Current law is BETTER than any "red flag" law when utilized properly
I am hopeful that this review of the Ohio Revised Code, and the laws already in place to deal with violence and mental health concerns, effectively counters all the needless calls for “Red Flag” laws.
As can be seen below, provisions already exist within current Ohio Laws that are more effective than proposed Red Flag Laws while, at the same time, preserving an individual’s rights under both the Ohio and United States Constitutions.
RED FLAG LAW - KEY POINTS
- Red Flag laws turn due process on its head. It is up to the gun owner to prove that he has a right to have the firearms returned. When removing any Constitutionally-protected right, the burden should be on the accuser.
- Red flag laws remove third-party intervention by mental health professionals and leave the decision up to a single police officer subject to approval by a judge. With no other source of information such as a psychological review, the judge is likely to side with the law enforcement officer leaving the gun owner with no due process.
OHIO ALREADY HAS A MORE EFFECTIVE LAW ON THE BOOKS
- Ohio already has a law on the books which, when properly used, is more effective than Red Flag laws. Ohio Revised Code section 5122.10 allows a police officer or sheriff’s deputy to take a person into custody and transport them to a hospital where they can be held for psychological evaluation for up to three days. If the psychologist confirms that the person represents a substantial risk of physical harm to self or others, the person can be presented without release to a court for issuance of an order of detention. Section 5122.10 is replete with due process protections not available under any of the existing or proposed Red Flag laws.
- This process injects mental health professionals into the equation rather than allowing the decision to be made solely by a single police officer.
- Rather than removing the gun from the person, the person is removed from the gun as well as any other weapons that may be available. Most importantly, the person is removed from the potentially volatile situation.
- An affidavit and a statement of alleged facts sufficient to indicate probable cause to believe that the person is a mentally ill person subject to court order may be filed with the Probate Court Judge, or referee. If the judge or referee finds probable cause to believe that the person named in the affidavit is a mentally ill person subject to court order, the judge or referee may issue a temporary order of detention ordering any health or police officer or sheriff to take into custody and transport the person to a hospital or other place designated in section 5122.17 of the Revised Code.
- Under ORC 2923.13, adjudication as a mentally ill person subject to court order disqualifies the person from firearms ownership and firearms can be confiscated. The person is also prohibited from further firearms purchases.
- At all times during the adjudication process, the person will have been removed from firearms, other dangerous weapons and from the volatile situation. Red Flag laws only remove the firearms that were present at the time of the original incident and do not necessarily contain the dangerous individual.
- Violation of the firearms ownership prohibition through the purchase or possession of other firearms would allow criminal charges as a felony of the third degree.
- In Ohio, three types of protection may be qualifying protection orders for the purposes of firearms disability within the context of domestic violence. These are domestic violence temporary protection orders (ORC § 2919.26), domestic violence civil protection orders (ORC § 3113.31), and in some instances civil stalking and sexually oriented offenses protection orders (ORC § 2903.214). Each of these provide procedures to confiscate firearms from those subject to the Protection Order.
- Florida has a law that is very similar to Ohio’s provisions for dealing with mentally ill persons who are a threat to others. Despite repeated warnings, the system was not used in the Parkland school situation. It is well established that this was a breakdown of government. It was not an absence of laws. Law enforcement failed to use the tool that they had available.
In short, persons calling for Red Flag laws are doing so as a knee jerk reaction to tragic situations without first understanding that Ohio Law already provides much more effective tools. These calls for Red Flag Laws are also made in utter disregard for the Second Amendment and fundamental principles of Due Process. Whether they are called Red Flag Restraining Orders, Gun Violence Restraining Orders, Serious Threat Orders of Protection or Extreme Risk Protection Orders, they leave the individual who is supposedly a threat to self or others completely free to still be a threat to self or others, while only confiscating the firearms that they are aware of, thereby totally discounting the countless other means available to harm themselves and others.
If Red Flag Laws were truly about public safety and not about vilifying firearms, current Ohio Law as outlined above would be utilized. Existing laws provide the means to remove the individual for medical evaluation and treatment. The many past tragedies almost universally are found to be the result of mental illness of varying forms and degrees. Yet when faced with the reality that the root cause is mental illness, government chooses only to focus on the firearm; which is merely the means for the mentally ill, not the root cause of their actions. If a person is truly a threat to themselves or others, so much so that the government is willing to deprive them of their constitutional Due Process and Second Amendment rights, then how can government strip them of civil rights based upon being an immediate danger to society, and yet leave that same threat to society alone to use countless other means to cause harm?
Sean Maloney is an attorney specializing in gun law and serves as legal counsel for Buckeye Firearms Association, Board Member with both BFA and NRA, and is a Certified NRA Firearms Instructor. His efforts have led to his induction into the NRA-ILA EVC Hall of Fame.