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Red Flag Law Changes

Chapter 135 (H.4885) includes notable changes to Massachusetts’ Red Flag Laws. Here’s a comparison between the new law under Chapter 135 and the previous framework:

Existing Red Flag Laws – On the Books Already (Before Chapter 135)

Very Few Instances have been documented where Red Flag Laws prevented or stopped violent crime. Freedom of Information Requests to Executive Office of Public Safety and MA State Police, say there are no records related to this request.
Petitioners: Only certain individuals, such as family members, household members, and law enforcement officials, could petition a court for an Extreme Risk Protection Order (ERPO). This prevents random people from making false claims against neighbors and people they have a problem with.
Process: Petitioners needed to demonstrate that an individual posed a significant risk of causing harm to themselves or others. This was typically presented in court, where a judge would evaluate the evidence and issue an ERPO if deemed necessary.
Duration: Temporary ERPOs could be issued quickly, often within a day, and lasted until a full hearing was held (usually within 10 days). Final ERPOs could last up to one year, with the possibility of renewal.
Rights: Individuals subject to an ERPO had the right to a hearing to contest the order and could present evidence to defend against the continuation or issuance of the ERPO.

Changes Under Chapter 135 (H.4885)

Expanded List of Petitioners: The new law broadens the group of people who can file for an ERPO to include more categories, such as additional family members, teachers, and healthcare providers. This expansion forces a “guilty before innocent” claims by people who are not medically qualified to make the assessment.
Enhanced Reporting Requirements: Chapter 135 makes it mandatory for healthcare professionals or educators who possibly identify concerning behavior to report that individual to Law enforcement. Even though Educators are not trained and there is no training program in place.
Stricter Enforcement: The law adds more rigorous guidelines for the immediate removal of firearms from individuals subject to an ERPO. It may also involve coordination between law enforcement and other state agencies for follow-up checks.
Longer Duration and Review: The new law potentially extends the initial and renewal duration of ERPOs & introduces more stringent criteria for renewal, making it harder for respondents to reclaim their firearms without comprehensive reviews.
Penalties for Non-Compliance: Chapter 135 includes stricter penalties for individuals who do not comply with the terms of an ERPO, enhancing the legal ramifications for violations.
Training and Awareness: There are additional mandates for training law enforcement and involved parties on how to handle ERPO cases effectively, which could involve new procedures or protocols.
Confidentiality Clauses: The new law includes expanded confidentiality provisions to protect the identities of those who report concerns or petition for an ERPO, aiming to encourage reporting without fear of reprisal, but allowing false claims to be made without any penalties by the accusers.

Implications

The expanded Red Flag provisions in Chapter 135 (H.4885) come with several potential negative implications that could affect individuals’ rights and open avenues for abuse. Here are some key concerns:

1. Potential for Abuse by Petitioners

Broader List of Petitioners: The expansion to allow more individuals, such as teachers and healthcare providers, to petition for ERPOs could lead to misuse. If someone has a personal grievance or bias, they might leverage this provision to file an ERPO based on subjective interpretations or non-imminent concerns.
False or Misleading Claims: There is a risk that people could file petitions with false or exaggerated claims to harm someone personally or professionally, using the ERPO process as a tool of harassment or retaliation.

2. Impact on Due Process Rights

Immediate Removal of Firearms: In many cases, an ERPO can result in the immediate confiscation of firearms without a full hearing. This can create a situation where an individual’s property is taken away without them having the opportunity to present their side of the story beforehand.
Insufficient Evidence Standards: The standard of proof for an ERPO may be lower than that of criminal proceedings, potentially leading to decisions based on limited or circumstantial evidence.
Delayed Hearings: Although hearings are intended to be prompt, logistical issues or court backlogs could delay an individual’s opportunity to challenge the order and reclaim their property, prolonging the impact on their rights and daily life.

