General Question about Red Flag Laws

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Tennessee Gentleman

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So I notice two threads about this from different states. I don't want to repeat the threads but wanted input on the issue itself.

I wanted to ask the forum about whether a mechanism exists or needs to be created to allow close friends or family members to refer crazy folk with guns to the mental health system involuntarily that is not already in place.

I have read about several mass shootings (like the Stoneman HS one) where there were warning signs all over the place and yet nothing was done to preempt the shooter when family members knew they were nuts and dangerous. We had a shooting here in TN at a Waffle House where Illinois took the kids guns but then gave them back to the dad and HE gave them to the kid who he KNEW was coo-coo for cocoa puffs.

So, does a workable mechanism exist in most states to separate crazy folk from guns that has due process and yet is not so cumbersome that you have to hire a lawyer to do it.

I am ignorant on this part but if I had a crazy relative that had guns and I feared they may harm themselves of others how would I proceed other than calling my good friend who happens to be a police chief. Of course I could ask him and might at our next Rotary meeting.

Is this a problem that needs some fixing with something not Bloombergian or just another gun grab?
 
Florida has something called the Baker Act
https://www.cchrflorida.org/questio...ida-involuntary-commitment-law-the-baker-act/

http://www.dcf.state.fl.us/programs/samh/mentalhealth/laws/BakerActManual.pdf

https://en.wikipedia.org/wiki/Florida_Mental_Health_Act

The Florida Mental Health Act of 1971 (Florida Statute 394.451-394.47891[1] [2009 rev.]), commonly known as the "Baker Act," allows the involuntary institutionalization and examination of an individual.

The Baker Act allows for involuntary examination (what some call emergency or involuntary commitment). It can be initiated by judges, law enforcement officials, physicians, or mental health professionals. There must be evidence that the person:

possibly has a mental illness (as defined in the Baker Act).
is in danger of becoming a harm to self, harm to others, or is self neglectful (as defined in the Baker Act).

Examinations may last up to 72 hours after a person is deemed medically stable and occur in over 100 Florida Department of Children and Families-designated receiving facilities statewide.[2]

There are many possible outcomes following examination of the patient. This includes the release of the individual to the community (or other community placement), a petition for involuntary inpatient placement (what some call civil commitment), involuntary outpatient placement (what some call outpatient commitment or assisted treatment orders), or voluntary treatment (if the person is competent to consent to voluntary treatment and consents to voluntary treatment). The involuntary outpatient placement language in the Baker Act took effect as part of the Baker Act reform in 2005.

The legislation was nicknamed "Baker Act" after Florida Democratic state representative from Miami, Maxine Baker,[3] who served from 1963 to 1972. She had a strong interest in mental health issues, served as chair of the House Committee on Mental Health, and was the sponsor of the bill.

The nickname has led to the term "Baker Act" as a transitive verb, and "Baker Acted" as a passive-voice verb, for invoking the Act to force an individual's commitment. Although the Baker Act is a statute only for the state of Florida, use of "Baker Acting" as a verb has become prevalent as a slang term for involuntary commitment in other regions of the United States
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Tennessee Gentleman said:
I wanted to ask the forum about whether a mechanism exists or needs to be created to allow close friends or family members to refer crazy folk with guns to the mental health system involuntarily that is not already in place.
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I know that my state already had such a provision. My aunt was involuntarily committed more than 30 years ago, as a result of intervention by other members of the family. But my state last year adopted one of these "red flag" type laws. The biggest issue with the red flag laws is that they turn the due process concept upside down and inside out. Instead of having a hearing at which both sides get to present their arguments, the typical red flag law (as they are being adopted today) allows a judge to issue a confiscation order based solely on the word of one party. Your "due process" comes after the police have already confiscated your property, at which point you have an opportunity to go before a judge and try to argue for why your property should be returned to you.

That's just wrong. (IMHO)
 
I don't know the laws of every state. I know that my state's laws have remedies for people who are incompetent, or dangerous to themselves and others and include involuntary lock up for examination of those so apparently troubled that they need to be detained for everyone's good immediately.

Dangerously troubled people aren't a new problem. I would be suprised if there were a single state, commonwealth or territory in which the legislature had provided no mechanism for dealing with them.
 
