Psychologist Makes Case Against Red Flag Laws

In the first two years that Florida’s red flag firearms seizure law was on the books, more than 3,500 petitions were filed with courts across the state, and the orders were approved more than 95% of the time. Critics of the law have pointed out that individuals can be stripped of their right to own a firearm even though they’ve not been arrested or even charged with a crime, and while the red flag law requires a court hearing within two weeks of an order being granted, low-income gun owners are not entitled to a public defender or free legal representation because the court procedure is civil, not criminal in nature.

Some mental health experts are also opposed to the red flag laws, arguing that simply taking guns away without addressing the underlying mental health conditions doesn’t really solve the problem of dangerous individuals. One mental health counselor in Florida says she’s concerned that people who aren’t really a threat to themselves or others could easily get ensnared in the law.

“Are we talking about somebody who’s actively psychotic and out of touch with reality or somebody that’s just really struggling at the time,” Dr. Laura Streyffeler, a Licensed Mental Health Counselor, said.

The law was passed after 17 people were killed at Marjory Stoneman Douglas High School. But, Streyffeler is fearful if law enforcement starts to make clinical diagnoses, that could be dangerous.

“I think if we start having them diagnose and take away weapons and have mental health diagnosis as a way that people are going to lose their firearms I think what’s going to happen is people are going to stop looking for help,” Streyffeler said.

Some members of law enforcement see the issue differently.

“Just like law enforcement can take someone into protective custody if they’re a threat to themselves like a Baker Act it kind of coincides with that,” said, Claudette Bennett, Public Information Officer, Charlotte Co. Sheriff’s Office.

“There’s no way a risk protection order would be filed without clear and convincing evidence that this individual could be a risk,” she said.

The problem with that argument is that the Baker Act, or civil commitment laws, may not be used as often when authorities have the option to pursue a red flag order instead. Red flag laws, including the one in Florida, do not generally involve mental health experts at all. Instead, it’s up to a judge to decide whether or not someone poses a danger to themselves or others, and during the initial hearing the subject of the red flag order isn’t even present in the courtroom to offer their side of the case.

Florida State Rep. Anthony Sabatini is hoping to repeal the state’s red flag law, though it’s likely going to be an uphill battle.

This week, Sabatini continued his effort by also introducing legislation that would repeal Florida’s “Red-Flag Law,” which he calls unconstitutional. He explained that the law in place “allows a judge to confiscate firearms without due process.” In addition, his repeals “irrational anti-2a laws” like “the law prohibiting adults 18-20 years of age from purchasing firearms.”

It was a Republican-controlled legislature that passed red flag legislation in 2018 and a Republican governor who signed the bill into law, so Sabatini is going to have to persuade his conservative colleagues to undo the measure approved three years ago if Florida’s red flag law is going to be successfully rolled back. That’s unlikely to happen, at least this session, but I’m glad the lawmaker is at least making the attempt.

I do understand that there are supporters of red flag laws who aren’t gun-grabbing activists intent on obliterating our Second Amendment rights, but the fact remains that the law does have significant issues, both from a constitutional perspective and as a practical matter. If someone is truly a danger to themselves or others, then the issue isn’t whether or not they own a gun, it’s whether they’re getting help, and red flag laws don’t address the actual problem in any way. It’s much cheaper, after all, to confiscate someone’s guns than to put them in an in-patient mental health facility, but that doesn’t mean it’s more effective or constitutional.