The Red Flag Shuffle

I don’t know what kind of threat the deputy who knocked on my door at 10:50 p.m. felt he faced from a guy who rented a house in one of Greater Nashville’s premiere Stepford subdivisions, but the explosive pounding on the door indicated he thought it was substantial. I slowly cracked the door in case this interloper wasn’t who he claimed, and the officer demanded I take my hands out of my pockets and keep them visible. He was there to serve me an order of protection summons. 

This must have been what my ex’s father meant by “ruining my life” when he appeared at my door six weeks before in a last-ditch attempt to keep me from filing a lawsuit over the thousands of dollars his daughter owed me. “This is a big deal. They will take your weapons,” he threatened as if I’d been stockpiling for a standoff with the ATF. He was right, though: a lawyer I knew from church told me that if things went sideways, the ruling would be public record—not a great look for a college professor. 

That night was my first thought when, following the Covenant tragedy, Governor Lee released a plan to implement red flag policies modeled on the existing law that led to my own experience with the police. As I knew all too well, Tennessee’s Order of Protection Act that permits weapons seizures could itself be easily weaponized.

Over the past five years, twenty-one states have implemented red flag laws to combat America’s mass shooting epidemic. Florida became the unlikely trial balloon for the legislative trend’s widespread adoption in the wake of Parkland, when then-governor Rick Scott signed it into law. His successor, Ron DeSantis, has never second-guessed these policies in his bid for conservative street cred, even though the majority of Red State leaders have routinely expressed their antipathy toward them. 

The term “red flag” has circulated widely among activists and politicians for years. However, the legal definition of what gun control groups call extreme risk laws remains amorphous. “A red flag law is whatever that particular legislature defines it as,” Dan Zelenka, attorney and the president of the Louisiana Shooting Association, told me. “It’s sort of a misnomer. In essence, it's just a protective order for a person not convicted of a crime that takes their rights to possess or bear arms.” 

For Knox County Mayor Glenn Jacobs, issues of due process, rather than oft-cited Second Amendment violations, are the primary reason why Tennessee should avoid following the national zeitgeist. According to Jacobs, the general problem with red flag policies is that “basically, you’re reported as a threat, and the police can seize your guns. But you don’t go before a judge. There’s no adjudication, and that’s the issue.”

Zelenka has similar concerns but cautions that such laws could shield authorities from the consequences of additional civil liberties violations. “There’s no warrant, but red flag claims allow them [the police] to go in incidentally. Then, they could act on whatever they find,” he said. “I can’t get a warrant for drugs, but we can get your three-times removed ex-girlfriend to say you threatened her with a gun or were a dangerous person.”

With Louisiana embroiled in its own yearslong red flag debate between a Republican supermajority and Democratic governor, Zelenka quickly noticed the parallels to the Republican in-fighting in Tennessee between Gov. Lee and an increasingly hard-right legislature. When Lee issued his proclamation on August 8th, for next week’s special session, he did not specifically reference “red flag” or “extreme risk.” Instead, he mentioned “temporary mental health orders of protection.” 

Of the seventeen firearms-related topics Lee identified when setting the session’s parameters, his description of the order is six times longer than anything else on the agenda. According to the proclamation, any iterations of red flag policies,

“...must be initiated by law enforcement, must require a due process hearing, must require the respondent to undergo an assessment for suicidal or homicidal ideation, must require law enforcement to prove its case by clear and convincing evidence, must require that an order of protection be reevaluated at least every one-hundred eighty (180) days, and must not permit ex parte [one-sided] orders.”

If Lee’s detailed outline seems like the work of a governor who doth protest too much, it’s because the legality and efficacy of red flag laws, by any name, have led to a host of problems for states that have adopted them.

For example, New York’s passage of extreme risk protection policies has resulted in a head-spinning increase, from 538 orders issued in 2021 to 4,257 just a year later. Though Gov. Kathy Hochul praised the policy as allowing “us to not solve a crime after the fact but to prevent the crime,” two state supreme court justices have ruled it unconstitutional. Meanwhile, Michigan Gov. Gretchen Whitmer followed Hochul’s lead last May, much to the chagrin of local sheriffs, who have refused to enforce the law as it makes its all but certain journey through the courts. 

While Gov. Lee’s intentional wording appears to sidestep some of these constitutional pitfalls, Jacobs questions the need for new legislation: “Obviously, no one wants people that are dangers to themselves or anyone else to have guns or easy access, but there are already things on the books like Baker laws that provide for adjudication.” The Republican mayor is referring to the colloquial name for the Florida Mental Health Act that Democratic state representative Maxine Baker spearheaded half a century ago.

Since the 70s, most states have followed suit and passed their own versions of the legislation including Tennessee, which has long provided clear procedures for involuntary commitments that family, friends, educators, police, and medical professionals can initiate. However, for Zelenka, revision of such laws to focus more explicitly on gun safety could undermine the policy’s purpose. “What you’re going to end up with is some amount of time between when you have enough to issue the notice, and you have enough evidence to do the hearing. So you’re talking about a couple of weeks. What does that trigger?”

