Update: Red Flag Laws… Who Has the Right to Take Away Your Guns? | Texas

Jun 18 2021

Original article WRITTEN FOR US LAW SHIELD. Reposted with permission of US LAW SHIELD


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 Texas 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 Texas?

Red Flag Laws in Texas

Red flag legislation was proposed in the Texas Legislature in the 2017 and 2019 sessions. Though hearings were conducted, these laws never made their way out of committee.

The 2021 Texas Legislative Session currently features four proposed bills in the Texas House of Representatives (HB 164, HB 395, HB 2878, and HB 3977) and four in the Texas Senate (SB 84, SB 110, SB 1511, and SB 1742) that contain some variation of a red flag law. Essentially, they seek to create a law allowing a person to report a gun owner to authorities for dangerous behavior or conduct, which would then begin an immediate legal process resulting in the confiscation of all firearms owned or possessed by the gun owner, as well as their License to Carry a Handgun (if applicable). These proposed bills include purposely convoluted legalese to describe a courtroom process by which the gun owner could, theoretically, challenge the red flag order and attempt to have their firearms returned.

It’s not all bad news at the state capitol. In contrast to the above-listed red flag legislation are HB 336 and SB 548, which seek to prohibit the state, counties, and municipalities (cities) from adopting or enforcing red flag laws or accepting federal grant funds to do the same.

What Does This Mean for Texas?

Unfortunately, these seemingly well-intentioned laws about mental health have become ripe for government overreach. Will they go into effect in Texas anytime soon?

Because of the current political party makeup of Texas state representatives, senators, and Governor Abbott, it is unlikely the proposed House or Senate bills promoting red flag orders will become law. In addition, the anti-red flag bills have yet to make it out of committee. It’s important for responsible Texas gun owners to keep an eye on these bills (and their elected representatives) until this session concludes on May 31, 2021. Additionally, Texas already has laws on the books and existing tools that further reduce the likelihood of a new “red flag” framework.

One of the tools at law enforcement’s disposal is Texas Health and Safety Code § 573.001. Unlike the clearly targeted “gun grabs” proposed in multiple states, this statute focuses on the health and safety issues surrounding a potentially mentally ill person. This law allows a peace officer to take someone into custody if the officer has reason to believe and does believe that the person has a mental illness, and because of that mental illness, is a substantial risk to the person or to others. The apprehended individual will be taken to a mental health facility to be examined by mental health professionals and provided a hearing before a judge or magistrate.

While a portion of this law allows a peace officer to seize a firearm found in the possession of a person detained due to suspected mental illness or risk of injury, the remainder of the statute provides several protections for gun owners, and it requires law enforcement to follow the strict framework found in Texas Code of Criminal Procedure Article 18.191. This process requires law enforcement agencies to provide written notice of the procedure for returning a firearm within 15 days. It also allows any person found to have a mental disability the right to petition the court for relief from that disability for the purpose of retaining their Second Amendment rights. Finally, even if the person is determined to be mentally incompetent, the guns are required to be returned to a designee (typically a friend or family member) as long as the designee can legally possess a firearm. An unclaimed firearm that was seized from a person taken into custody under Section 573.001 of the Health and Safety Code may not be destroyed or forfeited to the state.

This framework does not mandate the seizure of every firearm the person owns, merely those in their immediate possession at the time of detention. This is a far cry from the full turnover of all firearms proposed in these “extreme protection order” bills.

Any government overreach into the Second Amendment is a problem, but Texas law enforcement officers who are faced with time-sensitive life-or-death crises have this seldom-used process to disarm the person at the time of detention.

If you have questions about red flag laws or any other gun-related legislation, call Texas LawShield and ask to speak to your Independent Program Attorney.

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