WILMINGTON—City Council will consider a resolution asking state legislators to join 11 other states in passing a “Red Flag” law allowing for the courts to seize firearms from people who are considered to pose a clear a present danger to themselves or others.
The resolution, put forward by Councilman Kevin O’Grady, asks legislators to consider a statute creating what are known as “extreme protection orders.” The resolution asks that the following issues be considered:
- the rights of all parties, including due process under the law
- create provisions to ensure individuals in need of mental health treatment receive appropriate care
- strengthen provisions to allow law enforcement to intervene and assist troubled individuals prior to tragedies occurring
- create safeguards to ensure this tool is not used as a retaliatory tactic
According to O’Grady, “the concept is it strikes a balance between the right to bear arms and the right of people to live without fear of those arms.”
For extreme cases
O’Grady said a Red Flag statute, similar to those in other states, would protect people in extreme cases, as in stalking cases or violent domestic situations.
“I recall, back when I was a litigator, I was trying a case and there was a break in the trial and the judge had to take a protective order case, which are pretty common. It was a spouse coming in to get an order against her husband – she was afraid of him – and she wanted a protective order,” O’Grady said.
“And (the judge) hears her out and says, ‘ok, I’m going to give you the protective order,’ and he signs it. And then he holds it up and he says, “you this? This is your protective order. This protective order is not bulletproof,” O’Grady said. “And that’s a situation that shouldn’t exist. There are people who are threatened regularly.”
The resolution would also ask for provisions for those with mental health and cognitive issues, such as dementia and Alzheimer’s. It could also theoretically be used to seize firearms from someone believed to be a risk to themselves.
“Then we have some folks that are dealing with mental issues,” O’Grady said. “People who regularly carry weapons when they were well and now won’t give them up. And there are several nurses, caretakers, family members who have been shot. Who’s at fault there? The fault is that there is no way to take those weapons out of their hands.”
So how would a Red Flag law work, if it were passed? Who would determine what does – and does not – represent a “clear and present” danger? For how long, and under what conditions, would firearms be confiscated?
How extreme protection orders work
According to O’Grady, an extreme protection order, sometimes called a risk protection order, would operate much like a standard injunction. A judge would decide whether or not a person was sufficiently dangerous and, if so, that judge’s initial order would then allow local law enforcement to obtain a list of licensed weapons belonging to that person and seize them.
Like a protective order, O’Grady said, extreme protection orders could be issued “Ex parte”— that is the defendant would not have to be present for the court to issue an order to seize his or her firearms.
The order could take effect immediately, authorizing the local Sheriff’s Office to seize any registered weapons. Afterward, the owner of those guns would have the opportunity to appeal
“Just like a preliminary injunction, there would then be a period of time, it could be ten days or fifteen days, an evidentiary hearing where the owner of the guns would come in and get to appeal. And then the question for the judge would be, okay, do you give the guns back or do you keep them out of their hands for some period of time,” O’Grady said.
The extreme protective order would also allow judges to review medical records or to require additional conditions before deciding how long firearms would remain in state custody.
“You can also deal with mental instability – okay, ‘you can have them back if you go to counseling,’ – or dementia, the judge can review medical records,” O’Grady said.
“I might point out that In my former state, Florida, which was of course under the shock of the high school shooting down there, over 60 of their legislators – who are AAA NRA-rated legislators – all voted for it.”
-CouncilMan O’Grady
Guns rights advocates, most notably the NRA, have historically opposed Red Flag laws. After Florida’s House of Representatives passed the state’s recent gun control bill into law, which allows seizures of firearms for up to a year, that seems to be changing – a little.
“I might point out that in my former state, Florida, which of was course under the shock of the high school shooting down there, over 60 of their legislators – who are AAA NRA-rated legislators – all voted for it,” O’Grady, pointing out that many members of the state’s conservative majority voted for the measure.
The NRA released a video in March, in which Executive Director Chris W. Cox supported risk protection orders, another term for Red Flag injunctions. Within days, however, the NRA issued clarifying statements saying it did not support the Red Flag laws of California or Washington state because they did not offer due-process protection for gun owners or set high enough legal standards for defining when a person is considered dangerous.
A common sticking point for the opposition to Red Flag laws is the fear injunctions will be misused as means of retaliation. O’Grady’s request for a Red Flag statute doesn’t offer specifics, but he said preventing retaliation is an essential part of laws in other states.
“A lot of these laws have provisions for no retaliation and – if it is retaliation – then they turn the criminal aspect of the statute on the complainant,” O’Grady said.
City Council vote
The resolution, which City Council will vote on this Tuesday, July 17, does provide language for a proposed statute, only the general outline.
“I haven’t asked for a particular statute… what I’m asking for is that the legislature take this up and consider it,” O’Grady said. ”I think our legislature needs to take this up and discuss it sensibly, realistically, dealing with the reality of how many millions of guns there are on the streets today. There has to be a way to protect innocent people from those who would use them improperly.”
Wilmington City Council – Red Flag Resolution – Port City Daily by Ben Schachtman on Scribd
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