“Red flag laws” bring gun control controversy to Capitol Hill

SALT LAKE CITY – In the age of mass shootings, opinions on gun ownership are shifting.

“I believe the tide against gun ownership is changing, and it’s changing at a feverish pace,” KSL’s Jay McFarland said Monday on the JayMac News Show. “It changes with every single mass shooting. It changes with every single crime and every single suicide.”

Broadcast live from Capitol Hill on the first day of Utah’s 2019 Legislative Session, Monday’s show focused on extreme risk protection orders, also known as “red flag laws.” A bill proposed by Rep. Stephen Handy, R-Layton, would allow Utahns to petition the courts to temporarily suspend access to firearms by friends or family members believed to pose a threat to themselves or others.

While many accuse proponents of red flag laws of being “anti-gun,” Handy said his position as a gun owner and concealed carry permit holder has strengthened his conviction that such laws are necessary.

“Things are changing in this country,” Handy explained to McFarland. “We need to do things that are common sense like this that are working in other states, because if we don’t and we have something terrible that happens, then you’ll have a societal knee-jerk for something extreme, and we don’t want that.”

McFarland, who also holds a concealed carry permit, agreed.

“I believe that the right to bear arms is fundamental to a free society, and I believe that our founders felt that that was the case. But I don’t know if our founders could have foreseen mass shootings. I don’t know if our founders could have foreseen the suicide epidemic,” McFarland said. “I think we can demonstrate that there are common sense things that can be done to reduce gun deaths, to reduce gun violence. For me, red flag laws are one of those things.”

Currently, 13 states have laws authorizing courts to issue extreme risk protection orders. Utah’s legislature first considered the law in 2018 after the shooting at Marjory Stoneman Douglas High School occurred during the legislative session.

“Lots of consternation,” Handy said of his legislative colleagues’ reaction to the Parkland shooting. “Constituents contacting us. Lots of whispers in the halls, ‘What do we do? What do we do? What do we do? Do we do anything?'”

Handy said the turning point for him was when his daughter, a mother of four school-age children, called him and asked what he was going to do about gun violence in schools.

“Now, talk about a constituent,” Handy said.

At that point, Handy began researching potential legislative action that could make schools safer for his grandchildren without infringing on their Second Amendment rights. The Department of Public Safety pointed to red flag laws passed in Indiana and other states, and Handy looked to their language while drafting a bill of his own. The question was always one of balance.

“How can we carefully thread the needle here, protecting a constitutional right but protecting what I believe people want, protecting life and limb?” he asked.

Handy received special permission to introduce his bill after the submission deadline. It was heard on the very last day of the 2018 session.

“It didn’t go anywhere, it wasn’t ready for it, but we had the discussion,” Handy said.

After the 2018 session ended, Handy took his bill to the Utah Safe Schools Commission, which was formed to address the issue of gun violence in school. He sought input from attorneys, law enforcement, the Utah Shooting Sports Council, and advocates of both gun ownership and gun control. This year’s draft has not yet been made public, but Handy promises it includes best practices from successful states and input from passionate Utahns of all stripes.

Not everyone is on board, though. Rep. Cory Maloy, R-Lehi and Saratoga Springs, is also a member of the Republican party, worries that ERPOs constitute overreach in a legal system already equipped to deal with offenders.

“Most of the laws already exist that would do what a so-called ‘red flag law’ would do,” said Maloy, who is sponsoring a resolution saying as much. “We do it right. We have the right mix of laws that protect our people as it relates to weapons and firearms and violence, combined with the constitutional rights for people to bear arms.”

According to Maloy, Utah already has 22 laws that address the concerns voiced by supporters of ERPOs. He pointed to Utah’s “Safe Harbor” law, which allows people to voluntarily leave their guns at police stations for safekeeping for up to 60 days. The law also allows people living with a gun owner to take their guns and give them over to the police if they are threatening to harm themselves or others. While extreme risk protection orders require concerned Utahns to make their case before a judge before guns are seized, and include a provision that people looking to challenge the order may see a judge within 14 days, safe harbor laws are voluntary, allowing any concerned Utahn to remove their cohabitant’s guns from the home without legal support.

“Where’s the due process in that?” McFarland asked Maloy. “To me, that seems completely a loss of rights without any ability to challenge that whatsoever.”

“It’s not taking [guns] away, it’s removing them for safekeeping,” Maloy responded.

McFarland did not understand the distinction, and pressed Maloy further.  “Can you take them without their permission under that law?”

“You can remove them from the home,” Maloy said.

“Okay. So there’s no due process under that law,” McFarland confirmed.

Clark Aposhian, chairman of the Utah Shooting Sports Council, worries that ERPOs treat law-abiding gun owners like criminals. He said the ex parte, or one-sided, nature of the ways concerns are raised to a judge puts gun owners on the defensive long before they commit crimes or behave unsafely.

“We’re talking about an individual who will have his firearms seized – probably in the wee hours of the morning as is tactically appropriate – having no prior knowledge whatsoever of this,” Aposhian told McFarland. “And now they are under not just state but federal restrictions. They can not have, hold, possess, purchase, buy, transfer – they can not use a firearm for self defense, they can’t use one for hunting. If they do, they are now subject to a federal felony… All without even being suspected of committing a crime, let alone actually committing one.”

“When we start playing fast and loose with these constitutionally identified and protected rights, we’re on a bad road,” Aposhian finished.

McFarland again reiterated his commitment to protecting Utahns’ rights to bear arms and receive due process.

“If you’re someone who’s not making threats with a firearm, if you’re somebody who’s not suggesting that you’re suicidal or that you’re a domestic violence threat, I want your right to bear arms to be intact,” McFarland said. “But I don’t believe that our rights have to be a death sentence.”

Handy, like McFarland, believes red flag laws are a reasonable condition we can put on our rights, much like the condition that the right to freedom of speech does not include the right to yell “fire!” in a crowded building.

“I’m not saying this will stop every suicide. I’m not saying this will stop every mass shooting,” Handy said. “We’re trying to get a tool in the toolbox that’s a reasonable common sense thing that families can deploy.”

The JayMac News Show will continue to cover Representative Handy’s bill as it moves through the legislative process. You can join the conversation online by using #gunwatch or by getting text updates about the bill if you text GUNS to 57500.