If a person is mentally unstable to be a danger then it should be irrelevant that they have guns. Use existing laws to have them examined and possibly committed. They could use guns, knives, vehicle, bat, screwdriver, machete, hammer, etc. A person should not have guns taken away but then remain free to use gasoline, matches, and various household tools.

Just as in all crime, quit focusing on the guns and focus on the person who is a danger. And realize there is no way to have 100% safety without giving up most liberties. Then you are subject to the whims of an authoritarian state so you lose your safety then, too. Life is a risk, or it should be. Use reasonable prevention but also allow individuals to respond appropriately to mitigate acts of violence.
 
There are two issues. First, while it is certainly possible to commit someone who may be a danger to themselves and others, temporarily or permanently, mental health professionals have been hesitant to act. Two cases that come to mind are the Virginia Tech and Aurora shooters. I believe there are still active civil cases regarding the failure to act by Colorado professionals. Second, there is a fairly high bar for commitment, and there should be. The Gabby Gifford case comes to mind. The shooter's parents were well aware of their son's problems, but he did not meet the standard for commitment. And, failing that, there was no mechanism to take his guns. They tried.

Unfortunately, laws are passed in a crisis environment, and they are often flawed. And, yes people will abuse the law, especially if there is little or no consequence to them. Allegations of sexual assault have been used to great effect in the current climate, and false accusers have little to fear. And I will bet that today someone is trying to get gramma committed to get her money. Certainly, officials in some jurisdictions will look for an "example", however thin, to make some political points. That's the way with the law and the reason an independent judiciary is so critical.

I predict that every state will have some form of "Red Flag" law before the next election. The best course for 2nd Amendment supporters is to engage to put teeth in the penalties for false or misleading reporting.
 
The best course for 2nd Amendment supporters is to engage to put teeth in the penalties for false or misleading reporting.
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Absolutely; if the "accusers" get jail, fines, etc. for some false report because they had a spat (similar to someone crying rape when nothing happened) that might prevent the antis from falsely accusing folks who have guns and are no threat
 
ligonierbill said:
Second, there is a fairly high bar for commitment, and there should be.
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Indeed.

ligonierbill said:
Th And, failing that, there was no mechanism to take his guns.
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And there should not be.

ligonierbill said:
Unfortunately, laws are passed in a crisis environment, and they are often flawed. And, yes people will abuse the law, especially if there is little or no consequence to them. Allegations of sexual assault have been used to great effect in the current climate, and false accusers have little to fear. And I will bet that today someone is trying to get gramma committed to get her money.
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Or trying to have a parent declared incompetent to keep him from spending "their" inheritance. It's not uncommon for applicants to have motives corrupted by self-interest.

While we can predict that any law will be abused, let's be particularly weary of laws that invite abuse, like laws the primary purpose of which is sidestep existing protections against prosecutor and police abuse.

ligonierbill said:
I predict that every state will have some form of "Red Flag" law before the next election. The best course for 2nd Amendment supporters is to engage to put teeth in the penalties for false or misleading reporting.
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I don't believe that can happen. The issue is cast in terms of victim protection and a perceived need for a system more responsive than the current probate and commitment processes. The advocates for these systems see a lack of real petitioner liability as a feature of the law, not a flaw in it.

If you were a respondent in a Red Flag case, you will have had a TRO served on you, and your arms taken by the PD, then appeared at a hearing a couple of weeks later the issue at which is whether you A) are OK to be walking around free like the rest of us, and B) can you get your arms back from the PD. You probably spent money on an attorney.

Are you now going to spend more on an attorney pursuing sanctions against the petitioner? Recall that you just escaped an allegation that you are an aggressive nut.
 
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Colorado has a law that includes involuntary hospitalization for a mental heath issue...but the problem lies in the fact that 'some' who decide to do shootings, 'may' not be described as potentially insane, just really upset at being fired or whatever. Altho I understand a mass shooting is pretty much the definition of insane..or just really angry(Dylan Roof)..

BUT, gotta say there are a lot of issues with 'due process' these days..I just heard a guy on the radio that was mentioning the travesty of people who are charged with a crime, no due process yet(innocent until proven guilty) but w/o the means to make bail, end up staying in jail. Or convicted felons who serve their time but cannot have the right to vote, among others..
 