When lawmakers have been too cavalier with new red flag laws, they have found themselves orchestrating violent altercations that may otherwise never have occurred. Both Jacobs and Zelenka referenced a 2018 case in Maryland in which officers’ surprise delivery of an extreme-risk order led them to kill its recipient. “Red flag laws provide no assurance for people who may be in a mental health crisis,” Zelenka said.  “The police never show up at 10 a.m. They show up at 5 a.m. They show up at midnight. They show up at some time when you’re disoriented with a piece of paper that says they can take your property away from you. How does this help someone in a mental health crisis?” Jacobs emphasized that such legislation provides additional opportunities to put officers in danger: “We need to minimize –especially in this day and age– putting police and civilians in situations like that when you are in a confrontation or adversarial encounter.”

A larger concern for those opposed to red flag strategies is an increase in the abuse of existing laws that lead to encounters such as the one I endured all those years ago. As Jacobs told me, “If someone has a vendetta or an ax to grind, they can report you to police and say, ‘You need to go take his guns.’” I can attest that Jacobs is correct. Yet, what surprised me most about my own experience was state authorities’ apathy toward such flagrant misuse of the judicial system

My ex’s father often interacted with the court system through his work, which primed him to wreak havoc on me. Like the Sumner County judge presiding over my case, he knew the order against me would never stand. I’d just returned from a weeklong trip to an out-of-state conference, hadn’t attempted contact with my ex since we ended things, and, unequivocally, had never threatened or exhibited violence. 

But he also knew that his manipulation of the law could potentially intimidate me into silence. He didn’t have to win the case; just filing it would be a surefire blow to my already precarious finances that might just lead me to abandon the whole endeavor. The system was never going to punish his daughter for a false report because it was clear to all involved he was the instigator.

I may have won the case handily, but in the process, I’d amassed thousands in legal fees that eclipsed the sum under dispute in the first place. Gov. Lee’s meticulous definition of his proposed orders neglects punishment for false claims that could have prevented my own brush with the legal system. Notably, the governor has never mentioned shoring up the related laws on the books that inspired his new proposal so he could protect Tennesseans from being targeted the way I was.

Regardless of potential abuses, the red flag mania sweeping the country has predictably led to reams of research touting the laws’ positive effects. The Center for Gun Violence Solutions at Johns Hopkins touts a list of studies showing the astounding impact of red flag laws on suicides and homicides.

However, none offer proof that the policies themselves were directly responsible for preventing specific attempted mass shootings. Rather, most research never goes beyond citing a need for public awareness. Limited knowledge of the policy has hamstrung recent red flag efforts in some states like Colorado, where legislators promised a surefire solution that has, thus far, resulted in only one invocation of the law. Even in this gun control-friendly climate, online news sites abound with listicles recounting times when red flag failed. 

Though he supports the idea of red flag in theory, Frank Smyth, author of The NRA: The Unauthorized History, believes such policies are about as effective as fixing potholes to prevent traffic fatalities. “The things that they want to do wouldn’t make much difference anyway—even if these minor steps were to all pass,” Smyth said.

Smyth likely has little in common politically with Jacobs and Zelenka. However, he is an unabashed gun owner with a license in New Jersey, partial to a Glock since his days as a Gulf War correspondent and investigative journalist covering organized crime. He also expresses frustrations that the gun debate is chocked full of half-measures rather than spirited conversations about how robust registration processes for each firearm purchase–like those implemented in his home state–relate to the Second Amendment and mental health inquiries.

“If it’s a hassle or if there’s paperwork involved, it’s gonna feel like going to the DMV. No one likes going to the DMV, but no one is arguing that we shouldn’t get licenses to drive cars,” he told me.  He also added that no court has found New Jersey’s approach unconstitutional, something one can’t say about red flag laws in neighboring New York. 

The result, Smyth hopes, would be a gun culture akin to that of Israel or Switzerland, where firearms are widely owned, but safety is paramount. “If registration could be passed,” he theorized,” the United States could be the country with the largest gun ownership in the world and reduce gun violence, but people would still be able to protect themselves and have guns for recreation and sporting purposes.” 

Smyth’s deep dive into NRA literature dating back to Reconstruction raises numerous questions about the lobbying group’s lack of transparency, as well as its history of surreptitiously funding pro-gun academic research. However, even Smyth has never made a statement against the nation’s top gun lobby as bold as Gov. Lee’s comment—that it “prefers to round up mentally ill people.”

To drum up support for the special session among his colleagues, Lee’s team distributed a memo last spring, citing the governor’s orders as less restrictive on individual rights than any legislation the NRA has proposed. He may be the first Republican in history to accuse the organization of being lax on civil liberties.

After evaluating Lee’s proposals, Zelenka gave the governor some credit, though his reservations about the measures’ necessity remain. “It sounds like he is trying to touch all the things that are important to due process,” he said. “But when I look at it, I’m not quite sure how they are going to write it, and I’m equally unsure of how they can make it workable.” Such may be why, according to the governor, he can’t find a Republican legislator to sponsor his proposal. 

The devil may well be in the details for Gov. Lee as he fights with 2A purists and the conservative press. But, somewhere in the state, someone is getting that midnight visit from the police. And, a few months from now when that person’s case finally reaches a judge, they, too, will realize that legislative wins for either side mean little when they pave the way for a knock at the door from an armed government official with carte blanche to destroy your world.

The Pamphleteer attempted to contact several state legislators for this article from both sides of the aisle. None could be reached for comment.