Regular readers know I recently wrote about Red Flag Laws, the characteristics of such laws, and whether we may see them in South Carolina. If you did not see that article, or you want to catch up, you can find it here.
The ink was barely dry before the first Red Flag Laws were enacted in South Carolina. Columbia City decided to take it upon themselves and pass a Red Flag Ordinance at the municipal level.
Columbia Red Flag Law
What hallmarks of the Red Flag Laws did Columbia adopt? Let us take a close look and see. To start, it is worth noting that Columbia uses the language of “Extreme Risk Protection Order” in referring to their Red Flag Law. Perhaps the city believes this will be less inflammatory, or will not be recognized as quickly.
No Notice & Ex Parte Order
Under the City’s ordinance, the subject of a petition does not have to be notified until after an interim order is issued. Thus an ex-parte order can issue before a subject ever learns there is a concern.
No Cost to File
Columbia’s ordinance explicitly states there will be no cost to file a petition.
No Due Process
An interim order issues before the subject has notice. Thus his rights are removed before he can hire an attorney, cross-examine his accusers, or generally defend himself.
. . .a person’s rights can be removed because it’s more-likely-than-not that they will cause harm.
Fortunately, Columbia included a provision to provide legal counsel to those persons who qualify for a public defender in a criminal case. While this is a good measure, the guidelines to qualify for a public defender are quite stringent. Typically, if you have assets or earn above the poverty line, you will not qualify.
While we should recognize this language is an improvement over most Red Flag Laws, it does not rise to the level of protecting the rights of the accused provided in other mental health hearings in SC.
Relaxed Burden of Proof
Unlike criminal convictions, that require proof beyond a reasonable doubt, Columbia’s ordinance only requires proof by a preponderance of the evidence before issuing an interim order. In other words, a person’s rights can be removed because it is more-likely-than-not that they will cause harm.
For a permanent order, the city would require proof that is clear and convincing. This still does not rise to the level of beyond a reasonable doubt, which is necessary for a criminal conviction.
Return of Firearms
Columbia’s ordinance has language that firearms ‘relinquished’ to the police will be deemed abandoned and disposed of in accordance with SC state law. If that is not clear enough, provisions requiring the return of firearms after expiration of an order focus on a dealer and not the Columbia Police Department. It therefore appears likely that firearms will be lost, destroyed, or sold by the Columbia Police Department rather than returned to the rightful owner.
The Columbia City Council ignored South Carolina state law preempting local governments from enacting any “ordinance that regulates or attempts to regulate the transfer, ownership, possession, carrying, or transportation of firearms, ammunition, components of firearms, or any combination of these things.” SC Code Ann. § 23-31-510. This is not the first time Columbia has taken such action.
In 2015 Columbia passed an ordinance purporting to prohibit the possession of firearms near the capital. The measure was temporary and expired in a month, but that did not prevent the Attorney General of SC from weighing in and opining the ordinance was pre-empted and unenforceable.
Columbia also passed a purported ban on “bump stocks.” The legality of this ordinance however was made moot by executive action at the Federal level that redefined bump stocks as machine guns. (Currently the legality of such executive action is under litigation.)
For the reasons stated in the 2015 Attorney General Opinion, the Columbia “Extreme Risk Protection Order” is most likely pre-empted and will be struck down. But some unfortunate gun owner will have to be the guinea pig in what could prove to be costly litigation.
If you or a loved one is affected by the Columbia Red Flag Law, I am happy to help you defend your rights and recover your firearms. From simply working within the law for the most cost effective solution, to challenging the law on the basis of the SC Constitution and pre-emption, I can help you defend your rights. If this law affects you, do not hesitate to reach out to me.