Committee hears details on Red Flag law

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FRANKFORT, Ky. (KT) - The Interim Joint Judiciary Committee heard testimony Friday on proposed legislation dealing with Extreme Risk Protective Orders, also knows as a Red Flag law.

The bi-partisan measure, co-sponsored by Sens. Paul Hornback, R-Shelbyville and Morgan McGarvey, D-Louisville, would allow for guns to be temporarily taken from someone deemed to be a risk to himself or others, due to a mental emergency.

“I’m a gunowner, a hunter, I’m a strong proponent of the Second Amendment, but I think society has changed,” Hornback told the committee. “But violence, dealing with mental illness, reaching out to those who need help, that’s changed; and we need to talk about it.”

Hornback said due process is important to any ERPO process, addressing concerns raised by Rep. Savannah Maddox, R-Dry Ridge. Maddox, said taking firearms away from someone who hasn’t committed a crime would violate, “at a bare minimum, three constitutional rights in the U.S. Constitution alone.”

McGarvey noted 17 states have passed such legislation and described extreme risk protective orders as, “A time out, for people who could harm themselves, could harm others.”

McGarvey said they are still working on who could seek an ERPO, but it would be limited to law enforcement officers and possibly very close family members.

“They could go to a court and ask for a petition, which the judge would have to rule has merit,” McGarvey said. “Then, after an order has been issued, a hearing is held by the court to see f people are entitles to some relief.”

Jeremy Mull, prosecuting attorney for Clark County, Indiana, told the committee his state has had such a law since 2005. “That was passed with broad bi-partisan support,” he said. “That law has been challenged in court on constitutional grounds, and the Indiana Court of Appeals and the Supreme court have upheld the constitutionality of our law.”

He noted there is a lot of due process under their law before someone’s guns are taken. “A police officer has to make a probable cause determination similar to an arrest, a prosecutor has to file an action, and then a judge has to make a finding of clear and convincing evidence that a person is dangerous. So, there’s essentially three levels of review in that law.”

Whitney Austin, who was shot 12 times outside the Fifth-Third Bank Building in downtown Cincinnati last year and formed the Whitney/Strong Foundation as a result, also testified in favor of the measure.

“What do you do when you cannot make sense of something like this? For me there was one answer, fight, to protect others from gun violence in all of its many forms,” Austin said.

Art Thom with the National Rifle Association noted that Kentucky already has EPOs and IPOs, “These are avenues that judges already have to be able to remove firearms from folks that they deem dangerous to themselves and others. It’s already in place.”

Hornback and McGarvey say they are still working on fine-tuning their proposal, before putting it into bill form for consideration by the 2020 General Assembly.

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