In response to the continued expansion of “red flag” laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category — “reporting party” — that enables a broader social network, such as co-workers or school administrators, to request that a law enforcement officer file a petition for an Extreme Risk Protection Order (ERPO). A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers (first filter), who must seek an ERPO from the court if they find the reporting party's information credible. That information is then transmitted to the court (second filter) as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that (1) widens the reporting circle in order to feed more potentially life-saving information into the system, (2) mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights.
Coalition to Stop Gun Violence, It's Time to Retire the Term “Red Flag Laws” (March26, 2019), Giffords Law Center, available at <https://giffords.org/blog/2019/03/retire-red-flag-laws/> (last visited September 16, 2020).
S.Frattaroli, K.Hoops, and N.A.Irvin, “Assessment of Physician Self-Reported Knowledge and Use of Maryland's Extreme Risk Protection Order Law,”JAMA Network Open, December20, 2019, available at <https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2757878> (last visited September 16, 2020).
See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
24.
R.H.Fallon, Jr., “Some Confusions about Due Process, Judicial Review, and Constitutional Remedies,”Columbia Law Review93 (1993): 309-73, at 329.
25.
See, e.g., Fuentes v. Shevin, 407 U.S. 67 (1972); Fed. Deposit. Ins. Corp. v. Mallen, 486 U.S. 230, 240 (1988).
26.
J.Blocher and J.D.Charles, “Firearms, Extreme Risk, and Legal Design: ‘Red Flag’ Laws and Due Process,”Virginia Law Review106 (forthcoming 2020), available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3534630> (last visited September 16, 2020).
27.
See Mathews v. Eldridge, supra note 23, at 335.
28.
District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
29.
U.S. Const. amend. II.
30.
See, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 600 (1950).
31.
Mitchell v. W. T. Grant Co., 416 U.S. 600, 616 (1974).
J.W.Swanson,et al., “Criminal Justice and Suicide Outcomes with Indiana's Risk-Based Gun Seizure Law,”Journal of the American Academy of Psychiatry and the Law Online (April2019), available at <http://jaapl.org/content/early/2019/04/15/JAAPL.003835-19> (last visited September 16, 2020).
46.
See N.M. S.B. 5, supra note 10.
47.
Id.
48.
Id.
49.
Id.
50.
Id.
51.
Id.
52.
See Maryland Courts, supra note 20; see also Frattaroli, et al., supra note 21.
