National Rifle Association off target on red flag law process

In the race for governor, a radio ad from the National Rifle Association offers a laundry list of complaints against Democratic Gov. Tony Evers' stance on guns, citing self-defense issues, "California-style" firearm bans and magazine bans. 

But we wanted to focus on one claim in particular: That Evers "would even allow the government to use red-flag laws to confiscate your firearms without due process."

Red flag laws, sometimes referred to as extreme risk protection orders, are in place in 19 states and Washington, D.C. These laws allow the government to temporarily take away guns of people who show evidence of having the potential to harm themselves or others. 

But does Evers support such a law?

And would it, as the NRA claims, allow guns to be "confiscated" without due process?

Let’s take a look.

In July, President Joe Biden signed the Bipartisan Safer Communities Act, which includes monetary incentives for states to pass red flag laws. 

Such laws provide a mechanism to take guns from people exhibiting dangerous behavior before they harm themselves or others, as we noted in a 2019 item.

The first such law was passed in Connecticut in 1990, but the second didn’t appear until Indiana’s in 2005. Many states enacted such laws after mass shootings at schools across the country. For example, in 2018, 14 states enacted them after a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, killing 17.

Although the process varies from state to state, the laws typically allow someone (usually a law enforcement officer or close family member) to petition a judge to temporarily take away someone’s firearms because of a potential threat they may present to themselves or others.

But some states allow for doctors, co-workers or school officials to petition as well.

Evers clearly supports such laws.

In 2019, he called a special session of the Legislature to try to force Republicans to take up such a measure for Wisconsin. But GOP lawmakers gaveled in and out of the session without any action.

For his part, GOP gubernatorial candidate Tim Michels has been against such laws. 

"People are entitled to due process," Michels said in a July 18 interview on the Vicki McKenna show. "You just can’t have someone make a complaint against you and your … Second Amendment right be taken away."

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When asked for backup for the claim, an NRA spokesperson said that red flag laws are issued ex-parte, meaning that a gun owner would have little to no notice if their gun was potentially being taken away. 

Hence, the part of the claim that a gun would be taken "without due process."

This reminded us of a similar claim Assembly Speaker Robin Vos made in 2019 in response to Evers’ move to force a vote on introducing red flag laws in Wisconsin. 

We rated Mostly False a Vos claim that "red flag laws" allow gun seizure without a judge’s involvement: "They take it away first. Then you have to get permission from a judge to do it."

In that item, we noted:

These (red flag) orders are temporary and last from two to 21 days depending on the state, according to an issue brief put together by the nonpartisan Wisconsin Legislative Council. Gun owners then have a chance to make their cases at a hearing before a judge decides on a final order. That order commonly lasts for a year.

So, the NRA’s description of this as "confiscation" is over the top, in that the statement can be understood as one never gets guns back. What’s more, it ignores just what Evers was advocating.

Back to our 2019 item:

Evers’ proposed red flag law for Wisconsin requires a hearing within 14 days of the preliminary order, and makes a final order valid for a year. It says guns should be seized if the judge finds "reasonable grounds that the respondent is substantially likely" to harm themselves or others. Requests can be made to extend the final order or end it early.

State law already requires guns be surrendered as a result of other judicial findings, such as mental health commitments and restraining orders, according to the Legislative Council.

Finally: The Wisconsin proposal — contrary to Vos’ description — doesn’t allow any guns to be seized without a judicial order.

So, under the proposal Evers backed, a judge was involved from the beginning. And, as the item noted, such laws in other states have been upheld as constitutional on both Second Amendment and due process grounds. That includes a ruling upholding the Florida law in September 2019.

The NRA has a point in that the gun owner is not involved from the beginning, but the way it states the claim goes too far — especially given the fact other such laws have been upheld.

The NRA claimed that Evers would, "use red-flag laws to confiscate Wisconsinite firearms without due process."

Like Vos on an earlier claim, the NRA vastly overstates the way red-flag laws work, suggesting there is no judicial process at all. In truth, the proposal backed by Evers had a judge involved from the start, unlike in some other states. The NRA also used over-the-top language in describing a temporary seizure through a clear judicial process as "confiscation."

The NRA has a point that the gun owner is not necessarily involved in the initial hearing, but that alone — as other courts have held — does not mean it violates due process.

Our definition for Mostly False is "the statement contains an element of truth but ignores critical facts that would give a different impression."

That’s what we rate this item.