Fogelman: New ‘red flag’ gun law doesn't address individual safety risk

On Jan. 1, the new Extreme Risk Protection order (ERPO) law, more commonly known as the Red Flag law, went into effect in the State of Minnesota. The law establishes a process for a person to file a petition with the courts whereby if someone believes you are a risk to self or others, a court can issue an order to have your firearms seized by law enforcement.

District 21B Rep. Marj Fogelman (R-Fulda) opposed the proposal, noting the person receiving the order isn’t even entitled to a trial or hearing before his or her guns are confiscated.

“To me, this law is a significant violation of an individual’s constitutional rights,” Fogelman said. “Worse, it does not address the alleged safety risk, which is the individual. If someone is truly a threat to themselves and others, removing firearms without taking the person into custody or providing mental health care does nothing to stop that person from harming themselves or others by using other available weapons.”

Specifically, the law provides a procedure allowing family or household members, a chief law enforcement officer, a mental health professional, a city or county attorney, or a guardian to petition for an “extreme risk protection order,” which would prohibit the respondent from possessing firearms for up to one year.

Any person who violates an extreme risk protection order is guilty of a misdemeanor and is prohibited from possessing a firearm for five years. After the order – and any extensions – have expired, the subject of an extreme risk protection order must prove at a court hearing, by clear and convincing evidence, that the person poses no danger of bodily harm to themselves or others.

Any person who files a false petition for an extreme risk protection order is guilty of a gross misdemeanor.

In addition to the safety issues not addressed in this new law, Fogelman is troubled that taking property without a warrant and due process, especially property that is explicitly protected by the Second Amendment of the U.S. Constitution, violates a person’s civil rights. The law also potentially puts law enforcement in harm’s way by requiring them to seize firearms from people in crisis who may not know that an Extreme Risk Protection Order has been levied against them.

Fogelman noted that advocates for red flag laws claim they prevent suicide; however, the CDC National Center for Health Statistics data shows that in the 19 states with red flag laws, the suicide rate continued to climb in every state except Nevada, where the suicide rate had already been declining for years prior to its enactment in 2019.