Is this bill the precursor to a red flag law?

By Philip Baron, MBA

On Friday, August 26, 2019, the Joint Judiciary Committee met in Casper, Wyoming, for their second interim meeting of the summer. The most controversial issue discussed was the proposed legislation entitled "Reporting Mental Illness Adjudications to Firearm Dealers." This bill is a part of the national "Fix NICS" (National Instant Criminal Background Check) campaign promoted by The National Shooting Sports Foundation.

The National Shooting Sports Foundation is a trade association for the firearms industry in the United States, representing firearm dealers, manufacturers, and distributors. They support the bill as a way for firearm dealers and distributors in Wyoming to verify if a person has been adjudicated as a mental defective when a background check is done on a person buying a gun. Currently, the State of Wyoming does not report these records to the background check system (NICS).

To be adjudicated as a mental defective means the court has determined that a person, as a result of mental illness, incompetency, condition, or disease is a danger to himself or others or lacks the mental capacity to contract or manage his own affairs. This can be ordered by the court at a hearing within a 72-hour holding period by law enforcement if they deem that a person is a danger to themselves or to others.

Under federal law, there are nine classes of individuals who cannot possess firearms. One such class consists of persons who courts have found to be mental defective or involuntarily committed to mental healthcare. This bill seeks to do two things. One, it aims to allow a person who has been cleared from being mentally defective by a judge to have their records expunged and to regain their gun rights. Two, it seeks to provide a system for collecting and reporting mental health prohibitor information (records of those who have been adjudicated as a mental defective) to the FBI for use with the NICS. The second goal is the most concerning.

When a person walks into a store in Wyoming to buy a gun, they have to fill out the Firearms Transaction Record, also known as ATF Form 4473. Question 11(f) on the form asks: "Have you ever been adjudicated as a mental defective or have you ever been committed to a mental institution?" Wyoming does not provide this information to the background check system, so regardless of the answer to the question, the seller who is running the background check cannot verify this question.

Several objections to this bill were raised in the August Committee meeting, with some saying that this bill violates a person's Second Amendment right to keep and bear arms and that this bill could be the precursor to a red flag law like the one passed this Spring in Colorado. Nephi Cole, a representative of The National Shooting Sports Federation, was quick to say, "I want to distinguish this [bill] from red flag laws that deny an individual due process." The Fifth Amendment states that no one shall be "deprived of life, liberty or property without due process of law." The government must operate within the law and provide fair procedure in the legal system.

In the case of a red flag law such as Colorado's recent Extreme Risk Protection Orders Act, family, household members, law enforcement, and even those that have a limited interaction with a person, can petition for a court order to temporarily take guns away from an individual deemed to be at significant risk of hurting themselves or others by having a firearm. The person is served a notice of the protection order by law enforcement, and a judge makes that decision without the person in question being present, which is a violation of a person's right to appear in a trial under due process of the law in the Bill of Rights. While the decision to confiscate can be determined with only a preponderance of evidence, the accused must provide clear and convincing evidence of innocence to regain ownership of their firearms.

The argument made by The National Shooting Sports Foundation is that red flag laws do not treat people equally under the law, therefore; they are not following due process. The proposed legislation here in Wyoming does not function in anyway like a red flag law. The purpose of the Wyoming bill is to prevent certain individuals from purchasing a gun through a court petition process.

Those in opposition of this bill claim that this proposed legislation leaves open the door for potential red flag laws in the future. The fear is that if this information is reported to the Federal government that someday a law could be passed requiring the reporting of more information than just mental adjudications and a law could be passed stating that "if we suspect you to be crazy we can take your guns."

Former State Senator Kit Jennings of Casper (representing himself), one of the sponsors of Wyoming's constitutional carry law, was concerned that this bill left some things open-ended. He wanted the bill amended to clarify that only a judge could adjudicate a person as mentally defective (in some states boards and commissions are given this power). He also wanted clarification that the actions leading up to the adjudication do not mean the confiscation of that person's guns. In regard to confiscation of guns, Former Senator Jennings said, "I would ask that as you move forward and you ever talk about confiscation of my right to my guns under my God-given right to own them that you also take care of my gun."

Senator Jennings was also concerned that this law would lead to the possibility of the government, in the future, using the information contained in this database, to take your guns because you might commit a crime. The ultimate concern is that the scenario would play out like a scene from the movie Minority Report, where the government has a system to predict who might commit a crime and arrests them before they have done anything wrong.

Byron Oedekoven, of Wyoming Association of Sheriffs and Chiefs of Police, brought up a different issue, "If we [Wyoming] are found to not be compliant [with federal law]. Then those dealers will be forced to say that we cannot rely on the instant background check, [NICS] we would then have to go back to the waiting period for all Wyoming firearms purchases." This raises a concern that has been lost - what is the intention? This bill will force firearms dealers to comply with federal law and to report information to the federal government.

The debate still leaves open the question, should the State of Wyoming report information to the federal government that it is not currently reporting and, does this information leave the door open in the future for more government invasion into gun rights? These concerns are not unfounded. Laws are amended all the time and have an outcome that is much different than was intended. There are also constitutionality issues that are up for debate with legislation that may infringe upon a person's gun rights, as stated in the Second Amendment to the Constitution. What is clear is that the fix for an issue with the background check system in this bill has become about so much more.