Besides red flag laws, there are yellow flag laws that not as many people know about. What are they, and what are the differences between the two?
Red Flag Laws
Red flag laws typically let anyone make a complaint with no check and balance system to ensure the allegations are true. This has the potential to be used for abusive or vindictive reasons. They go into effect without the person being accused knowing or even a criminal act having taken place. After receiving a complaint, a judge may issue a confiscation order, and the police can show up to take away the firearms.
The accused person doesn’t know who made the report and hasn’t met the person making the accusation. Plus, they haven’t necessarily been charged with a crime. The person has to go to court later to show they’re not a threat and deserve to have their Second Amendment rights restored.
Next, they have to ask the court to return their property. This route overlooks several amendments, including the Second, Fourth, Fifth, Sixth, and Fourteenth.
- Second Amendment: the right to keep and bear arms.
- Fourth Amendment: protects people from unreasonable searches and seizures by the government.
- Fifth Amendment: the requirement that the government cannot deprive a person of their freedom or property without going through the court system.
- Sixth Amendment: A person accused of a crime has the right to confront a witness against him or her in a criminal action.
- Fourteenth Amendment: It guarantees “due process of law” before the government may deprive someone of “life, liberty, or property.”
No due process, no facing your accuser, no charges, nothing, just the accusation of being a threat by someone else.
Authorities also put a red flag order into the National Instant Criminal Background Check System (NICS). The federal system is what a licensed gun dealer (FFL) puts the information into when you buy a gun. When you purchase a firearm, you provide your personal information on ATF Form 4473.
Extreme Risk Protection Order
An Extreme Risk Protection Order (ERPO) is the name you will frequently use when someone refers to a court order. An ERPO is what prohibits someone from purchasing or possessing guns and requires the person to surrender any guns they already own or have.
Yellow Flag Laws
The yellow flag laws are a little different. They still see the importance of keeping guns out of the hands of criminals and other dangerous people. However, they do it more constitutionally. Law enforcement can only make the initial complaint.
Anyone can report suspicious activity to authorities, even concerned family members, but only the police can submit the application. The accused person may be placed in protective custody, which is different from arrest because they do not take them to jail. Instead, they are examined at a medical facility. If a medical professional determines a risk of imminent harm, the court issues a temporary confiscation order, or ERPO.
The complainant cannot have guns or other dangerous weapons while the order is in force. The accused next goes to court, where the judge must evaluate if the complaint is a continuing threat. If so, they will lose the legal right to own firearms. They will get his Second Amendment rights back if they are not considered a threat.
New York Complicated Their Background Process In September
As of September, New York bypassed the National Instant Criminal Background Checks (NICS) system and is now the point of contact state, meaning the New York State Police will process firearm applications. The New York State Police will contact the FBI to figure out if someone can not only buy a gun but also if they are allowed to buy ammunition in New York State. This adds another layer of bureaucracy that can complicate matters and could let someone fall through the cracks.
Maine Mass Shooting and the New York State Police
The New York State Police brought Robert Card to the Keller Army Community Hospital at West Point for his medical evaluation. It appears that they didn’t tell anyone at the State Police Bureau of Criminal Investigation, which is the agency usually in charge of handling emergency orders. They could have triggered the New York red flag law at the time.
The State of New York has a twenty-page “Extreme Risk Protection Order Model Policy” that law enforcement can use as a reference.
Senator Susan Collins from Maine said, “It certainly seems that, on the basis of the facts that we have, that the yellow flag should have been triggered. ”
“If, in fact, the suspect was hospitalized for two weeks for mental illness, that should have triggered the yellow flag law, and he should have been separated from his weapons. I’m sure, after the fact, that’s going to be looked at very closely.”
In the case of the mass shooting in Maine, two states were involved, and both may have failed to act under existing laws.
Red flag laws don’t follow due process and overlook rights provided by the US Constitution. Once again, if we don’t enforce the laws on the books, what good will it do to pass more laws?