“… the partisan divide on red flag laws is not as strong as it is on many other gun-related issues.”
About a year ago, Shea wrote about red flag laws, sometimes called gun violence restraining orders or extreme risk protection orders. More than a dozen states have such laws, and several bills are pending in the General Assembly that would enact a red flag law here. But are red flag laws constitutional?
What are red flag laws? Most red flag laws allow a family member to petition to have guns removed from a respondent’s control when the petitioner believes that the respondent’s gun possession poses a danger to the respondent or to others. A few states only allow law enforcement officers to initiate the process, and a few states allow either a family member or an officer to do so. The process is somewhat similar to the process for obtaining a DVPO, in that there is typically an ex parte stage, where a petitioner may obtain a temporary order that may last a week or two, and an adversarial stage, which may result in the imposition of a final order that typically lasts a year. Final orders may be renewed if appropriate or terminated early if the respondent can demonstrate that the danger has passed. The standard of proof varies by state and by stage of the proceeding, with probable cause the most common standard at the ex parte stage and clear and convincing evidence the most common at the final order stage.
Status in North Carolina. The two bills in the General Assembly that would enact red flag laws are H454 and S565. They are similar though not identical. Both would allow a family or household member or a law enforcement officer to seek an extreme risk protection order. Both would allow a court to issue a temporary ex parte order, and both would allow a final order to last up to a year. Under both bills, the standard for issuing a final order would be a preponderance of the evidence showing that the respondent poses “a danger of causing physical harm to self or others by having in his or her custody a firearm.”
by Jeff Welty
