A bill that its sponsors say will prevent gun violence in Kansas isn’t likely to receive a committee hearing in the Kansas House. Critics say the Gun Safety Red Flag Act tramples on the due process rights of law-abiding citizens.
HB 2129 would allow a family member or law enforcement to seek a court order to prevent people who may be a danger to themselves or others from possessing or purchasing a gun.
“It’s another thing that we can do to try to reduce gun violence,”says Rep. Jim Ward, a Wichita Democrat and one of the bill’s sponsors.
The legislation languishes in a legislative committee and is unlikely to receive a hearing in the Republican-controlled Kansas House. The National Rifle Association opposes the measure, says NRA State Director Travis Couture-Lovelady.
“The NRA strongly opposes HB 2129 and any bill that does not protect due process rights,” he said.
Ward says the due process argument is ridiculous, because the legislation is modeled after the procedures for restraining orders.
Under the Gun Safety Red Flag Act, once a family member or law enforcement files a request for a gun safety protective order, the court will set a hearing within 14 days. But another provision of the legislation allows a temporary order to be issued before the hearing and without notice to the defendant. In those instances, the proposal only requires that the family member offer “detailed allegations based on personal knowledge that the defendant poses an immediate and present danger of causing personal injury to self or others” by having a gun or purchasing one.
David French, a conservative who writes for National Review, says conservatives and liberals should be able to support a well-crafted gun violence restraining order that is targeted and protects due process. French says the law should contain these elements:
1) It should limit those who have standing to seek the order to close relatives, those living with the respondent, and perhaps also school principals or employers.
2) It should require petitioners to come forward with clear and convincing evidence that the respondent is a significant danger to himself or others.
3) It should grant the respondent an opportunity to contest the claims.
4) In the event of an emergency, ex parte order, a full hearing should be scheduled quickly — ideally within 72 hours.
5) The order should lapse after a defined period of time (30 days would be acceptable) unless petitioners can produce clear and convincing evidence of continued need.
Though it’s unlikely the bill will be forwarded to the House floor through the committee process, Ward says he is prepared to offer the proposal as an amendment so lawmakers have the opportunity to vote on it. In order for him to do so, a bill related to gun ownership or firearm purchases has to come to the House floor for debate first. Ward believes that will happen.
“It’s just as certain as Sunday comes after Saturday. Republicans build up a record of voting for guns and against abortion,” Ward says.
Other states are considering variations on the red flag act this year. Minnesota and Colorado legislators are debating similar proposals and New York Gov. Andrew Cuomo recently signed into law red flag legislation in his state.
Ward says the interest in red flag laws is based on the school shooting in Parkland, Florida, that killed 17 people, last year.
“A number of teachers and people close to the shooter in Parkland said this doesn’t surprise me at all. Teachers said he wrote some things and said some things that were very disturbing and they just didn’t know where to go with it,” Ward says.
If adopted in Kansas, courts in each county would be responsible for issuing gun restraining orders and creating their own related processes. Ward doesn’t believe courts would see many requests.
“It’s something that would happen infrequently,” he says.
Couture-Lovelady, a former state representative from Hays, says the NRA will continue to fight for the constitutional rights, including the due process rights, of all law-abiding Americans.
“Due process is the bedrock of our constitutional freedoms,” he said. “Without it, we would cease to exist as a free country.”