After mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump talked up his support of background checks and red flag legislation, which creates a framework for temporarily taking guns away from those considered a danger to themselves and others. A Colorado version of the latter was signed into law earlier this year, prompting backlash from pro-Second Amendment forces and recall efforts aimed at the likes of Representative Tom Sullivan, whose son, Alex Sullivan, was killed in the July 20, 2012, Aurora theater shooting.
Many political observers expected Trump's enthusiasm for such measures to wane prior to Congress reconvening today, September 9, and after another massacre — this one in Odessa, Texas — they did, at least as far as background checks were involved. But powerful GOP senator Lindsey Graham is still working on a version of a red flag bill that may be acceptable to the National Rifle Association types to which Trump has typically kowtowed on firearms issues. And if the proposal (not to be confused with one from House Democrats that would give states incentives to enact their own red flag laws) actually gains traction, a lot of the credit — or blame, depending on your point of view — will go to David Kopel, research director for Denver's Independence Institute, a libertarian think tank.
Over the past few weeks, Kopel has been working on the subject with Graham's staff and that of Senator Richard Blumenthal, a Democrat from Connecticut. After the February 2018 school shooting in Parkland, Florida, Graham and Blumenthal introduced a red flag proposal that flopped. But after the El Paso and Dayton massacres, the pair announced that they would be trying again, and Kopel confirms he's among the folks who have been consulted.
According to him, "Senator Graham's proposal was to provide funding for states that adopt red flag rules. My point of view is that the funding should encourage best practices and not subsidize the worst."
No one has ever accused Kopel of being a gun abolitionist. Take "Will You Be Safer if Guns Are Banned?," an essay he co-wrote with Jarret Wollstein. The answer to the piece's title question is a passionate "no," as evidenced by its concluding paragraph: "The bitter irony of gun prohibition is that laws intended to make America safe could spark the bloodiest violence in our history. Gun prohibition is not good for you, your family or America."
Nonetheless, Kopel says, "I support red flag laws in principle. But I think it's essential that they have strong due-process protections."
Kopel articulated this opinion before the U.S. Senate Judiciary Committee during a March hearing on mental health and gun legislation, as seen in the following video. His remarks begin at the 31:36 mark; click to access his written testimony.
As for Colorado's red flag bill, which is scheduled to go into effect on January 1, 2020, Kopel didn't support it because, in his view, "it came up pretty short."
His objections begin with "who can initiate a gun-confiscation petition," he begins. "Connecticut passed the original red flag law in 1999, and it said the petition could only be initiated by two law enforcement officers or the equivalent — what we would call a district attorney — based on their own independent investigation. But in Colorado and some other states, in contrast, a confiscation petition can be initiated by what gets called in the press 'family members.' But that's not true. They don't have to be family members. They can even include former dating partners, and that's much too broad."
In his view, "I think anybody should be able to express their concerns to law enforcement officers. But it should be law enforcement officers only who should initiate a petition."
Another of Kopel's objections involves the procedure by which gun confiscation will take place in Colorado. "In many states, the court doesn't have to go on an ex parte basis, meaning that there's only one party there, and the other party isn't there. But in Colorado, it's automatically ex parte."
The ability of the state to confiscate an individual's guns without the person being able to state why that shouldn't happen was atop the list of reasons Representative and House Minority Leader Patrick Neville cited for opposing Colorado's red flag bill. "As written, House Bill 1177 is fundamentally unfair," he wrote in a statement to Westword last February. "People are robbed of their constitutional rights without getting a chance even to be present when accused at a hearing in front of a judge."
In contrast, Nancy VanDeMark, then the interim president and CEO of Mental Health Colorado, argued that letting suicidal individuals know in advance that their firearms might be confiscated can actually trigger tragedy. "What we see is that folks who are at high risk of suicide often have contact with the system before they attempt or complete suicide," she told us earlier this year. "So we want to maximize first contact — because these kinds of efforts can help prevent suicide, as well as crimes and other kinds of involvement with law enforcement and the public."
For his part, Kopel favors a middle ground. "In some states, a petitioner can go into court and say, 'Give me an order against this guy,' and afterward, the court can say, 'I've heard your side of the story. What's the other guy say?' And if he's not there, you have to have a good reason that you didn't give this guy a notice and opportunity to be heard at this hearing — and in some cases, the petitioner for the order will be able to meet this standard."
The likelihood of a certain person trying to die by suicide should he learn that his guns may be taken from him strikes Kopel as "a really good reason for confiscating them. But the Colorado law doesn't require any reason at all — not even a weak reason. Ex parte hearings are supposed to be the exception, not the rule, because in-person testimony is essential for a judge to be able to observe a witness's credibility and demeanor."
Granted, the Colorado red flag law calls for a second hearing within no more than fourteen days after the first one, and in that case, the target of the petition is allowed to be present. However, Kopel points out that "Colorado lets the accuser submit an affidavit and never even appear in a hearing — either the first hearing or the second, two-party hearing. So the person who's being accused can literally never have an opportunity to cross-examine the accuser. I think that's absolutely wrong."
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Red flag data from Florida and Indiana, two other states with such laws, shows that ex parte confiscation orders are reversed about 30 percent of the time, Kopel calculates. If a similar number of turnabouts take place in Colorado, that means three out of every ten people will get their guns back in two weeks or less — and to those who'd suggest this isn't much of a burden, he counters, "That depends on the individual circumstances. For some guy who has two hunting guns and it's not hunting season and never goes to target practice, maybe that's true. But maybe the person lives in a rough neighborhood or has a stalker. In that case, it could be a big problem."
The number of firearms confiscated in states with red flag laws is growing. The Middletown Press, a Connecticut newspaper, reports that thousands of guns have been confiscated from more than 1,890 people since the law's passage two decades ago, with 260 giving up their firearms in 2018 and 117 receiving so-called "risk warrants" in the first six months of this year. And public-radio outlet WFSU divulges that as of July 24, Florida had 1,697 active risk-protection orders even though the law was only passed in March 2018.
Of course, a federal red flag bill will be dead on arrival unless U.S. Senate Majority Leader Mitch McConnell allows it to move forward. Despite McConnell's history of squelching gun-control legislation, Kopel thinks there's a reasonably good chance of the Graham-Blumenthal offering being given a chance. After all, there's considerable momentum behind the concept — see a recent University of California, Davis study that suggests such laws might help prevent mass shootings. Moreover, right-wing outfits are increasingly advocating for red flag laws, as witnessed by a Heritage Foundation spokesperson's positive remarks during an August 20 NPR piece. No wonder Kopel believes that if the legislation "gets to Trump's desk, it's going to be signed."
This is a bold prediction — unless passing a federal red flag law is a Republican strategy to deflect attention away from calls for stricter, more sweeping firearms-control measures such as universal background checks. In that case, the president may already be looking for his pen.