A felon who lost his right to vote because he was convicted isn't a due process issue categorically. He lost that right and the right to possess an arm when convicted. As a matter of policy, those effects of conviction could change, but he did lose them in a process that offers a trial.

People locked up for contempt or failure to pay court costs is a real problem. I've had judges threaten lock up for making an argument; they know it isn't legal.

If merely being really upset is sufficient basis for stripping you of the rights you hold against the state, the rights aren't yours in any ordinary sense.
 
zukiphile said:
A felon who lost his right to vote because he was convicted isn't a due process issue categorically. He lost that right and the right to possess an arm when convicted. As a matter of policy, those effects of conviction could change, but he did lose them in a process that offers a trial.

People locked up for contempt or failure to pay court costs is a real problem. I've had judges threaten lock up for making an argument; they know it isn't legal.

If merely being really upset is sufficient basis for stripping you of the rights you hold against the state, the rights aren't yours in any ordinary sense.
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Seems like an additional 'penalty' added to the jail time tho..w/o reference as to why it's important to have the guy not be able to vote. How is robbing a bank relatd to voting?

Pretty big grey area there...being 'really upset'...
 
Seems like an additional 'penalty' added to the jail time tho..w/o reference as to why it's important to have the guy not be able to vote. How is robbing a bank relatd to voting?
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It's related to robbing a bank because someone with that little foresight and character could do terrible things with a vote...or gun.

Whether you think it is irrelevant to a felony conviction doesn't bear on whether the felon received due process prior to the conviction. Due process doesn't mean that you agree with the punishment. Did he have the opportunity to face his accusers? Was the evidence adduced and admitted at trial properly admitted? Did he have adequate assistance of counsel?

Those issues go to the integrity of the process that resulted in his conviction.

I dispute the size of the grey area in finding someone ineligible to retain his rights. The decision is binary. One can be odd, angry, or a spendthrift, but not incompetent, and shouldn't have his rights revoked. If someone is genuinely a danger to himself or others, the police already have the authority to act.

A person engaged in menacing, stalking, harassment or conspiracy has committed a crime and the police have authority to act.

How much more power does the state need to exercise?
 
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If someone is genuinely a danger to himself or others, the police already have the authority to act.
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This was brought out in hearings for a "red flag-gun confiscation" hearing in my state (Minnesota) just this week.

The point seemed to be lost the folk wanting this law.

It was also brought up that after you take away the person guns, you still leave this "DISTURBED" person, whom you suspect is a danger to themselves or others, loose with access to everything. That is, black market guns, gasoline, trucks, pressure cookers, rope, tall buildings and bridges etc., etc., etc.

This point too seemed to be lost on the folk wanting this law.

All in all watching the hearing led me to the inevitable conclusion that some of my lawmakers in Minnesota REALLY DO WANT TO TAKE AWAY MY GUNS despite their incessant claims to the contrary.
(Stay tuned. More stunning revelations from Captain "Dalea" Obvious to come.)
 
IMO,most states have some form of 72 hour hold law.During that 72 hours,professional evaluation can result in a longer hold,and there are provisions in Federal law that apply to firearms. Read the form 4473 firearms purchase form. The questions.The ones about ""Have you ever been judged mentally incompetent...or involuntarily commited…

I would assume there are similar state laws.

An issue would be the sentiments around the movie "One Flew Over the Cuckoo's Nest"

As a society we are (or like to think of ourselves)as kind, compassionate people with respect for the humanity of mentally ill people. We also have advocacy groups who will fight in court for the rights of mentally ill human beings

Most of us are good with that.


A problem arises when the reason the 72 hour hold law is negated by this advocacy. I have read police comments that 72 hour holds are routinely immediately released.And no one wants to be sued.

The process of "slipping through the cracks" is institutionalized.

The councilor contacts police about her patient,gives them a notebook,no action is taken.

So,lawmakers don't fix the old law.That would put the Mental health advocates up in arms.

But the gun control political platform demands something. What to do?

Continue to protect the mentally ill,but designate a new class of sub humans,the gun owner! Who does not deserve a full set of Constitutional Rights."Untermench"

The practice of dehumanizing a subset is as old as mankind.Probably Neanderthal vs Homo Sapiens.

Its generally only unpopular with the minority group.

Look at the media. Will they tell you thre NRA,or political Consevatives,or Christians,etc deserve due process and respect?

