Red Flag Laws and Predictive Policing

Red flag laws allow law enforcement personnel or family members to petition a judge to issue a restraining order to restrict a person’s access to firearms without that person being present. They require a full hearing to be scheduled quickly, to allow the gun owner to respond. A longer order can be issued during the full hearing if there is enough evidence that the person is dangerous.

Six states have red flag laws, and they are being considered in another 22 states. There is bipartisan support in Congress for federal red flag laws. Regardless of how one feels about the Second Amendment giving citizens the right to bear arms, red flag laws set a dangerous precedent. They allow government to take away people’s rights even when no one has violated any laws.

After shootings have occurred, investigators have been able to look back and discover actions the shooter undertook and words the shooter said that sound like red flags, indicating that person could be a danger to others. The idea behind red flag laws is that if people see those red flags and act to take firearms away from potentially dangerous individuals, shootings could be prevented.

Although we may be alarmed by things people say, citizens also have First Amendment rights to free speech, and we are on shaky ground if we say that people exercising their First Amendment rights should lose their Second Amendment rights. Lots of people say alarming things, and few of them actually engage in violent behavior.

Red flag laws are a form of predictive policing. Their intent is to intervene before a crime is committed, based on evidence that suggests a person fits the profile of a criminal. If a person fits the profile of people who have committed shootings in the past, the red flags are up and law enforcement moves in to prevent that person from criminal activity, even though the person has done nothing illegal.

Similar types of law enforcement occur for other suspected crimes. Civil asset forfeiture allows police to seize assets they suspect were used in criminal activity, even though nobody has been charged with a crime. In the case of civil asset forfeiture, police suspect a crime has already occurred, whereas with red flag laws they just suspect a crime might occur in the future. But in both cases, nobody is accused of a crime. And in both cases, it is up to the accused to prove their innocence.

Red flag laws go a step beyond civil asset forfeiture, though, because civil asset forfeiture takes place when law enforcement personnel think a crime may have taken place, whereas red flag laws apply to cases where no crime has occurred.

Many people think it is a good idea to take guns away from people who are likely to commit crimes with them. But to do so means taking constitutionally guaranteed rights away from people who have violated no laws. This sets a dangerous precedent by giving government the ability to take away the rights of innocent people, just because somebody in government believes they may commit crimes in the future.

Many people will think “I haven’t done anything to make people think I’ll be a mass shooter, so I don’t have to worry that the government will seize my guns.” And people who don’t own guns have even more reason to think these red flag laws will not violate their rights; they will only be made safer because more guns can be seized before they can do harm.

Once the precedent is established that government can take away people’s rights before they have committed any crimes, everybody is potentially vulnerable. Making large cash deposits into your bank account? You might be a drug dealer or a tax evader. Buying gold? Could be trying to hide your cash transactions. Buying Bitcoin? No reason to do that except to avoid government scrutiny. Do you use more electricity than your neighbors? You might be hiding a marijuana grow house. Have lots of Islamic friends on Facebook? Probably a terrorist.

Don’t think that just because you don’t own guns, or you don’t have any red flags in your background, that red flag laws are no threat to you. Remember the well-known poem by German pastor Martin Niemöller:

First they came for the socialists, and I did not speak out—
Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—
Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Red flag laws are a threat to everybody’s rights because they give the government the ability to take away the constitutional rights of people who have violated no laws. You could be next.

Randall G. Holcombe is a Senior Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
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