An Overview of “Red Flag” Laws

Rep. Karla Rose Hanson Interim Judiciary Committee Meeting Nov. 13, 2019 Red flag laws reduce gun violence & save lives

• Suicide by gun • ND had all-time high of 93 suicides by firearm in 2017 1 • ND ranks #10 nationally for its rate of gun suicides 2 • Fargo Police responded to 1,377 suicidal person calls in 2018 3

• Fatal domestic violence incidents • 15 ND women fatally shot by an intimate partner from 2013-17 4 • DV calls are the most dangerous for law enforcement officers 5

• Mass shootings 1 CDC: https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm 2 CCD Fatal Injury Report – five-year average from 2013-2017 3 Fargo Police Chief David Todd testimony on HB 1537 – 1/30/19 • None in ND… yet 4 FBI data on firearm fatalities - everytownresearch.org/everystat 5 DOJ study on LE fatalities: https://cops.usdoj.gov/RIC/Publications/cops-w0858-pub.pdf What are Red Flag laws?

• Called Extreme Risk Protection Orders or Public Safety Protection Orders • Save lives by enabling action before warning signs escalate into tragedies • Family or law enforcement petitions the court to temporarily prohibit a person who has been determined to be a danger to themselves or others from possessing a gun • Uses a civil process • In place in 17 states Most Common Questions

Are these laws are constitutional? Yes. Case law repeatedly affirms that public safety regulations do not conflict with the 2nd Amendment. 1 Do these laws have robust due process protections? Yes. Appropriate actions and checks must occur before an order can be issued. Are these laws effective in saving lives? Yes. Research shows a reduction in the firearm suicide rate in Indiana & CT and the prevention of mass shootings in FL, CA, MD & WA. 2

1 Legislative Council analysis of case law: 21.9149.01000 2 Research https://everytownresearch.org/extreme-risk-laws-save-lives/ How Red Flag Laws work: robust due process

Petition made to court by family member or law enforcement Notice given to respondent Hearing held in civil court Evidence presented by petitioner to judge demonstrating that respondent poses significant danger to self or others Many states have penalties for presenting false evidence. Most states specify types of evidence a judge is permitted to consider. How Red Flag Laws work (continued)

Response. Respondent has opportunity to respond and present own evidence

Decision. If granted, orders typically in place for up to 1 year. Respondents have option to appeal

Emergency orders. If evidence of imminent danger, judges can issue an emergency order that immediately suspends firearm access until a full hearing is held, typically within 14 days. Who supports red flag laws?

• Our constituents • Approximately 8 in 10 Americans favor a Red Flag law, including high majorities of gun owners and Republicans 1

• North Dakota leaders 2 • Law enforcement: ND Police Chief Association & ND Association of School Resource Officers • Education: ND DPI, ND United, ND School Board Association • Violence Prevention Advocates: ND CAWS & ND Chapter of American Foundation for Suicide Prevention

1 Four separate polls conducted in Aug and Sept 2019 by Fox News, Global Strategy Group, Washington Post-ABC, and NPR found that 77-86% of Americans favor a red flag law. 2 HB 1537 testimony and press statements – January 2017 How red flag & involuntary committals compare

• Both used when a person is determined a danger to self / others • Both use a civil court process • Both allow emergency procedures • Both restrict gun ownership; red flag restriction is shorter & temporary • Civil commitment exclusively involves behavioral health concerns and requires treatment • Civil commitment restricts a person’s liberty (state hospital) • Red flag laws isolate the firearm instead of the person

21.9149.01000

October 30, 2019

Honorable Karla Rose Hanson State Representative 1114 Fifth Street North Fargo, ND 58102-3713

Dear Representative Hanson: This is in response to your request for an update on case law relating to public safety regulations, commonly referred to as "red flag" laws, and whether those regulations may be in conflict with the Second Amendment to the United States Constitution.

Public safety regulations are gun violence prevention laws that allow law enforcement officers or family members to petition a state court to order the temporary removal of firearms from an individual who may present a danger to others or themselves. The orders issued by the court prohibiting an individual from possessing a firearm are known as "extreme risk protection orders" in Oregon, Washington, Maryland, and Vermont; as "risk protection orders" in Florida; as "gun violence restraining orders" in California; as "risk warrants" in Connecticut; and as "proceedings for the seizure and retention of a firearm" in Indiana. As of October 2019, 17 states and the District of Columbia have passed some form of a "red flag" law. The specifics of the laws, and the degree to which the laws are used, vary from state to state.

