Gun politics are tricky at the Minnesota Legislature. Why DFLers hope they can pass a ‘red flag’ law

Conscious of gun regulations’ tricky politics, the DFL-controlled Legislature has advanced a more conservative gun agenda than the one proposed by Gov. Tim Walz so far this legislative session.

Even though many in the party campaigned last year on imposing new restrictions, gun limits remain controversial among some DFLers, including lawmakers in more conservative or rural districts. But Democrats have advanced a few firearms bills, including one key priority: a “red flag” policy, also known as an Extreme Risk Protection Order or ERPO.

The legislation would allow a judge to take firearms away from someone deemed a threat to themselves or others, and supporters argue similar laws around the country have stopped mass shootings, suicides and other gun violence. But there’s another important reason it’s a focus of Democrats: The bill might be one of the few gun proposals that could actually pass the narrowly-divided House and Senate, where lawmakers cite favorable polling and the adoption of red flag laws in even some conservative states like Florida as reasons why the policy could become law in Minnesota.

It’s nevertheless unclear if the measure will actually pass. One key DFL lawmaker — Sen. Grant Hauschild, DFL-Hermantown — has been quiet about whether he supports the bill. With a one-vote advantage, the DFL would need all 34 of its senators to support the bill for it to pass, or else would have to find GOP votes. 

The ERPO proposal has already drawn sharp opposition at the Capitol from elected Minnesota Republicans and gun rights advocates, who don’t appear to be swayed by Florida’s move. And the American Civil Liberties Union of Minnesota, which is often aligned with Democrats on issues, has expressed concern with the red flag effort. Critics argue the measure will either lead to the unjustified removal of a gun without due process rights or result in unnecessary and dangerous police intrusions.

What the ‘red flag’ bill does

The bill so far has cleared two committees in the Minnesota House but hasn’t been heard in the Senate.

Under the most recent version of the policy, certain people — including police, prosecutors, mental health professionals and some family members — can petition a judge to have a person’s gun seized. That begins a complicated legal process.

First, if a judge decides there is probable cause that the gun owner poses a significant danger to others or is at immediate and present risk of suicide, the court can issue a 14-day “emergency” order to remove the firearm. The person in question would not give input on the temporary decision, which is a major point of contention in debate over the bill.

Then, a judge would consider whether to issue a longer order — initially lasting as long as a year but subject to another year if later extended — after more input, including by the gun owner. There is a similar legal standard for the full extreme risk order.

The policy is modeled after domestic violence protection laws, and was first implemented in Connecticut in 1999. But it has since spread across the country. There are 19 states that have some form of a red flag policy, as well as Washington, D.C.

State Rep. Kelly Moller, a DFLer from Shoreview who chairs the House’s Public Safety Finance and Policy Committee, said the ERPO laws are more popular than some other gun bills in part because they focus on removing guns from people experiencing a mental health crisis. 

“It’s not just about mass shootings,” Moller said in an interview before the legislative session began. “Some of the states that have successfully enacted it have also seen how beneficial it is to prevent suicide deaths.”

Maggiy Emery, executive director of the advocacy group Protect Minnesota, said 70% of gun deaths last year in Minnesota were suicides, and over the last decade have averaged about 80% of gun deaths. Firearms have also historically been the most common way Minnesotans have died by suicide.

If you or someone you know is struggling, help is available by calling 988, the Suicide and Crisis Lifeline.

There is research that suggests extreme risk orders do prevent some gun violence, including mass shootings and suicides. But only if they’re actually used. An investigation by The Associated Press published last fall found the red flag laws are barely used in many states. Opponents of red flag bills have also argued that overall suicide rates in states with such laws haven’t dropped.

In Minnesota, the red flag bill has drawn support from the Minnesota County Attorneys Association, which represents prosecutors across the state, and the Minnesota chapter of the National Alliance on Mental Illness.

Sue Abderholden, executive director of NAMI Minnesota, said the bill could advance one strategy in suicide prevention known as “means restriction.”

“This is when we restrict access to lethal means to prevent someone from taking their own life,” Abderholden said during an early February hearing in Moller’s committee. “Time is key to preventing suicide.”

Abderholden also said research shows when one method of suicide is taken away from someone, the person doesn’t necessarily pursue another.

The red flag law has flipped some common alliances at the Legislature. The Minnesota Chiefs of Police Association supports the bill.

The Minnesota Police and Peace Officers Association, which represents frontline officers and has clashed with DFLers in recent years, backs the concept, though the organization wants police to be better involved in the petition process as an officer-safety measure, said executive director Brian Peters. The state’s association representing sheriffs is neutral on the bill.

Where opposition lies

Meanwhile, the American Civil Liberties Union of Minnesota, a frequent DFL ally, cautioned in a written letter against what it said would be an expansion of state power and increased authority to “enter people’s homes and infringe on their rights.”

In practice, most extreme risk petitions across the country appear to be filed by law enforcement. After an emergency 14-day order is granted in Minnesota, police would carry out a search warrant to seize any guns “as soon as practicable,” the bill says. In the case of a longer order, the bill says people are asked to voluntarily surrender their firearms. But police can carry out a search warrant for the gun if the person refuses.

“Warrants relating to firearms understandably involve higher risks, which has been the justification for use of no-knock warrants,” wrote Julia Decker, policy director for the ACLU of Minnesota. “Amir Locke’s killing illustrates the limitations of a warrant as a safeguard, and the high-stakes situation this kind of entry can create.”

The National Rifle Association and other gun rights advocates have also opposed the red flag measure. 

