Raising the Flag

Red flag laws enable law enforcement to remove firearms from people whom the court has deemed a threat. Few states enforce these laws, but in the wake of the recent Parkland tragedy, that may change.

California is among the few states that have red flag laws, including Connecticut, Washington, Indiana, and Oregon. These laws essentially allow for an expedited process when a friend, family member, co-worker or even law enforcement perceives a person may be a threat to themselves or others. Without red flag laws, it takes more than just a perceived threat to lawfully take away a person's firearms (if legally held).

The premise of red flag laws is simple: enable concerned citizens to step forward and ask for protection when they think someone is a risk. These laws allow the courts to issue special protective orders even before the suspect harms anyone. The protective orders then instruct law enforcement to remove firearms from the person subject to the order. Just like other forms of protective orders, these can vary in duration from about three weeks but up to a year.

These laws are highly controversial. Some say they allow the government to take one step too far in policing our private lives. Others argue these laws are needed to close the “gap” between when someone becomes a risk and when they harm people. The courts can take preemptive action, with good cause. These precautionary protective orders, however, could save the lives of many potential victims.

Gun Laws in California

For California gun owners, the red flag law controversy isn't as high stakes. California already has its version of a red flag law, though you might expect to see the law being taken advantage of more often in light of the national debate following the Parkland, Florida high school shooting involving gunman Nikolas Cruz. California's red flag law was passed in 2014 after the UCSB shooting involving mentally ill shooter Elliot Rodger in Isla Vista. With the passage of that law, family members could ask the judge to remove firearms from at-risk individuals. Likewise, law enforcement can petition for this specific type of protective order that prohibits firearm ownership. Lawmakers are already asking for an expansion of the law to grant the right to co-workers, high school, and college personnel, and mental health care professionals, too. Such an expansion was raised in 2016 but wasn't approved.

The Alternative

Without red flag laws, a family member or law enforcement officer would have to petition to have the at-risk individual involuntarily committed to a psychiatric institution before their firearms could be lawfully seized. This involves action from the mental health courts. But with the nature of mental health courts and state of in-patient facilities today, involuntary commitment is almost a thing of the past. Not only is there a shortage of inpatient beds, the administrative procedure for involuntary commitment is not streamlined. Proving to the court a person is a risk to him or herself and others requires more than just a family member's opinion. Furthermore, involuntary commitment significantly disrupts the life of the patient, who can then be released shortly after with medical clearance. This leaves a wide gap between what people in states without red flag laws can do to protect themselves and others before it's too late.

Learn About Your Rights

You should learn about your gun rights and California gun laws if you are a California gun owner. Laws are changing and your rights could be affected. Staying up to date on recent changes to the law can help you protect your rights no matter what. Gun rights are especially important to learn about because of the consequences of unlawful firearm possession. For example, a person prohibited from carrying firearms in California due to certain criminal convictions could lose his or her gun rights for ten years to life for a violation.

Facing criminal charges can be overwhelming, but experienced Visalia area criminal defense attorney Christopher Martens can help you navigate the process of defending your rights and clearing your name. At The Law Offices of Christopher Martens, we can help you build a strategic defense to fight your charges. Attorney Martens has practiced criminal defense for over ten years and knows how to defend your rights.  Contact our Visalia or Hanford offices at 559-967-7386 or email us at [email protected] to discuss a possible plan of action for your case.