Can a judge sign an order allowing police to seize your guns without you even breaking 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 Kansas 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 Kansas?
Red Flag Laws in Kansas
Kansas does not currently have any red flag laws. Indeed, Kansas already has laws on the books and existing tools that reduce the likelihood of any new “red flag” framework. Kansas law enforcement may use these tools to combat potential violence by persons who are determined mentally ill. The Kansas Care and Treatment Act for Mentally Ill Persons allows any Kansas law enforcement officer who has a reasonable belief that a person is mentally ill and, due to such mental illness, is likely to cause harm to self or others if allowed to remain at liberty, to take the person into custody without a warrant. The apprehended individual will then be taken to a mental health facility to be examined by mental health professionals within 17 hours of their arrival. If it is determined that the individual is mentally incompetent and held at the facility, the apprehending officer must file a Care and Treatment Petition by the close of business of the first day that the district court is open for business or shall release the person. In addition to filing a Care and Treatment Petition, the officer can seek an ex parte emergency custody order to be issued. Ex parte generally means that the subject of the order is not notified and has no opportunity to contest the order.
While this procedure can seem heavy-handed, it is a real-world, practical solution to addressing any individual suffering from mental illness as it does not mandate the seizure of firearms, something that is unnecessary since the individual is receiving care from a mental health institution. This intrusion pales in comparison to the full turnover of all firearms proposed in “extreme risk protection order” bills that have been introduced and passed in other states.
Red flag legislation has been proposed in the Kansas Legislature for several sessions. Although hearings were conducted, these laws never made their way out of committee and there are currently no red flag laws in Kansas. The future may hold a different story, though.
Potential Future Legislation in Kansas
The 2021 Kansas Legislative Session currently features four bills in the Kansas House of Representatives (HB 2095, HB 2222, HB 2251, and HB 2410) and one proposed bill in the Kansas Senate (SB 192). While all five of these bills contain some variation of a red flag law proposal, SB 192 and HB 2251 are substantially the same.
HB 2095 would allow courts to prohibit possession of a firearm in a temporary custody order, pursuant to the Care and Treatment Act for mentally ill persons. The clear peril to Kansans is the execution of such an ex parte order by the court, which is issued without any notice to or response by the individual. The court must schedule a review of such an order by the close of business on the second day the district court is open for business after the filing of the request for review.
HB 2222 would require the Kansas Bureau of Investigation to establish a Kansas voluntary do-not-sell firearms list to prevent the purchase of firearms by any person who voluntarily registers to be placed on the list. The proposed act provides that one can request removal from the list, but removal will not occur until 21 days after the Kansas Bureau of Investigation has received such person’s application for removal. Further, there are no provisions that describe how or what the KBI must consider in the determination to remove someone from the list.
The red flag proposal contained in HB 2251 would require the relinquishment of firearms and any issued permits or licenses pursuant to certain qualifying protection orders, and court orders related to domestic violence, within 24 hours after being served notice of such an order and force a person to prove and attest to the court that they have no more firearms. The prohibition from possessing firearms under a qualified protective order or other court order shall not exceed 12 months but may be extended.
Augmenting red flag efforts, HB 2410 would create the Gun Violence Restraining Order Act, authorizing certain individuals with a close relationship to a targeted person to file an action with the district court to seek issuance of court orders prohibiting the purchase or possession of firearms by that targeted person. Under this bill, the subject of the order would only have 14 days to file a motion to modify or rescind the order.
Based on the voting histories of Kansas State Representatives and Senators, it presently appears unlikely that the proposed House or Senate bills related to red flag orders will become law. However, it’s important for responsible Kansas gun owners to keep an eye on these bills (and their elected representatives) until this session concludes.
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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