Can a judge sign an order allowing police to seize your guns even if you do not break a single law? In recent years, there has been a nationwide push for “extreme risk protective orders” or “red flag” laws specifically designed to remove firearms from people accused of engaging in conduct or making statements that others may deem “dangerous.” You’ve probably heard about them in the news recently; but what are they? What do you need to know about them, and how could they be used to take away your Second Amendment rights? Let’s look at the history of these laws and how Georgia uniquely falls on this hotly debated area.
The History of Red Flag Laws
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first one of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them. However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose to do.
Many of the states with red flag laws currently on the books allow for an enforceable court order that prevents the person from owning, purchasing, possessing, or transporting firearms and ammunition for a specified period of time. Several jurisdictions also allow the extension of these orders if the affected individual is still “deemed a threat.”
For example, under California’s red flag law (called a “gun violence restraining order”), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition initially for between one and five years, with the potential for the order to be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person may ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that the person still poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
A Californian subject to a red flag order may petition the court only once per year and ask for it to be lifted; which could entail another costly and time-consuming legal proceeding.
As of the publish date of this article, 19 states and the District of Columbia have enacted versions of red flag laws. How do things stand for Georgia?
Red Flag Laws in Georgia
There are currently no red flag or extreme risk protection order statutes in the State of Georgia. While family violence protective orders and some stalking orders grant judges the authority to restrict possession of firearms for those who are subject to an order of no contact, no “red flag” type of legislation exists here.
Potential Future Legislation in Georgia
HB 309, the “Georgia Red Flag Protective Order Act,” was first introduced in the House on February 4, 2021. It would create a system for risk protection orders that would allow a law enforcement officer or family member of a targeted individual to seek a risk protection order against that individual from a judge without the target’s knowledge (what is known as an ex parte order). If granted, the ex parte order would restrict the target of the order from purchasing, receiving, or possessing firearms or ammunition. A hearing would then be set no later than 14 days after the date of the ex parte order that would allow the target of the order to be heard on whether their rights should be restricted. If the court finds by clear and convincing evidence the target poses a significant danger to themselves or others by possessing a firearm, a judge could then grant a subsequent risk protection order that would restrict possession of firearms and ammunition by the targeted individual for up to 12 months.
Though HB 309 was offered in February, it is no longer viable in this legislative session. HB 309 missed Crossover Day—the day a bill must pass out of one legislative chamber in order to be considered by the other chamber. Since the bill failed to pass out of the House by Crossover Day, there is no danger of it becoming law in the 2021 session. However, it remains in place for the next legislative session in 2022. If HB 309 fails to gain traction and cross over in 2022, it will die in the House.
Even if HB 309 fails to pass next year, it signifies a growing desire among Georgia’s increasingly progressive legislature to impact our rights to possess firearms—some might say without the protections of Due Process. For that reason, it’s important everyone stay informed and involved in the fight to protect your gun rights here in Georgia.
If you have questions about red flag laws or any other gun-related legislation, call U.S. LawShield and ask to speak to your Independent Program Attorney.
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