The Second Amendment provides "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The United States Supreme Court, in District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), recognized the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home". The Second Amendment is fully applicable to the states through the due process clause of the 14th Amendment to the United States Constitution. In Heller, the Supreme Court held the Second Amendment does not confer the right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose and legislatures may still use a variety of "presumptively lawful regulatory measures" to prevent the violence associated with firearms including "longstanding prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." In Heller, the Supreme Court adopted a two-pronged approach to Second Amendment challenges. First, the court must consider whether the challenged law imposes a burden on conduct that falls within the scope of the Second Amendment's guarantee. If the law does not, the inquiry is complete. If the law falls within the scope, the court must evaluate the law under some form of means- end scrutiny. If the law passes muster under that standard, it is deemed constitutional. If the law fails, it is invalid.

To date, "red flag" laws have been upheld against Second Amendment challenges. Courts in California, Connecticut, Florida, and Indiana have held the "red flag" laws or firearm seizure laws in those states do not violate the challenged state or federal constitutional provisions.

2

In Hope v. State, 133 A.3d 519, 523 (Conn. App. Ct. 2016), the Appellate Court of Connecticut held Connecticut General Statute § 29-38c (seizure of firearms and ammunition from person posing risk of imminent personal injury to self or others) did not implicate the Second Amendment, as the law does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes. The law restricts for up to 1 year the rights of only those individuals a court has adjudged to pose a risk of imminent physical harm to themselves or others after affording due process protection to challenge the seizure of the firearms. The statute is an example of the longstanding "presumptively lawful regulatory measures" articulated in Heller.

In San Diego v. Boggess, 157 Cal. Rptr. 3d 644, 647 (Ct. App. 2013), the Court of Appeal for the Fourth District, Division 1, of California, held California Statute § 8102 (confiscation and custody of firearms or other deadly weapons; procedure for return of weapon; notice; destruction of weapon), which allows the state to seize firearms from persons detained for examination due to mental illness who are likely to cause a danger, did not violate the Second Amendment. The court ruled Ms. Esther Boggess had not demonstrated California's statute to be facially unconstitutional, and California therefore could continue to enforce the law to protect the health, safety, and welfare of its citizens.

In Redington v. State, 992 N.E.2d 823, (Ind. Ct. App. 2013), the Court of Appeals of Indiana concluded Indiana's red-flag statute did not violate the right to keep and bear arms, was not an unconstitutional taking, and was not unconstitutionally vague. In Redington, Mr. Robert Redington's 51 guns and ammunition were seized after authorities became alarmed by his behavior near the site where missing Indiana University student Lauren Spierer was last seen. Mr. Redington was never charged, but police detained him, and he was held for observation by mental health professionals. Mr. Redington's guns were confiscated by police under Jake Laird's Law, enacted after Laird, an Indianapolis police officer, was shot and killed by a mentally ill man wielding a gun. More commonly known as the "red flag law," I.C. § 35-47-14-1(a)(2)(B) enables law enforcement to take possession of firearms, pending formal hearings, from people who are found to be statutorily "dangerous." The Court of Appeals of Indiana found "[R]edington continuing to own firearms threatens to inflict 'particularized harm' analogous to tortious injury on readily identifiable private interests."

In Davis v. Gilchrist Cty. Sheriff's Office, No. 1D18-3938, 2019 WL 4656070 (Fla. Dist. Ct. App. 2019), the First District Court of Appeal of Florida rejected a constitutional challenge to Florida's "red flag" law. The appeals court rejected the arguments, including the arguments that the red-flag law was vague, overly broad, and violated due-process rights. The court opined "when reviewing a statute or ordinance that impairs the exercise of a fundamental right, the court must apply a strict scrutiny test to determine whether the legislation is written to address a specific and compelling state interest . . . [H]ere, the prevalence of public shootings, and the need to thwart the mayhem and carnage contemplated by would-be perpetrators does represent an urgent and compelling state interest." The court ruled the "red flag" law was not vague or overly broad and quoted a legislative explanation that found a "need to comprehensively address the crisis of gun violence, including but not limited to, gun violence on school campuses."

We hope this updated information is helpful. If you would like additional information or have any other questions, please contact us.

Sincerely,

Christopher S. Joseph Counsel CJ/RWT