Red Flag Laws and Network Assistance

mdhayesby Marty Hayes, J.D., President, Armed Citizens’ Legal Defense Network, Inc.

A question commonly asked is whether the Network will pay legal expenses on behalf of our members if they are “red flagged.” Despite considerable pressure from the buying public, we remain solid in our decision to not promise assistance for members who are served “Red Flag” Extreme Risk Protection Orders (ERPO or Red Flag order).

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.

Please understand that the Network is not selling insurance. You see, being served an Extreme Risk Protection Order is an act which is out of your control. Any plan that provides assistance for “an out of your control” action (a contingency) would likely be deemed to be providing “insurance” for that contingency. If we are to remain in business and continue to pay our members’ legal fees after self defense, we must not expand into services that constitute insurance coverage. We have developed our business model around the fact that the Network voluntarily provides assistance to members after the member has voluntarily and intentionally acted in legitimate self defense.

For over a year, the Network has been embroiled in a legal battle against 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 according to RCW 48.01.040 is: “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 the Network will not indemnify or pay a specific benefit that is based upon the occurrence of a determinable contingency (for this discussion, being served with an Extreme Risk Protection Order), because that would constitute insurance and we stand firm that we are not offering insurance.

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. That is 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, but don’t specify exactly what help will be given. 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.

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. For additional study, members may recall that in 2019 an 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.

In conclusion, the Network membership benefit of paying legal expenses is reserved for members after legitimate use of force in self defense as described more fully at https://armedcitizensnetwork.org/learn/membership-benefits. From our beginnings in 2008, our mandate has been to reserve the Legal Defense Fund for legal defense of use of force in self defense. If we funded legal counsel to fight incursions against members’ gun rights, we would deplete the Legal Defense Fund and find ourselves no longer able to accomplish our original mission, that of fully funding the fight against malicious prosecution.

For that reason, we do not pay attorneys to help members with concealed carry license denials, to fight gun possession restrictions imposed against someone who rents their housing, or argue against restrictions enacted against spouses during a bad divorce, as a few examples of legal fights we have been asked but declined to fund. There are a lot of unjust restrictions and in spite of the difficulties they cause, the Network must reserve the Legal Defense Fund for defense of self defense so that we remain well prepared to vigorously fight murder, manslaughter or assault charges brought against members who defend themselves.