It is now the law of the land, signed last Saturday by President Biden — the “Bipartisan Safer Communities Act.” Hidden deep within one of its most controversial provisions, dealing with Extreme Risk Protection Orders (ERPOs), more commonly known as “Red Flag Laws,” is language that provides a clever way for judges to ignore the “constitutional rights” that purport to guard against abusing these problematic provisions.
The bill itself — S.2938 — is 81 pages long; somewhat short by today’s standards, when bills running to hundreds of pages are not uncommon.
It is not until a reader is well into the text of the bill that the “Firearms” provisions are laid out in any detail, and this is where the real problem becomes clear — clear, that is, if you read carefully the provisions regarding ERPOs.
As is standard operating procedure for federal legislation, S.2938 does not directly mandate that states or local governments implement red flag laws. It does so by offering states money to do the federal government’s bidding. Uncle Sam knows that state and local governments are always eager to receive federal largesse, even with the inevitable strings attached.
In this instance, the “bipartisan” legislation (14 House Republicans joined with 15 of their colleagues in the Senate) provides that “Byrne” grants, which have been a vehicle to shovel money to states for criminal justice programs since 1988, can be used to establish “extreme risk protection order programs.” This authorization is linked directly to a list of “due process rights” that attach to such grants. This laudable language is expansive, and warns that no such program can “violat[e] or infring[e] the Constitution of the United States, including but not limited to the Bill of Rights . . . ”
A quick review of this language would lead the casual reader or skeptic to heave a sigh of relief. The recital of constitutional rights, including those enumerated in the Bill of Rights, would seem to provide a robust defense against abuses of the ERPO process, sufficient to prevent an individual’s firearms from being confiscated without any opportunity first to be heard and able to present evidence against such a drastic and otherwise unconstitutional move. Not so.
Following the listing of explicit constitutional guarantees with which any ERPO established with Byrne grant funds must comply is a possible caveat, sufficiently wide to drive the proverbial “Mack truck” through; a side door by which a judge presented with an application for such a “risk prevention” order can justify ignoring them altogether, at least temporarily.
Here’s the potential catch: all the measures enumerated and designed explicitly to “prevent any violation of constitutional rights” are available only “at the appropriate phase” or “phases” of such proceedings. One does not have to be a legal eagle or rocket scientist to see where this judicial “safety valve” can lead.
Thus, a police officer or other individual applying for a red flag order to seize an individual’s firearms because someone claims the person is an immediate risk of harming his- or herself or someone else, might very well claim that “time is of the essence.” In such event, a judge predisposed to use such power (or afraid not to), can hang his judicial hat on the new law’s “appropriate phase” language and deem the situation of sufficient urgency that it would not be “appropriate” to delay signing the firearms seizure order at the initial “phase.”
In other words, notice to the gun owner that would allow him opportunity to contest having his guns seized could be delayed until a more “appropriate phase” of the proceedings; that is, after the firearms have been “safely” seized by law enforcement.
Whether any of the 29 Republican legislators who voted for S. 2938 read this deeply troubling language, or whether they did so but failed to understand it or simply ignored it, is unknown. Regardless, there now is a provision in U.S. law allowing states to use taxpayer money to implement measures to unilaterally confiscate a law-abiding citizen’s firearms, without even affording him guarantees against such action to which he would be entitled in any other context.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.