The ACLU of Rhode Island today issued a fourteen-page analysis that expresses “great concern” about pending state legislation that would allow family members and law enforcement officers to petition a judge to issue an “extreme risk protective order” (ERPO) against an individual who legally owns firearms but who is alleged to pose a “significant danger of causing personal injury to self or others.” This so-called “red flag” legislation follows the tragic shooting of students at a Parkland, Florida high school last month.

While recognizing the bill’s laudable goal, the ACLU’s analysis expressed concern about “the breadth of this legislation, its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one.”

The ACLU analysis notes that the court order authorized by the legislation could be issued without any indication that the person poses an imminent threat to others, and without any evidence that he or she ever committed, or has even threatened to commit, an act of violence with a firearm. Further, the court decision would be made at a hearing where the person would not be entitled to appointed counsel. Under the legislation, a court order would require the confiscation for at least a year of any firearms lawfully owned by the person, place the burden on him or her to prove that they should be returned after that time, potentially subject him or her to a coerced mental health evaluation, and give police broad authority to search their property for firearms.

Among the other points raised by the ACLU’s analysis:

  • The standard for seeking and issuing an order is so broad it could routinely be used against people who engage in “overblown political rhetoric” on social media or against alleged gang members when police want to find a shortcut to seize lawfully-owned weapons from them.
  • Even before a court hearing is held, and a decision is made, on a petition for an ERPO, police could be required to warn potentially hundreds of people that the individual might pose a significant danger to them.
  • Without the presence of counsel, individuals who have no intent to commit violent crimes could nonetheless unwittingly incriminate themselves for lesser offenses.

The heart of the legislation’s ERPO process requires speculation – on the part of both the petitioner and judges – about an individual’s risk of possible violence. But, the ACLU analysis notes: “Psychiatry and the medical sciences have not succeeded in this realm, and there is no basis for believing courts will do any better. The result will likely be a significant impact on the rights of many innocent individuals in the hope of preventing a tragedy.”

The ACLU’s analysis concludes:

“People who are not alleged to have committed a crime should not be subject to severe deprivations of liberty interests, and deprivations for lengthy periods of time, in the absence of a clear, compelling and immediate showing of need. As well-intentioned as this legislation is, its breadth and its lenient standards for both applying for and granting an ERPO are cause for great concern.

“The ACLU urges legislators to focus bills like these on addressing serious imminent threats to the public safety while safeguarding robust due process procedures before granting the courts and law enforcement agencies potentially intrusive powers over the liberty of individuals charged with no crime. A narrower bill with basic due process protections can provide the proper balance in promoting both public safety and constitutional safeguards.

“Gun violence is a deeply serious problem deserving of a legislative response, but not, Minority Report-like, at the expense of basic due process for individuals whose crimes are speculative, not real. The precedent it creates could reverberate in unexpected and distressing ways in years to come.”

A copy of the ACLU’s analysis can be found here.