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Seven states have enacted “red flag” laws this year, continuing a demonstrable trend since the Parkland shooting. Now, a total of twelve states, including California, Connecticut, Delaware, Florida, Indiana, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington, have “red flag” laws on the books.  These laws allow law enforcement officials and family members to seek a court order temporarily preventing persons who are alleged to pose a threat to themselves or others from purchasing or possessing firearms.

Most recently, on July 3, Massachusetts Republican Governor Charles Baker signed HB 4670 (An Act Relative to Firearms) into law.  Initially introduced as HB 3610 (later changed to HB 4517, then HB 4539), HB 4670 will allow family or household members to petition the courts for an extreme risk protection order based on allegations that the person poses a threat to themselves or others.  A District Judge can then order an individual’s firearms to be immediately seized, with the individual not being entitled to a hearing until ten days after his firearms have been seized – a process that curtails the individual’s due process rights.

At least seven other states, including Illinois, Michigan, North Carolina, Ohio, Pennsylvania, Texas, and Utah, are considering such laws.  Some of these states are close to enacting “red flag” legislation.  For example, in Illinois, House Bill 2354 (Lethal Violence Order of Protection Act) recently passed both the House and Senate. HB 2354 was sent to Republican Governor Bruce Rauner for his signature on June 28, although he has not yet indicated whether he will sign it.  HB 2354 would permit law enforcement officials or family members to seek a court order preventing a person from purchasing or possessing a firearm if the person is alleged to pose a risk to himself or others.

The continued proliferation of “red flag” laws poses a serious due process risk by allowing an individual’s firearms to be immediately seized without the right to a prior hearing.

IRS Circular 230 Disclosure: As required by U.S. Treasury Regulations, we advise you that any tax advice contained in this communication is not intended to be used for, and cannot be used for, the purpose of avoiding penalties under the United States federal tax laws.

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