3. Stigmatization and Reputational Damage

Public Perception: Being subject to an ERPO can tarnish an individual’s reputation, even if the claims are ultimately found to be unfounded. This stigma can impact personal relationships, employment, and standing in the community.
Confidentiality Issues: While confidentiality clauses might protect the petitioner, the respondent may suffer from indirect disclosures or public awareness, especially in smaller communities where such orders are hard to keep private.

4. Professional and Personal Impacts

Job and Licensing Implications: For individuals in professions that require firearms (e.g., law enforcement, security, military), being subject to an ERPO could lead to job suspension or loss, affecting their livelihood even if the order is later found unwarranted.
Collateral Consequences: Beyond the immediate impact of losing firearms, individuals may face challenges in renewing licenses or acquiring new ones due to the ERPO being on record, potentially creating long-term professional consequences.

5. Expansion of Government Authority

Slippery Slope: Critics argue that expanding the range of people who can petition for an ERPO could set a precedent for further broadening in the future, gradually lowering the threshold for restricting an individual’s rights.
Law Enforcement Burden: Increased responsibilities for law enforcement to act on ERPOs, conduct follow-up checks, and handle petitions could strain resources, potentially affecting their ability to respond promptly to more urgent public safety matters.

6. Potential Chilling Effect on Free Speech

Hesitation to Speak Out: The knowledge that teachers, healthcare workers, or acquaintances can petition for an ERPO may cause individuals to avoid discussing stress, mental health issues, or personal problems for fear that it could be used as a basis for a petition.
Self-Censorship: People might avoid seeking help or engaging in open conversations about personal difficulties to prevent triggering an ERPO, which could discourage proactive mental health care or community support.

7. Questionable Impact on Public Safety

Lack of Clear Evidence for Effectiveness: While proponents argue that Red Flag laws prevent violence, studies on their effectiveness in reducing firearm-related incidents are mixed. Critics point out that determined individuals may still find other means to commit acts of violence, limiting the overall impact of ERPOs.
Focus on Legal Gun Owners: These laws primarily impact individuals who have registered and lawfully owned firearms, which may not align with addressing the sources of most violent crime, typically involving unregistered or illegally obtained weapons.

7. Red Flag Laws May Actually Increase Suicide Rates

Individuals who may be experiencing trauma or depression, are less likely to seek voluntary help because in doing so, they will become part of the Criminal Justice System and immediately lose many rights.
The Rand Corporation conducted an extensive research study, looking at all Gun laws and concluded that in most cases, Red Flag laws had no effect on stopping violent crimes. It was even proposed that in many cases, individuals did not seek professional help for fear of being stigmatized and losing their constitutional rights.

Summary

While the intent behind the expanded Red Flag laws under Chapter 135 is to enhance public safety and provide preventive measures, the potential for abuse and infringement on rights presents significant concerns. The broader range of petitioners, lower standards of evidence, and immediate impact on individuals’ property rights could lead to situations where these laws are used improperly, impacting due process, personal freedom, and professional lives. Without strong safeguards and clear accountability measures, there is a risk that these laws may create more issues than they resolve.

Broader Reach: By expanding the list of petitioners, Chapter 135 increases the potential for proactive risk management but raises concerns about misuse or abuse of the system due to a broader range of petitioners.
Rights Concerns: The changes could impact individuals’ rights more significantly, especially if due process is perceived as insufficient or if there are delays in holding hearings for respondents.
Operational Challenges: Increased reporting and coordination requirements may place additional burdens on law enforcement and courts, potentially leading to longer response times or logistical challenges.
Public and Professional Involvement: The inclusion of teachers and healthcare providers in the list of petitioners highlights a shift towards a community-focused approach to risk management but could face pushback regarding the balance between responsibility and liability.

This comparison outlines how Chapter 135 strengthens and expands Massachusetts’ Red Flag Laws, emphasizing a proactive approach to preventing potential firearm-related incidents while raising questions about practicality and the protection of individual rights.