CNN Misses The Mark On Red Flag Laws

AP Photo/Ron Harris

Hardly a day can go by without running into an opinion piece or article that sings praise for so-called gun control measures. CNN is not historically friendly to the Second Amendment, so finding another op-ed love letter to freedom-limiting measures came as no surprise.

The piece “How ‘red flag’ laws could prevent workplace shootings” is almost a bait and switch. I do believe the author has altruistic and good intentions, however I’m of the opinion that he’s wrong on some of his proposals. He goes into detail on how a “red flag” proposed model legislation by the Department of Justice is lacking in the scope of whom can enact such measures. The claim is that employers and others people work with should have such powers to have extreme risk protective orders levied against an individual. The fact is, a red flag law would not have have stopped some of the recent high profile workplace violence episodes that have occurred. From the article:

Last month, Samuel Cassidy, a “disgruntled” employee, gunned down nine people at a San Jose Valley Transit Authority rail yard and then killed himself. His ex-wife told the Associated Press that Cassidy had talked about killing people at work and was viewed as unstable by his coworkers. An ex-girlfriend alleged in a court document that the shooter had bipolar disorder.

As the article starts out, we can see failure number one. Cassidy’s ex-wife. If she alleged that her ex-husband was making threats in the form of talking about killing people he worked with, why did she not alert the authorities? Why would she admit that? Regardless of a red flag provision in the law being present, telling other individuals that they talk about killing people does amount to a credible threat, and is worthy of investigation.

Through that investigation with policing authorities, Cassidy’s bipolar disorder may have come up. It may not have. The system in place has plenty of room to work. According to another article, Cassidy had not been in contact with his ex-wife for about 13 years, and the relevance of that is only because at that time there was no extreme risk protective order law in California.

The article continues:

The US Department of Justice recently issued model legislation setting guidelines for stronger state “red flag” laws. These laws allow a court to order the removal of firearms from people who pose a risk to themselves or others. Though important, the DOJ legislation leaves a huge gap by overlooking workplaces, where too many of these shootings occur.

Until employers and coworkers are included on the list of those who can ask a judge to disarm a dangerous individual, workplace shootings will continue to proliferate. Not only should employers be authorized to report workers who pose “extreme risk,” they should be immediately notified when a worker has been “flagged” under a state law. Such information, which would be kept confidential by company management and human resources, could be essential to maintaining a safe workplace.

This is where Zambrano, the author of the op-ed, starts to waver. He opened the piece talking about the shooting in California and then goes on the explain that the new “model legislation” from the Department of Justice needs to be altered to remove any roadblocks for employers to be able to assert a red flag confiscation. Assembly Bill No. 61 in California, signed on October 11, 2019 came into effect on September 1, 2020. The law’s intent is exactly what Zambrano claims can stop such shootings. From the text of the law:

Any of the following individuals may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in their custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition:

(A) An immediate family member of the subject of the petition.
(B) An employer of the subject of the petition.
(C) A coworker of the subject of the petition, if they have had substantial and regular interactions with the subject for at least one year and have obtained the approval of the employer…

I think this settles the debate. The red flag law that is being pushed here, in the way of changes to the model legislation, was the law of the land in California when the shooting cited occurred. Employers and coworkers could have enacted a red flag seizure.

In the “editor’s note” the following is stated:

Ronald Zambrano is the employment litigation chair at West Coast Employment Lawyers….

We can appreciate that Zambrano’s forte is probably not criminal law, but c’mon. The statute is there in California. Anyone can look it up and read it. In fact, Zambrano lists California and Hawaii as the only two states in the Union that allows employers and coworkers to enact an extreme risk protective order. So what gives? Doesn’t that moot his own argument?

One of the other “solutions” brought up just screams breach of privacy, especially if a seizure was called upon someone with malicious intent:

Not only should employers be authorized to report workers who pose “extreme risk,” they should be immediately notified when a worker has been “flagged” under a state law. Such information, which would be kept confidential by company management and human resources, could be essential to maintaining a safe workplace.

