A Double-Filter Provision for Expanded Red Flag Laws: A Proposal for Balancing Rights and Risks in Preventing Gun Violence

Abstract

In response to the continued expansion of “red flag” laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category — “reporting party” — that enables a broader social network, such as co-workers or school administrators, to request that a law enforcement officer file a petition for an Extreme Risk Protection Order (ERPO). A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers (first filter), who must seek an ERPO from the court if they find the reporting party's information credible. That information is then transmitted to the court (second filter) as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that (1) widens the reporting circle in order to feed more potentially life-saving information into the system, (2) mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights.