to some type of a warrant being issued and executed. It could be a search warrant, an arrest warrant or a mental inquest warrant*. All of these tools are still available and each had to be supported by probable cause before they were issued. *Mental inquest warrants could be requested by others and still had to be supported by probable cause but they are not handed out like candy.
This pattern changed with the creation of Emergency Protection Orders and Domestic Violence Orders. An EPO was issued by a court based on a petition by the alleged victim and probable cause is still required, but is based solely on the word of the victim without any further investigation. The victims were also limited to family members, co-inhabitants and persons who had children together. The victims are generally assisted in the process by social workers who help them draft their statement of probable cause. I believe most of these are signed by a judge without any other investigation.
After an EPO was served, a hearing is required to determine if the EPO should become a DVO with the level of proof being preponderance of the evidence. This process is being expanded with IPOs and ERPOs and expanding the groups who can initiate these devices.
Now here is the real ringer. All of the devices are civil in nature but become criminal if violated. Being civil, the level of proof is preponderance of the evidence, which is basically probable cause (51%), there is not a presumption of innocence, you have the right to remain silent but it can be used against you, and you do not have the right to have appointed counsel nor do you have the right to have a jury decide.
That’s good news, @MikeBKY. There should be consequences for false accusations.
Thanks for expressing your thoughts, @CascadiaNow, I respect your opinion. Aren’t there already laws on the books about people who are clearly imminently suicidal or homicidal being detained for a mental health watch? I’d rather have those people getting mental health treatment than just taking their firearms away.
I wonder where the anecdotal evidence is coming from? If mainstream media or politicans had anything to do with that information, I don’t think it’s solid evidence (IMO).
Great discussion here, folks and, as ever, I’m grateful to USCCA for offering this space for civil discussion and to all here for engaging thoughtfully.
I’m going to try to summarize my own thinking cause I’ll be on the road for a bit; please don’t interpret silence in the next little bit as disinterest.
First, I think @Harvey summed up my postion best (although to be fair, he brought in the God of Thunder for support…):
Since I’m neither a lawyer nor a mental health professional, all I can offer is my non-professional views of what seems to be working here in Oregon:
So that’s one point I think a lot of us agree on: taking someone’s guns alone is not an effective approach to those imminently suicidal or homicidal, but needs to be considered as part of a package.
My own view, as stated elsewhere, is that a well-designed ERPO can be a LESS intrusive tool than those that currently exist. Without an ERPO, there really are only two possibilities if someone is in a really dark place where they might hurt themselves or others: incarceration or a Mental Inquest Warrant, both of which could have far reaching effects, and may result in the loss of being able to legally purchase a fire arm.
Anecdotal evidence is that they may do some good. Again, @Harvey (with help from Thor) caught me – the evidence is anecdotal, not statistical. (And yes, sorry, @Dawn – most is from the local papers. To be fair, though, I have not noticed undue bias around here on these specific issues.) Here is one write-up from year 1 of our experience:
Shots Not Fired: A new Oregon law takes guns from people who may do harm - oregonlive.com
And one from year 2 (since Public Radio highlighted USCCA, I though it might pass at least some muster):
For a possible path forward along these lines, I’m extremely grateful to @Zavier_D, who on another thread posted an amazing video of Amy Swearer’s testimony in Texas. The title says it all:
Amy Swearer: We Can Protect Life While Respecting the 2nd Amendment
I took the opportunity to look her up at the Heritage Foundation, and highly recommend her to this community. She is deeply pro-2A and is committed to evidence-based approaches to these issues. She has done her homework, and basically has fleshed out a detailed critique of existing ERPO laws, and also offers her model of what a good one would look like:
That’s my 4 cents (yeah, a bit long, sorry). My one concern is that taking a hard position against ANY red flag laws, based mostly on hypotheticals of where they MIGHT lead, precludes us from engaging in precisely this kind of nuanced discussion that is required to adress these hard public policy issues, and to have input into the product. (@Harvey – it sounds like you are really engaged in VA; maybe there is a space to have input yet?)
Thanks again to all for this dialogue, and especially to USCCA and @Dawn for the space to have the conversation.
