Why is DOJ funding "red flag" laws in states where they're not in place?

AP Photo/Susan Walsh

Several Republican lawmakersw have a serious question for the Biden Justice Department: what on earth is going on with the agency’s awarding of millions of dollars in grants for “red flag” laws, even in states where no such law exists?


According to a letter sent to Attorney General Merrick Garland from Sen. Roger Marshal of Kansas. and West Virginia Rep. Alex Mooney, not only is the DOJ handing out grants to states that have failed to meet the minimum due process protections required under the Bipartisan Safer Communities Act last year, it’s dishing out grants to agencies in states without any Extreme Risk Protection Order laws in place to begin with.

The letter accuses the Biden administration of ignoring Congress and demands to know why grants to at least eight states and territories with no red flag laws on the books nevertheless received federal funds under the DOJ program. It was signed by seven GOP senators and 26 House lawmakers.

“The Department of Justice appears to have weaponized the Bipartisan Safer Communities Act to illegally fund ineligible ‘red flag’ laws and bribe pro-gun states into passing gun confiscation laws,” the lawmakers wrote.

“Since the passage of the Bipartisan Safer Communities Act, no states have revised their statutes to comply with the ‘due process’ requirements imposed by the 117th Congress,” the letter states. “Nevertheless, the Bureau of Justice Programs has funded every state that applied with a ‘red flag’ gun confiscation law on the books without enforcing Congress’ ‘due process’ requirements. The federal government should have no part in funding state level gun confiscation programs which violate the due process rights of gun owners.”

The Republicans, quoting a Myth vs. Fact sheet from Texas Republican Sen. John Cornyn’s office, say Congress made explicitly clear that the Bipartisan Safer Communities Act was not intended to require or incentivize states to adopt red flag laws. The law also prohibits federal funding from being used to lobby state legislatures to pass any legislation or law.

“Disturbingly, several states and territories without ‘red flag’ laws on the books have been granted funding for the creation and implementation of such programs – including Arizona, Arkansas, Kansas, Minnesota and West Virginia,” the Republicans wrote. “It appears that this Bipartisan Safer Communities Act grant program is being used by the federal government to influence states into enacting ‘red flag’ gun confiscation laws.”


You can check out the grants for yourself here, and there are definitely some oddities. Why, for instance, is the Arkansas Department of Finance and Administration receiving $3.2-million to “work towards developing and implementing an Extreme Risk Protection Order Program,” including “trainings for those implementing ERPO programs and providing communication, education, and public awareness of ERPO” when ERPO’s don’t exist in the Natural State?

West Virginia lawmakers approved a measure in 2021 that specifically prohibits the establishment of any such “red flag” laws, yet the DOJ has awarded nearly $1.8-million to the Justice and Community Services Section of the West Virginia Division of Administrative Services for “developing and staffing a new advisory board known as the West Virginia Crisis Intervention Advisory Board to inform and guide the state’s related gun violence reduction programs/initiatives.” According to the grant information, that board will then “assess the need for and capabilities of implementing programs and/or initiatives that are allowable under the SCIP program. These programs/initiatives include, but are not limited to 1) extreme risk protection order (ERPO) programs, which aim to temporarily prevent a person from accessing firearms if they are found to be a danger to themselves or others; 2) training for those implementing ERPO programs; 3) communication, education, and public awareness; 4) specialized court-based programs such as drug, mental health, and veterans’ treatment courts; 5) behavioral health deflection for those at risk to themselves or others; and 6) funding for law enforcement agencies to safely secure, store, track, and return relinquished guns.”


“The DOJ’s efforts to disarm law-abiding gun owners is unconstitutional,” Marshall told Fox News. “The Biden administration must immediately stop this scheme to strong-arm states into enacting these laws and answer for the millions of dollars illegally distributed in an attempt to do so. Kansans will not accept any attempts by this administration to strip them of their Second Amendment rights.”

“This scheme by the Biden Department of Justice is clearly intended to bribe and coerce states into adopting gun confiscation laws,” said Mooney. “West Virginia is a constitutional carry state and has no business receiving federal dollars to restrict Second Amendment rights. West Virginians deserve to know how the federal and state governments are spending tax dollars to limit your constitutional rights.”

While there are legitimate and serious questions for Garland, there are also some inquires that need to be directed to the heads of these state agencies. According to DOJ, these grants are only awarded after state agencies have applied for the federal funds, so why is any government agency in West Virginia requesting money to “assess the need” for a “red flag” law when ERPO’s are already prohibited under state law?

It’s also important to note that not every state is requesting Byrne grants to implement “red flag” laws. North Carolina’s $7.6-million grant, for instance, is ostensibly going towards “supporting the Behavioral Threat Assessment Program administered by the State Bureau of Investigation” as well as promoting safe gun storage, with nary a mention of “red flag” laws or Extreme Risk Protection Orders.


I don’t know if we’re looking at a case of the Biden administration trying to bribe states into adopting “red flag” laws, which would still require the support of the state legislature, or just another waste of taxpayer dollars, but this is definitely worth digging into. I’m glad to see that it’s caught the attention of Marshall, Mooney, and several of their colleagues on Capitol Hill, though I’m skeptical we’ll ever get any straight answers from Garland or the DOJ about why and how these millions of dollars are being spent promoting laws that aren’t in place… and in at least one case, specifically prohibited by state law.

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