‘Red Flag’ Legislation Is Unlikely in Iowa

ADEL, Iowa – State Senator Jake Chapman, R-Iowa, announced that he opposes any ‘red flag’ legislation offered at the state level.

After the mass shootings in El Paso, Texas and Dayton, Ohio, there have been calls for ‘red flag’ legislation. These laws are meant to fill the gap between criminal law and laws governing mental health adjudications. They are meant to give standing to a limited group of people to seek a gun-violence restraining order, a temporary seizure order, if admissible evidence (evidence like documents, testimony, or tangible evidence that can be used during a criminal trial) that a gun owner exhibits threatening behavior.

“The idea of being innocent until proven guilty is revered in American jurisprudence. This legislation would declare a gun owner guilty, and force him or her to come back before a court and prove their innocence at a later time,” Chapman stated.

U.S. Senators Lindsey Graham, R-S.C. and Richard Blumenthal, D-Ct., will submit legislation that incentivizes states through “a federal grant program that help law enforcement work with mental health professionals when action is needed,” Politico reports.

Graham who is the Senate Judiciary Committee chairman said any action should include “robust due process and judicial review.”

President Donald Trump indicated earlier this week that he supports such legislation.

David French, a civil libertarian and attorney who writes for National Review, supports the concept of gun-violence restraining orders but only if they are properly drafted.

“Properly drafted, these laws can save lives while also protecting individual liberty. Improperly drafted, they grant the state an overly broad tool that can be systematically abused to deprive disfavored citizens of a fundamental constitutional right,” he wrote in his column on Monday.

French said “red flag” legislation that is “properly drafted” should contain the following elements:

1. It should limit those who have standing to seek the order to a narrowly defined class of people who have direct interaction with the respondent (close relatives, members of their household, employers, educators).
2. It should require petitioners to come forward with clear, convincing, admissible evidence that the respondent is a significant danger to himself or others.
3. It should grant the respondent an opportunity to contest the claims against him.
4. In the event of an emergency, ex parte order — one granted before the respondent can contest the claims — a full hearing should be scheduled quickly, preferably within 72 hours.
5. The order should lapse after a defined period of time unless petitioners can come forward with clear and convincing evidence that it should remain in place.

“The idea of a court issuing a seizure order and suspending someone’s Second Amendment rights before that person has ever been convicted of a crime is a dangerous precedent to set. We are a Nation that respects and honors due process, this type of legislation is a direct assault on that foundational right,” Chapman added.

French rebutted the “precedent” argument that was also made Harvard Law School professor Alan Dershowitz in a column in the Wall Street Journal.

“Red-flag laws aren’t “setting” precedent. They’re following precedent. Our legal system contains a host of laws that restrain individuals — and even deny them liberty — based evidence-based finding of future danger. Domestic violence orders of protection, restraining orders, and involuntary civil commitment (for people facing an acute mental health crisis) are commonly based on actions or statements that indicate an intent to inflict future harm. While many people who express suicidal or homicidal thoughts don’t kill themselves or others, countless Americans are grateful for processes that require a person to seek mental health treatments, bar them from access to homes or workplaces, or prevent them from maintaining personal contact with threatened individuals,” he wrote at National Review on Wednesday.

“In fact, even the almost universally-supported prohibition against violent felons owning weapons is based in large part on prediction — the notion that violent criminals are disproportionately likely to re-offend. It’s dangerous to have guns in their hands,” French added.

Chapman noted the steps Iowa has taken to expand gun rights in the state such as “shall issue” legislation requiring county sheriffs to issue carry permits unless an applicant is ineligible under state or federal law. Prior to that, county sheriffs were able to subjectively turn down carry permit applications under the previous “may issue” law. Iowa also passed “stand your ground” legislation and is in process of passing a constitutional amendment that would enshrine the right to keep and bear arms in the Iowa Constitution.

Because of this, Chapman said that the legislature passing a ‘red flag’ law is unlikely.

“Gun control is often hyped as a miracle cure to violence. However, the reality is that gun laws such as ‘gun-free zones’ do nothing to stop violence from occurring and in fact only restrict law-abiding citizens from defending themselves. The proposed ‘Red Flags’ legislation will be no different and will do nothing to prevent these evil and violent acts from occurring. We have to look much deeper,” Chapman concluded.

French also said he doesn’t believe these laws provide a complete solution. “No one thinks red-flag laws are a complete solution to the present contagion, but too many mass killers have exhibited obvious warning signs for our nation not to seriously consider how to respond to people who broadcast their dangerous designs,” he wrote.

One state legislator, State Rep. Dean Fisher, R-Garwin, argued on Facebook this week, that Iowa may already have similar language in the Iowa Code already making a ‘red flag’ law unnecessary.

“(I)f a person has a history of domestic abuse or has been diagnosed as dangerously mentally ill then the system now can be used to deny them their rights to not only possess guns, but can be used to incarcerate them. Heck, we have a sex offender unit in Cherokee with SO’s who have fulfilled their sentence and have been civilly committed to the SO unit there,” he wrote.

“I know that Law Enforcement can order a person to turn in their guns now based on domestic abuse charges, and likely based on mental health issues as well. We have a purchase permit system now with a background check,” Fisher added.

Iowa law does contain elements of “red flag” laws already.

Iowa Code 724.8 does, in fact, prohibit carry permits for persons who are alcoholics, where there is probable cause that a person will use the weapon unlawfully or in a manner that would put their lives and others’ in danger, been convicted of assault within three years of applying for a permit, or is otherwise ineligible according to Iowa Code 724.26 or federal law.

Iowa Code 724.26 states that convicted felons, those are the subject of a protective order, or those convicted of domestic violence are ineligible to possess, ship, transport, or receive a firearm. Doing so would be a class D felony under Iowa law that is punishable up to five years in prison and a fine between $750 to $7500.

Iowa Code 724.13 gives county sheriffs the ability to suspend or revoke a carry permit of those who are “arrested for a disqualifying offense or is the subject of proceedings that could lead to the person’s ineligibility for such permit may immediately suspend such permit.”

If the arrest leads to a conviction or the proceeding leads to a disqualifying finding, then the carry permit is revoked. Iowa Code 724.21A outlines the process and hearings that are involved when this happens.

Federal law also makes it illegal for anyone to sell a firearm or ammunition to anyone who has “adjudicated as a mental defective or has been committed to any mental institution” and it is also illegal for those persons to possess a firearm.

Those who advocate for “red flag” laws would note that there are gaps. While the county sheriffs can suspend a carry permit after an arrest or the notice of a proceeding, that is not the same as a suspension of a person’s ability to possess a firearm.