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<i>Ian Ayres is a law professor at Yale Law School. Fredrick Vars is a law professor at the University of Alabama School of Law. They are authors of </i><a href="https://www.amazon.com/Weapon-Choice-Fighting-Violence-Respecting/dp/0674241096" target="_blank"><i>“Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights.”</i></a>

What would you do if a loved one were dangerously and illegally in possession of a gun? Would you do what Hallie Biden did?

President Joe Biden’s <a href="https://www.washingtonpost.com/politics/2024/12/01/hunter-biden-pardon/" target=_blank>surprise pardon of his son</a> on Sunday protects Hunter Biden from federal criminal liability for illegally purchasing and possessing a firearm, but it leaves unaddressed a related potentially criminal act committed by Hallie Biden, Hunter Biden’s sister-in-law and former romantic partner.

On Oct. 23, 2018, 11 days after Hunter Biden bought a .38 Colt Cobra revolver, Hallie Biden found the weapon and didn’t know what to do with it. She <a href="https://www.usnews.com/news/us/articles/2024-06-06/the-latest-hunter-biden-trial-jury-hears-testimony-from-former-gun-store-clerk" target=_blank>testified at trial</a>: “I didn’t want him to hurt himself, and I didn’t want my kids to find it and hurt themselves.” She drove to a supermarket in Delaware and tossed the gun in a dumpster.

“I realize it was a stupid idea now,” she explained, “but I was just so panicked.”

We should empathize with her position. What was she supposed to do? On the one hand, tossing the gun into a public trash can could have led to its accidentally or intentionally injuring or killing someone. (In fact, the weapon was quickly collected by a retiree searching the dumpster for recyclables who later gave the gun to police. No one was harmed.) On the other hand, the law provides no safe methods for taking a firearm away from a person who is in illegal possession of one and poses a present danger to themselves, you or your family.

Consider the tragic example of <a href="https://www.washingtonpost.com/opinions/2022/07/28/guns-california-abortion-texas/" target=_blank>Courtney and Joseph Irby</a>. On June 14, 2019, Joseph Irby was arrested and jailed on domestic violence charges for allegedly trying to hit Courtney Irby, his estranged wife, with a car. Though Courtney Irby obtained a domestic violence restraining order prohibiting gun possession against her husband, she was still <a href="https://time.com/5612834/florida-woman-arrested-guns-police/" target=_blank>“in fear of her life”</a> because he owned two guns, and she believed “<a href="https://www.washingtonpost.com/nation/2019/06/23/she-gave-her-estranged-husbands-guns-cops-they-arrested-her-theft/?itid=lk_inline_manual_12" target=_blank>he wasn’t going to turn them in</a>.”

When she retrieved his guns and brought them to the Lakeland, Fla., police department, officers, instead of thanking her for her service, arrested her for stealing her husband’s property.

In most jurisdictions, <a href="https://delcode.delaware.gov/title11/c005/sc03/index.html" target=_blank>including Delaware</a>, Hallie Biden could similarly have been prosecuted for theft or sued for damages by Hunter Biden because she removed the gun from his possession.

If you live in Delaware or <a href="https://www.everytown.org/solutions/extreme-risk-laws/" target=_blank>one of 20 other states</a> and know that a loved one owns a gun, you might file <a href="https://news.delaware.gov/2018/06/27/red-flag-legislation/" target=_blank>a “red flag” petition</a> to force the owner to relinquish the firearm to law enforcement. But to prevail, a petitioner must show that gun ownership poses “an immediate and present danger of causing physical injury to self or others.” And raising a red flag in this way also creates a risk that your loved one will be prosecuted — just as Hunter Biden has been. Even these emergency petitions take time, which can itself exacerbate risks.

Common sense suggests that we need to find ways for people like Hallie Biden and Courtney Irby to safely remove guns without risking criminal prosecution.

Some police departments <a href="https://www.hsph.harvard.edu/wp-content/uploads/sites/127/2012/09/Questions_about_Storing_Firearms.pdf" target=_blank>provide temporary storage</a> for firearms, but it is unclear whether such services would insulate people like Hallie Biden or Courtney Irby from prosecution. Moreover, many people would have good reason to fear bringing a firearm into a police department. People of color, the homeless and people with mental disabilities have been <a href="https://www.justice.gov/opa/pr/justice-department-finds-civil-rights-violations-phoenix-police-department-and-city-phoenix" target=_blank>victims of police discrimination and abuse</a>, and this history can make it difficult or impossible to trust that the police will receive a gun as intended.

Hallie Biden or Courtney Irby could also take advantage of services that allow you to mail in <a href="https://www.unwantedfirearms.org/" target=_blank>unwanted guns for disposal.</a> But permanently destroying property without permission from the owner or a judge is unlawful.

Something new is needed. States should mandate that police stations and gun sellers offer gun storage services, the former for free and the latter for a fee. Any legislation should immunize the person who uses these services so long as they believe in good faith that the gun possession was illegal or posed a danger. Allowing this limited form of self-help could protect potential victims of gun violence while preserving due process for gun owners.

While a great deal of effort has gone into enacting and strengthening red-flag laws, danger is not the only reason to remove a gun from someone’s possession. Hallie Biden had a second justification for taking Hunter Biden’s gun — his possession of it was a crime. As a person with a controlled substance abuse disorder, he could not legally possess firearms as a matter of federal law. The jury found him guilty on that charge.

Hunter Biden is not alone. We’ve estimated that hundreds of thousands of Americans illegally possess firearms. California, the state that does the best job of tracking this problem, has identified <a href="https://goldrushcam.com/sierrasuntimes/index.php/news/local-news/37670-california-department-of-justice-releases-2021-armed-and-prohibited-persons-system-program-annual-report-as-of-january-1-2022-the-apps-database-had-24-509-armed-and-prohibited-persons#google_vignette" target=_blank>more than 24,000 prohibited persons</a> who have failed to surrender their guns.

To varying degrees, states allow people to make <a href="https://www.nytimes.com/2016/05/08/magazine/how-to-make-a-citizens-arrest.html" target=_blank>citizen’s arrests</a>. We should find new ways for private citizens who know that someone else dangerously or illegally possesses a firearm to temporarily “arrest” the weapon by storing it safely with a third party until a court can adjudicate the merits of possession.

As Chief Justice John G. Roberts Jr. wrote in a <a href="https://supreme.justia.com/cases/federal/us/602/22-915/" target=_blank>majority Supreme Court opinion</a> earlier this year, “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

Let’s bring the law into conformity with this idea and allow private citizens to temporarily disarm others who pose a credible threat.

Ian Ayres

Fredrick Vars

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