Or is a simple charge "He's a witch" result in the requirement to prove oneself innocent?'

The solution to a law on the books that does not work is fix it or repeal it.

We just stack law on top of law,each robbing us of more Liberty.


Once again,make it about the GUN,and not about PEOPLE WHO KILL


And satisfy the illusion of control at the expense of those Untermench,sub human gun people. They probably should be tattoo'd . On their foreheads. That would solve gun crime! Oh,Governor! I have an idea!!!

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How is robbing a bank relatd to voting?
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There are politics,identity politics,where one party or the other seeks blocks of voters.Any voter. Dead voters,non-citizen voters,virtual voters,.

This attitude subverts and corrupts the very foundation of what it means to

have the Right to Vote as a Citizen in a civil society.

If a person shows such contempt for the civi society they are convicted of a felony in a court of law,I fully and absolutely agree they forfeit the right to shape that society. A thief has rationalized for himself. The thief can rationalize criminal activity in government. I don't want gangsters showing up on election day to vote for gangsters.

Its also perfecty correct that some choices lead to lasting sanctions.
Whether it is "fair" or not,drunk driving can take away your driving priveleges,a dishonorable discharge carries sanctions,IIRC,including loss of vote and 2A, peodophiles,rapists,etc must register as sex offenders,

That's life. If you value your right to vote,don't rob banks.

Do the same people who advocate for the restoration of voting rights for the felon who has "paid his debt to society" advocate for restoring the felons right to buy a gun?
Or is it just about a scummy way to get more votes? Its not hard to figure out if a position is based on playing cards for advantage,or whether it is based on principles when it cuts both ways. There is little virtue in hypocrisy
 
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Good commentary. Thanks
Seems like the bar to commitment is high and I agree that it should be. However, are the administrators of these laws acting within the best for the public good? Are they, pardon the atrocious pun, gun-shy in pushing commitment for folks like the Parkland and Giffords cases? Could better use of existing mechanisms be the issue and not the mechanism itself?

The Aurora case comes to mind where the police had clear good cause to confiscate the shooter's guns (felony conviction) but just sent a letter instead. That's not red flag I know but still a legal mechanism was in place to get that guys guns but didn't. Of course he could buy one illegally but that is not the issue for the laws and their execution.

Seems like we walk the razor's edge by whether to take guns from a person we legitimately believe to be crazy and making involuntary mental health sanctions too common.
 
Tennessee Gentlemen said:
Seems like we walk the razor's edge by whether to take guns from a person we legitimately believe to be crazy and making involuntary mental health sanctions too common.
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I think the problem could be less subtle. After a shooting, people exercise their very sharp hindsight, then imagine that this is a good measure of their foresight.

It isn't. The world is stuffed with people who aren't quite right, not to mention people who are mentally healthy but believe crazy ideas. Most of them never hurt anyone seriously. Yet, in hindsight each oddity of a killer takes on an ominous appearance even where they aren't omens.
 
Instead of concentrating on trying to keep guns out of the hands of mentally ill people who roam among us untreated, we could try and do something about better treatment for the mentally ill.

That would help a lot more people and we wouldn’t be stigmatizing the vast majority of mentally ill people who never do anything violent or burdening gun owners who don’t have issues.

Of course, that doesn’t lend itself to dividing us up into political blocs for easier management by our self-determined masters, so it probably won’t get much traction.
 
WHAT? You mean actually Treat the cause and not the symptom? The Left won't tolerate that at all; it goes against everything they are trying to do when it comes to guns.
 
Instead of concentrating on trying to keep guns out of the hands of mentally ill people who roam among us untreated, we could try and do something about better treatment for the mentally ill.
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Bartholomew Roberts

That is a dandy suggestion, and certainly a large number of people on all sides of the political spectrum agree. Just one big snag....how to pay for treating large numbers of mental patients. Evidently many homeless people are mentally ill. Addicts, alcoholics, violent domestic abusers, workers going postal, etc ad infinitum. And mixed into this are those that categorically view mental health issues as some sort of demonic condition.

Goverment support for mental institutions began to diminish under the auspices of money savings by govermental officials. Here is a good synopsis if any care to read it:
https://www.nytimes.com/1984/10/30/science/how-release-of-mental-patients-began.html
 
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