The Problems with LB 58 and Other Red Flag Laws in Nebraska

With the introduction of LB 58—the Extreme Risk Protection Order Act (“ERPO”)—Nebraska is the latest state to enter the Red Flag Law debate. Our first article in this series discussed the terms of LB 58 in detail. The purpose of this article is to discuss the legal and policy issues behind the proposed law. While the laws among states differ, they are consistent in that they allow confiscation of lawfully owned firearms without the due process protections normally afforded fundamental rights. Moreover, ERPO attempts to solve a problem that already has appropriate solutions under Nebraska law.

Constitutional Implications of Red Flag Laws

The 2^nd Amendment to the Constitution establishes that individual firearm ownership is a fundamental right in America. Like free speech, freedom of the press, the right to remain silent, the rights of life, liberty and property—the Constitution requires high level due process before fundamental rights can be infringed. It is clear from the political discourse in the firearms debate that a small but powerful group of people wish the Second Amendment didn’t exist. Ironically, this comes at a time when many other fundamental rights are under attack.  Free speech, as one example, is under attack on college campuses across our Country.  This proves the brilliance of our Founding Fathers in having the foresight to embody these rights into the Constitution.  In Nebraska, the fundamental right to bear arms is located in the very first section of the Nebraska Constitution.  Still, that does not prevent people from being hostile to these rights, and it certainly does not prevent the Government from continually pushing boundaries in its attempts to limit these rights.

Generally speaking, before a fundamental right can be infringed by the government, the government must show it has a “compelling state interest” and that the law is narrowly tailored to that particular interest. To be narrowly tailored, the law must not become burdensome on the rights of law-abiding citizens.  Of course, both the United States Constitution and the Nebraska Constitution do not provide an absolute prohibition on the infringement of fundamental rights.  We know this to be inherently true because if the Government could never infringe upon a person’s right to liberty, then the government would be powerless to jail convicted criminals.  Such absolutes would make society essentially a free-for-all.  Instead, the key to evaluating whether Government action is appropriate is to evaluate the level of “due process” that is provided a person before their rights may be infringed and how narrowly tailored the law is to the problem it is attempting to solve.   ERPO fails on both accounts.

Bypassing Due Process in LB 58

The fundamental flaw in LB 58 is that it provides no due process for an individual to prevent the seizure of their firearms until it is too late. No other fundamental right is treated so cavalierly.  After all, we don’t allow the government to raise our property tax assessments without notice and the right to a hearing before the assessment. We don’t trust the government to take away drivers’ licenses from those accused of drunk driving without providing notice and a hearing before the license is temporarily revoked. If we protect ourselves from taxation (not a fundamental right) and driving (also not a fundamental right) with notice and a fair hearing, it is extremely dangerous to start granting government the right to confiscate our legally obtained property without prior notice and a hearing.

In this context, it is especially important to remember that Red Flag Laws are focused solely on those who lawfully own firearms.   This is necessarily true because if a firearm is in the possession of a “prohibited person,” then the government already has all of the authority it needs to confiscate a firearm under more effective criminal laws.  In fact, it is a serious crime for a prohibited person to be in possession of firearms (Class ID felony for first offense and Class IB felony for second or subsequent offense under Nebraska law, and separately punishable by up to 10 years and a $100,000 fine under federal law).  Thus, any suggestion that ERPO is a tool against unlawful firearm ownership would be patently false.

The reality is that ERPO is a tool designed to remove firearms from people the government “predicts” might commit a crime in the future.  That argument, however, should scare everyone on numerous other levels.  We don’t take cars away from people because they “might” speed in the future.  We don’t restrict fundamental freedoms because the government “suspects” that someone might commit a crime in the future.  Granting such power to the government with regard to a fundamental right would be the first step in a very slippery slope that could fundamentally change how the Constitution is used by government.

ERPO Is Unnecessary in Nebraska

Furthermore, ERPO is unnecessary if the purpose is truly to remove firearms from individuals who present a “substantial risk” of harm to themselves or others. This is true because Nebraska law already allows law enforcement to place a person in emergency protective custody if they meet the same standard as ERPO sets forth. Neb. Rev. Stat. § 71-919. Specifically, the Mental Health Commitment statute (Neb. Rev. Stat. § 71-908) defines a person who can be committed as:

Mentally ill and dangerous person means a person who is mentally ill or substance dependent and because of such mental illness or substance dependence presents:

(1) A substantial risk of serious harm to another person or persons within the near future as manifested by evidence of recent violent acts or threats of violence or by placing others in reasonable fear of such harm; or

(2) A substantial risk of serious harm to himself or herself within the near future as manifested by evidence of recent attempts at, or threats of, suicide or serious bodily harm or evidence of inability to provide for his or her basic human needs, including food, clothing, shelter, essential medical care, or personal safety.

Of course, this is effective because it takes a person who is truly dangerous away from all weapons—it does not merely take firearms away from them.  Also, people taken into emergency protective custody are given an immediate mental health evaluation to determine whether they are, in fact, dangerous.  Finally, a mental health commitment has significant due process protections that ERPO lacks.

ERPO, on the other hand, pretends to “protect” the public without actually requiring any mental health treatment.   ERPO merely leaves those who are accused of being mentally ill and dangerous to their own devices.  In this regard, it is a sham.  Proponents of Red Flag laws will argue that it is “hard” to have someone taken into protective custody because they are afforded significant due process. Isn’t that the point? Do we want the Government to be able to infringe upon our fundamental rights based on rumor or innuendo? Do we want the Government to infringe on fundamental rights based upon the subjective “fear” of another regardless of whether that fear has any basis in reality?

Finally, without significant due process protections, ERPO and other Red Flag laws become tools that can be abused by those who merely want to take guns off the street. This may sound unlikely, but the truth is that such abuses already occur. Many gun control organizations have been accused of engaging in “Swatting”—the practice of calling police and falsely accusing others of committing gun crimes to have the police arrive in force. Swatting has caused at least one innocent death because it unknowingly puts individuals into tense situations with armed first responders.

ERPO proponents argue that the information used to confiscate firearms is reliable because it comes from family or those closely associated with the person. Even assuming the close relationship can be appropriately vetted before firearm confiscation under ERPO, anyone who has watched families treat each other with utter disdain during divorce proceedings or while they fight over a dead relative’s property knows that a familial relationship does not guarantee honesty in any reliable form. Above the bench where the Nebraska Supreme Court sits is a quote from the ancient philosopher Heraclitus: “Eyes and Ears are poor witnesses when the soul is barbourus.” If our own Nebraska Supreme Court cannot trust the eyewitness, then why should we assume our Legislature is any better at it?

Nebraska Firearms Rights Lawyers

At Berry Law, we oppose LB 58 because the proposed Extreme Risk Protection Order Act does nothing to protect the public while giving the government the power to confiscate lawfully owned firearms without prior notice or a hearing.  The Act lacks appropriate due process protections regarding the important and fundamental constitutional right to bear arms.  Further, it is an attempt to solve a problem that already has better solutions under existing Nebraska Law. We understand the importance of the 2nd amendment.  Our firm is a proud member of the NRA Business Alliance and the National Shooting Sports Foundation. If you need legal help due to your ownership of firearms, contact our firearms rights attorneys today at 402-466-8444 to schedule a consultation.