Among first states to ban red flag laws, Wyoming tests its prohibition’s constitutionality

Wyoming became one of the first states in the nation to ban red flag gun laws when Gov. Mark Gordon signed new legislation into law last week. 

Senate File 109 – Prohibit Red Flag Gun Seizure Act says no local government, agency or police department can implement or enforce any rule that keeps a Wyoming resident from firearms or ammunition unless that gun owner meets certain criteria. 

It also bans using funds from Wyoming or the federal government to implement red-flag gun seizures. 

“What we’re doing is we’re prohibiting law-abiding citizens from having their guns taken away without due process,” bill sponsor Sen. Bo Biteman (R-Ranchester) said on the Senate floor. 

Nationally, 21 states have passed red flag laws, according to the White House. Those typically enable police — and sometimes family, colleagues or medical professionals — to ask a judge to temporarily remove someone’s access to firearms if that gun owner is believed to be a risk to themselves or others.

In Wyoming, there was extremely broad legislative support for banning red flag laws, but some representatives questioned the constitutionality of the bill language, attempting many times to amend it. Those attempts had mixed results. 

Gov. Mark Gordon touted his “fervent” support for the Second Amendment in signing several laws this session, including SF 109. (He also vetoed a ban on most gun-free zones in Wyoming, citing state constitutional concerns.)

Coincidentally, the day after SF 109 went into law, the Biden administration announced more support for red flag legislation, including the launch of a National Extreme Risk Protection Order Resource Center, “which will support the effective implementation of state red flag laws.”

“Keeping students safe from gun violence in their school communities is a top priority for the Biden-Harris Administration,” a White House press release stated. 

Bill history and details

Senate File 109 flew through the Senate, passing the floor unanimously. Not a single person testified against the bill committee hearings, just asking for some changes here and there. 

Those successful changes included adding exceptions to the gun seizure prohibition. That is, they wanted to add to the list of people whose guns can be taken away. 

Right now, the list of who can have guns confiscated by the government includes people convicted of felonies, found legally incompetent, committed to a mental institution or involuntarily hospitalized, in the U.S. illegally, who used the firearm in a serious poaching crime, who’ve been dishonorably discharged from the U.S. Army, convicted of certain crimes (like assault, battery and child abuse), is a fugitive, is subject to a protection order, or can’t have firearms and ammunition because of parole or probation conditions.

But when SF 109 got to the House floor, things got complicated. A key issue was the question of constitutionality. 

Unlike Oklahoma’s ban on red flag laws — the first in the nation — Wyoming’s ban specifically says federal red flag laws can’t be implemented or enforced by anyone. That includes the federal or state judiciary in Wyoming. 

And lawmakers gave the ban teeth.

State agencies, political subdivisions or police departments that employ someone who “knowingly violates” the act and enforces a red flag gun seizure against a resident are liable for damages “in a civil action before the district court in which county the red flag gun seizure was enforced.”

Each violation can cost up to $50,000. 

Beyond that, individuals can sue to “enforce the provisions of this act.”

“What we’re doing is we’re prohibiting law-abiding citizens from having their guns taken away without due process.”

Sen. Bo Biteman (R-Ranchester)

Minority Floor Leader Mike Yin (D-Jackson) asked the House what would happen if judges, themselves, violated the statute.

“Let’s say the Supreme Court of Wyoming issued a finding saying that red flag seizure laws on the federal level were legal,” Yin said. “Who defunds the Supreme Court?”

Some lawmakers were concerned that the rules applying to federal statutes and judges went too far. 

That included Rep. Bob Nicholas (R-Cheyenne), who initially suggested six amendments to the bill. Only one passed, and didn’t include his efforts to get federal statutes and judges out of the bill.

“Never in my history of being in the Legislature have we taken any action that reverses or limits the power of our courts to make decisions and make findings based upon the facts presented in front of them. Never,” he said. “We’re telling court judges how they have to rule on a particular case.”

Rep. Dan Zwonitzer (R-Cheyenne) also stood to talk about the U.S. Constitution. 

“I appreciate Article 6 of the U.S. Constitution that [says] the Constitution is the supreme law of the land, and then federal laws, and then state constitution and then state laws,” he said.

But members of the Freedom Caucus said sometimes federal laws violate the U.S. Constitution first. 

“Federal law is not the Constitution,” Rep. Jeanette Ward (R-Casper) said. “They are not the same thing. Occasionally the federal government makes laws that are not constitutional and are later overturned by the courts.”

Rep. Ben Hornok (R-Cheyenne) added that the state needs to draw the line somewhere in pushing back against the feds. 

“In Wyoming, are we going to stand up for ourselves when it comes to gun laws, or are we going to let the federal government figure out what they’re going to do for us and we abide by their statutes?” he asked. 

During Nicholas’ failed attempts to strip the judiciary and the federal government out of the bill, members of the Freedom Caucus repeatedly called for “the ayes and noes,” which identify which individuals voted for or against an amendment.

Usually, this doesn’t happen for amendments: They just pass or don’t.

Zwonitzer felt they were a form of intimidation to get Republicans to vote against amendments that were good-faith efforts at improving the bill. As such, he issued a protest of the House, something that has no force but is noted in the chamber’s journal. 

“We are now weaponizing the process by calling for the ayes and noes on each one of these amendments, right?” he said. “With three lobbyists up in the north gallery staring over us with clipboards taking photos of every vote: It’s intimidation … I do think it’s important that we restore some civility to this institution and not weaponize it against our own members.”

Ultimately, the bill passed the House 54-8. 

The context

There have been no widely reported instances of law enforcement agencies or local governments enacting red flag gun seizure rules in Wyoming, so this new law likely won’t change much in the state.

However, the discussion in Wyoming is part of a larger national conversation about how to prevent gun suicides — guns are the leading method for these deaths — and stop mass shootings.

Some research has shown that red flag laws — also known as risk-based firearm seizure laws — can reduce gun suicide rates. 

“Indiana’s firearm seizure law was associated with a 7.5% reduction in firearm suicides in the ten years following its enactment, an effect specific to suicides with firearms and larger than that seen in any comparison state by chance alone,” researchers found. “Enactment of Connecticut’s law was associated with a 1.6% reduction in firearm suicides immediately after its passage and a 13.7% reduction in firearm suicides in the post–Virginia Tech period, when enforcement of the law substantially increased.”

Still, the researchers found that Connecticut’s estimated reduction in gun suicides “was offset by increased nonfirearm suicides.”

Wyoming possesses one of the nation’s highest suicide rates. 

Meanwhile, in Maine, leaders have had some of their own conversations about the state’s “yellow” flag law after an Army reservist shot and killed 18 people following warning signs of his mental illness. 

That state’s law, crafted with help from a gun-rights group, was passed as a measure that’s less strict than red flag laws while intended to prevent tragedies. There has been more use of the law since the shooting, according to ABCNews, but law enforcement argued the law’s cumbersome and time-consuming processes hampered their abilities to prevent the shooting in Lewiston, Maine.  

Wyoming’s new law does not list signs of severe mental distress as a reason to remove someone’s firearm. Officials could only remove their guns if that person is committed or involuntarily hospitalized.