Red Flag Laws
by Marty Hayes, J.D.
It is time to set the record straight regarding the Network’s stance on Red Flag Laws, also known as Extreme Risk Protection Orders. This is a topic we are frequently asked by members and prospective members alike.
Extreme Risk Protection Orders are the latest and not so greatest attempt to legislate additional burdens on to the law abiding gun owner and is facially an attempt to address the real concern about people who exhibit tendencies towards violence against others, and what to do about their right to keep and bear arms. Members will remember that an earlier Attorney Question of the Month gave our Network Affiliated Attorneys a chance to discuss Extreme Risk Protection Orders with their commentaries published at https://armedcitizensnetwork.org/april-2019-attorney-question and https://armedcitizensnetwork.org/may-2019-attorney-question.
Studying one state’s example gives good overview of the national situation. The State of Washington has had its version of Extreme Risk Protection Orders in place for a couple of years now (RCW 7.94.010 https://app.leg.wa.gov/RCW/default.aspx?cite=7.94 ) and while there’s been considerable commentary and erroneous reports about its use, it is interesting to read news stories about it now that the politicking has calmed down. Examples at https://www.seattletimes.com/seattle-news/crime/extreme-risk-seattle-police-have-seized-43-guns-from-people-deemed-to-be-a-danger-under-year-old-law/ , https://q13fox.com/2019/10/21/washingtons-red-flag-law-allows-authorities-to-seize-neo-nazis-guns/ and https://www.nytimes.com/2019/11/18/us/gun-seizures.html are just a few stories about ERPOs during the Washington law’s history which spans several years. I would urge the reader, whether or not a Washington resident, to read these varied stories. Doing so will give you a clearer picture of the issue.
The Network gets a lot of questions about providing members with funding to pay an attorney if the member is served with an Extreme Risk Protection Order. We have studied this question at length, concluding that there are two major reasons that the Armed Citizens’ Legal Defense Network, Inc. does not extend any benefits to our members to assist if they are served with an Extreme Risk Protection Order.
First, the Network was founded to assist members after use of force in self defense, not to fight incursions into gun rights. Although we have often been asked for funding outside of self-defense law, we have never drawn down the Legal Defense Fund to assist with problems like unjust refusal to grant or renew concealed carry licenses, restoration of gun rights, to fight gun rights restrictions stemming from domestic problems, or other non-self-defense issues. The Network was not founded to get involved in any of those concerns.
It is also likely that it is not beyond the financial capabilities of the vast majority of our members to hire their own attorney to take an Extreme Risk Protection Order to court. I spoke with an attorney from WA State who recently handled an ERPO hearing. This attorney indicated to me that a $3,000 to $5,000 retainer is what he takes to start work on a defense, the difference being location and details of the case. And while you might not have $5K sitting in your gun safe, most attorneys take credit card payments, so if you have an open VISA card, you should be able to mount a defense.
Secondly, as you know, the Network is embroiled in a legal issue with the Washington Office of Insurance Commissioner, which alleges that the benefits the Network extends to our members constitute insurance. The definition of “insurance” in Washington State is, according to RCW 48.01.040: “Insurance is a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies.”
The key parts of that definition are the words “determinable contingency.” In simple terms, if we (the Network) indemnified or paid specific benefits based upon the occurrence of a determinable contingency (for purposes of this discussion, being served with an Extreme Risk Protection Order), then the Network would be offering insurance and would fall under the jurisdiction of insurance commissioner.
Since any request for assistance from the Network hinges on a voluntary act by the member–an intentional act of self-defense–we do not come under the commissioner’s jurisdiction, because our benefits are not linked to a determinable contingency. Consequently, and primarily because of this, we will not assist a member who has been served an ERPO.
In this determination, the Network is not alone. Of the five remaining self-defense protection plans (other than ourselves), three are in line with the Network on this, and two say they will provide assistance. Speaking frankly, I would recommend the best course of action is to study your state’s laws regarding ERPOs and make sure you do not commit any acts that might allow someone to make a case to take away your guns.
Criminal Acts Prohibition
As you know, one of the requirements before we can pay an attorney to represent a Network member is the member was not otherwise involved in a criminal act while using force in self defense. Because this is such a common question from prospective members, let me clarify.
First, a member cannot be involved in breaking the law regarding ownership and possession of firearms and expect Network assistance with legal expenses. We are mostly concerned about unlawful concealed carry, i.e. carrying a handgun concealed without a valid permit for the location in which you are carrying concealed. The reason for this is that the Network does not want to enable illegal activity. If you want to carry a gun illegally, do not expect the Network to be available to help you.
Second, when we take a look at a case to determine whether or not the incident the member was involved in constitutes a case of self defense, we have to consider the surrounding circumstances. For example, if the member shot and killed someone after being threatened with a knife, but the member was the one who started the altercation, then we would likely turn down a request to assist that member. In the same vein, if the member used force against a family member (either current or former), then we are going to look at the facts very closely before we agree to assist the member. Another situation where we would very likely not assist a member is if they used force resisting arrest and then made a claim of self defense against the police officer. This is a matter of public policy. The courts have determined the proper way to gain redress against excessive force by law enforcement is not by fighting back, but through the civil tort process.
I hope this clears up questions about Network assistance to members. Remember, the Network was formed to assist law-abiding citizens who chose to use force voluntarily to stop a criminal act against them. The member’s concurrent actions need to be squeaky clean if they want our assistance in proving their claim of innocence and expect a positive, successful outcome in court.
To read more of this month's journal, please click here.