According to a recent editorial by an anti-gun spokesman, Florida’s version of a “red flag” law—also known as an Extreme Risk Protection Order (ERPO) law—is a “success” simply because it is being used. By that standard, perhaps he would consider Constitutional Carry laws a similar success because millions of Americans lawfully carry in the 29 states where such laws exist.
We’ll just have to wait for that editorial, but we won’t hold our breath.
The author, Christopher Carita, is a retired law enforcement officer who serves as an “advisor” to the anti-gun organization called 97Percent—a name derived from a discredited poll that tried to claim that 97% of gun owners support so-called “universal background checks.” Besides working in law enforcement, Carita was also indoctrinated at the Johns Hopkins Bloomberg (yes, that Bloomberg) School of Public Health, where he was a Bloomberg American Health Initiative Fellow.
That “Constitutional Carry Success” editorial is seeming less likely.
The Florida “red flag” law, which Carita refers to as a Risk Protection Order law, is a little different than what many anti-gun states have implemented. Most “red flag” laws allow virtually anyone to allege a gun owner represents a danger to themselves or other, which could compel the removal of the individual’s firearms as a sufficient resolution to any perceived risk of threat or harm. Most of these laws allow for the suspension of due process, including the right of the accused to face their accuser.
In Florida, however, petitioning for an ERPO must be instigated by law enforcement. While that does not negate the threat of the law being abused and the rights of law-abiding gun owners being infringed upon, some argue that it is a type of safeguard.
As for the “success” touted by Carita, the only “evidence” of this “success” he mentions is that “[n]early 4,700 RPO petitions were filed in the first two years” of the law. He also mentions that, after the state trained officers in working with the law, “RPO filings increased roughly 58%.”
But the success of a law should not just be measured by how often police officers try to enforce it. Laws are intended to spell out what behavior is prohibited, with the actual goal being that people will simply obey the law and refrain from doing that which is prohibited. Police, after all, are not expected to be everywhere at all times to thwart the commission of a crime.
Probably the most famous motto of law enforcement, adopted by a number of departments, is, “To protect and serve.” The best measure of a law’s success, in other words, is whether it protects the public. Capturing individuals who actually commit crimes so that they can be appropriately punished is probably the best way to “protect” the public.
The “serve” in the saying, it should be noted, is not intended to mean serving orders that could lead to the loss of a constitutionally protected right because someone believes you might do something illegal at some unspecified future time.
So, does Florida’s ERPO law protect the public? To figure that out, one would first need to understand the intent of ERPOs—at least, the claimed intent. Some argue they are intended to disarm individuals who exhibit signs—often some sort of mental distress—that they may be inclined to commit violence in the near future.
97Percent specifically says the goal of ERPOs is to ensure “those at high risk of committing violence…cannot access a gun.” Note that they don’t say they want to eliminate, or at least minimize, the risk of the individual “committing violence.” They would apparently just prefer they not commit violence with a legally possessed gun.
But as we’ve sadly noted time and time again, the primary defect of “red flag”/ERPO laws is the underlying philosophy that compelling removal of a person’s own firearms is a sufficient resolution of any risk or threat of harm.
Furthermore, because someone was disarmed and they did not commit an act of violence is also not proof the law worked. While the individual’s firearms may have been removed under the law, the individual may very well have never been remotely in danger of committing a crime of any sort; let alone a violent one involving a firearm.
After all, we do not have the “precrime” police capabilities portrayed in the Tom Cruise/Steven Speilberg movie “Minority Report,” where three psychics prevent homicides before they happen by being able to predict them.
Taking it a step further, if someone is in such a mental health crisis that a government operative determines they should have their firearms seized, why simply leave them to continue to operate freely in that apparently dangerous state of mental health? If the individual was truly in danger of committing an act of violence with a gun, why would he or she not then simply find another means to do it, as has actually happened?
Returning to the idea that the law in Florida has been a “success,” one would think that there would be plenty of actual evidence available to indicate so, considering it has been on the books for several years. Something beyond, that is, the frequency of its use. A significant drop in suicide or homicide rates in the areas where the ERPOs have been used the most, for example. But Carita offers nothing to show any such correlation.
Could this be because the actual goal of ERPOs is to simply disarm individuals, either temporarily or permanently? One of 97Percent’s other stated goals is to lower the threshold for losing the right to arms, which would lead to disarming more individuals.
The group also wishes to see all states implement a requirement for all gun owners to obtain a permit before lawfully possessing a firearm and wants to impose state-based background checks (in addition to the federal one) on all firearm purchases. Imposing more government restrictions on gun owners and potential gun owners is a standard tactic of anti-gun proponents to dissuade people from obtaining firearms.
Even if Carita could point to data indicating Florida’s ERPO law might be linked to a decline in violence—something he has not done—would that justify a law that would seem to involve a number of violations of constitutional protections? Would he also support, for example, a government agency reviewing his editorials before being published to ensure he does not write anything that could be construed as criminally libelous? Yes, libel is generally a civil offense, but there are some jurisdictions that have made it a criminal offense. Is pre-publication review OK, just to be sure no law is broken, or would Carita rightfully object under First Amendment principles?
NRA-ILA will continue to raise objections to any laws that infringe upon our rights protected under the Second Amendment, especially when they deprive law-abiding citizens of their right to arms or do so by violating other protections, like the right to due process. And if others raise claims about the purported effectiveness of red flag firearm seizure laws, we’ll report on them, too.
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