As if something like that would not result in some serious water cooler conversations?

The piece goes on in detail about how red flag laws are effective, need to be embraced, and that workplace violence in the way of shootings would be curtailed if said provisions were included. Well, if they didn’t work in California, like most of California’s laws tend to be defunct, what on Earth makes people think the same failed policy would work across all of the States?

The high notes that were touched upon do need to be embraced and brought to light though. He makes valid points, we just don’t agree on everything. The redeeming qualities of the piece include:

More employers can start by adding a mental health component to standard workplace trainings, educating workers on how to seek help for their own mental health issues and how to recognize and respond to issues they observe in others. Employees dealing with mental health issues must be given permission to confidentially seek treatment and accommodation without fear of retaliation or stigma. Coworkers must have a space to submit anonymous reports if they see a coworker going down a mental spiral, and management should be trained to react to such reports responsibly and confidentially.

Mental health is an issue in the United States. It’s actually a human issue that’s not bound by political boundaries. Initiatives that encourage seeking self-care and other measures to tend to people’s individual mental heath do need to become more mainstream. That’s all exclusive of red flag laws.

The biggest problems with these measures that are law today (and the pages of Bearing Arms are filled with stories dealing with these failed policies) is that there’s no due process for whom a red flag law is enacted on, and there’s no remedy in the way of treatment for this “dangerous” person. If the authorities see it fit to have someone’s firearms removed from their possession, there’s nothing stopping them from enacting harm with many other means. No actual help for this person is offered. They’re sent off on their own recognizance, probably more pissed off than they were prior to the triggering of a seizure, which infringes on Fourth Amendment protections. Shouldn’t someone like “that” be helped?

The unintended consequence, and really many will argue that this is not unintended at all, is that there’s nothing in the way to stop another individual from weaponizing a red flag seizure order. There have already been countless stories of people having extreme risk protective orders or red flag laws enacted on them out of spite or malice. None of these laws offer up criminal penalties for people that use them to “get” someone. The proposed law structure by the Department of Justice does have provisions in it for “perjury” in such instances, but most states do not have that in their current law. Shouldn’t we be aiming to fix laws first before enacting more?

One thing that legislators and proponents of such measures seem to never realize is that there’s no way to legislate away evil. People that are intent on doing harm will do harm. An event that’s approaching its 20th anniversary involved two sky scrapers being completely demolished, the Pentagon getting attacked, and another airplane crashing, all with the use of box cutters. “…some people did something…” Granted, we now have policy to keep people from bringing box cutters onto airplanes, but it was not a firearm that was used to bring the world to a halt on 911 and take innocent lives. What else was instituted was that we now have armed personnel on planes.

What Zambrano is advocating for is safe workplaces, at least that’s what I see. That is an admirable thing. We all want and deserve safe workplaces. Having advocates that fight for such things is important. However, it’s my opinion that he’s missing the mark. That’s not to say a dialog shouldn’t be started on things like self-care awareness and tending to one’s mental health. But we’ve learned that prohibition of things simply does not work.

If Zambrano approached this not from strictly a myopic “workplace safety” perspective, perhaps he would team up with groups like Doctors For Responsible Gun Ownership and Walk The Talk America. Two groups that aim to address some of these difficult issues dealing with mental health and firearms. Both of which take pragmatic approaches that don’t hinge on more burdensome unconstitutional legislation. I’m sure both of these groups would entertain honest dialog with people that want to see positive change in society in the realm of mental health and firearms.

The article almost ended on a high note, and yes as stated earlier, there are things we can agree on:

Nobody knows what’s going on in another person’s head, but when mental health issues are ignored in the workplace, they are likely to erupt in unfortunate and sometimes horrific ways. A robust mental health awareness and response program, coupled with strong red flag laws, could go a long way toward saving lives.

This is true, “Nobody knows what’s going on in another person’s head…” and that’s about where it ends. I’m sure there are plenty of places someone that has had their firearm(s) seized can go to buy guns off the street. If that were not the case California would have hardly any firearm related crime.

Oct 20, 2021 5:30 PM ET