Rob Doar, senior vice president of government affairs for the Gun Owners Caucus in Minnesota, told MinnPost his organization’s main concern is with due process. A person’s gun — and their constitutional rights to a firearm — could be taken away under an emergency order without the ability to present their side of the story, Doar said.

And though the bill would make it a misdemeanor for someone to present a petition with false information or with the intent to harass or abuse anyone, the Gun Owners Caucus and Republican lawmakers have raised concerns that people could file extreme risk orders in bad faith to get back at someone they dislike.

Doar said whether a petition is filed in good faith or bad faith, it’s important to have an “adversarial hearing where the person who is being accused has the opportunity to provide a defense to any of those accusations before their property is actually seized.”

One study of extreme risk law practiced in King County, Washington, found judges granted every petition for a temporary ERPO in 2017 and 2018. In about 10% of those cases, the court later denied a longer one-year order because they found the legal standard wasn’t met.

Doar has instead advocated for legislation that would allow people to voluntarily surrender guns if they’re dealing with a mental health crisis. 

Republicans echoed Doar’s concerns.

“I think the ambush part of this with the ex parte hearing is what gives me the biggest concern and what I feel will be putting law enforcement at the biggest risk in dealing with these people in the future,” Elk River Rep. Paul Novotny, the top Republican on the House Public Safety Finance and Policy Committee, said at the early February hearing.

Separately, Doar said people can be hospitalized for psychiatric help through a 72-hour emergency hold. That might be a more appropriate venue for someone truly in crisis, Doar said.

Abderholden, from NAMI, said those holds are difficult to get if someone is “suicidal and not actively engaged in hurting themselves.”

“When the hold is over you can go buy a gun and you can’t take away guns,” she said in an email.

Can the DFL pass bills with narrow majorities?

The red flag law is not the only gun priority for top Democrats. 

In addition to ERPOs, Walz’s budget plan includes proposals to extend background checks to private-party sales, raise the minimum age to buy “military-style” rifles from 18 to 21 years old, ban high-capacity gun magazines, and measures to require firearm owners to report lost and stolen guns to local police and promote safe storage of guns. 

The House has advanced four gun bills and Senate lawmakers haven’t yet had a hearing on gun measures, though St. Louis Park Sen. Ron Latz, a DFLer from St. Louis Park who chairs the Senate’s public safety committee, said he expects to start moving the legislation in the coming weeks. But age restrictions and the high-capacity magazine ban appear less likely to move forward. 

That may be because of narrow DFL majorities — only two votes to spare in the House and one in the Senate — and likely immense pressure on Democrats in swing districts over the bills. For example, one House member in a swing district, DFL Rep. Dave Lislegard of Aurora, was endorsed by the NRA during the 2022 campaign. (Walz himself once had an A from the NRA when he served in Congress.)

Back when Democrats last had full control over state government in 2013 and 2014, lawmakers failed to pass major gun limits. Tom Bakk, the former DFL Senate Majority Leader who later became an independent, said gun legislation was hard to pass because new restrictions are opposed by many in more rural areas, where Democrats held a fair amount of seats. 

The DFL has far fewer rural lawmakers now, and the growing number of suburban Democrats have been more open to gun regulations. That’s a major reason Democrats have a better shot than ever to pass stricter gun laws. But at least two DFL Senators previously expressed some doubt about new firearm limits.

Sen. Rob Kupec of Moorhead said in November, after the election, that he had seen some evidence that red flag laws are effective, but was concerned with the details of any bill and would want to discuss the issue with police and people in his district.

Hauschild told MinnPost on the campaign trail last year that he’s “not somebody that is favorable towards major gun control issues” and would want to learn more about the specifics of any red flag proposal. Hauschild didn’t respond to a request for comment last week.

The Gun Owners Caucus has been poking Hauschild on social media for his unclear stance on gun policy, and Republicans have been rallying opposition to the gun bills in the House, including by noting the ACLU concerns at the Legislature. 

Moller, the House DFLer, said before the legislative session began that she hoped bipartisan support — at least in other states — and some police backing would help make the red flag law more of a possibility in Minnesota. And she said polling shows such a policy would be supported by the electorate in Minnesota.

A MinnPost poll conducted in June following the Uvalde mass shooting found 64 percent of 1,551 likely general election voters were strongly or somewhat in favor of red flag laws.

Democrats have also brought people to the Capitol to testify about their experience with gun violence to back up their proposals. One is Rachael Joseph, a gun control advocate whose aunt Shelley Joseph-Kordell was shot to death at the Hennepin County Government Center in 2003. Joseph said the now-incarcerated Susan Rae Berkovitz had displayed “erratic, terrifying and dangerous behavior,” and stalked her aunt. 

“Had Shelley been able to go before a civil court to seek an extreme risk protective order … her killer may have never gained access to that gun,” Joseph said.

State Rep. Dave Pinto, a St. Paul DFLer who has supported the red flag proposal for years, also said the measure is focused on people who might be dangerous, rather than impacting all gun owners. The broader gun measures have proven less popular. “We as a society have identified some people as showing their dangerousness,” Pinto said. “What this doesn’t do is change who is entitled to have access to guns, it limits the access of those people to guns.”

Even Bakk said he previously supported red flag laws for similar reasons. But he has since cooled on the idea in part because of MPPOA concerns in the past. Hauschild now holds Bakk’s northeastern Minnesota seat at the Capitol.

“If I was the leader with 34 votes I’d be pretty careful about taking on things that are very controversial in those members’ districts,” Bakk said of the red flag bill and the background check proposal. “In my district, it’s a pretty strong pro-gun district, probably one of the stronger pro-gun districts in the state. I wouldn’t advise my replacement (Hauschild) to vote for it.”