[Ed: DRGO has returned from the 34th Annual Gun Rights Policy Conference, hosted in Phoenix by the Second Amendment Foundation. On Sunday, Dr. Edeen discussed the problems with firearm confiscation orders. Watch DRGO here at about 1:00, with Dr. Edeen at 1:18. He reminds us that he is NOT an attorney.]
What are these laws and why are they so dangerous?
“Red Flag” laws are currently in effect in 15 states and the District of Columbia. Hawaii’s and Nevada’s Red Flag laws will take effect on January 1, 2020. Red Flag laws allow courts to issue orders to temporarily confiscate the firearms of individuals deemed to be a risk to themselves or others. Individual states differ as to who can request this.
In most states, family members and/or law enforcement can request the order from a state court judge to confiscate the firearms of the person who they believe to be at risk. The exact details vary from state to state. The hearing is ex parte, which means that the at-risk individual has no notice, no representation and no opportunity to rebut the claims of those who would have his firearms taken. In most cases, the only warning is the knock on the door when law enforcement comes to take his property.
The subject of the Red Flag order gets his day in court at some later date to plead his case. If the order becomes final, it can last for six months to a year before needing to be renewed. In New Jersey it is indefinite until the subject can convince a judge that he is no longer a danger.
Many Constitutional protections are turned upside down or violated by these laws. The most obvious are, of course:
— the Second Amendment: “[T]he right of the people to keep and bear arms shall not be infringed.”
— the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched , and the persons or things to be seized.”
— the Fifth Amendment: “Nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use , without just compensation.”
— the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due processes of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Your accuser has no obligation to prove your guilt. The order to deprive you of your Constitutional rights is given using completely unsubstantiated, arbitrary terms. You then have to stand before your government to prove your innocence.
These laws also have a chilling effect on the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, . . or the right of the people to peaceably assemble.” What you say on social media (e.g., “I support the Second Amendment”) or which organizations you belong to (e.g., National Rifle Association, Second Amendment Foundation) in San Francisco can label you a terrorist and subject you to being Red Flagged and have your property confiscated. What crime did you commit? The exercise of Constitutionally protected rights.
Since these proceedings fall under civil rather than criminal law, your Sixth Amendment protections are bypassed. These include “the right to a public and speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
The Seventh Amendment states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court in the United States, than according to the rules of common law.” However, the civil proceeding against the individual by the state is regarding property worth far more than that $20 civil threshold. Why do firearm confiscations not permit trial by jury? A judge holds your rights in his sole hands.
The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Is not having your property seized without trial or due process cruel and unusual? Is it not essentially an excessive fine to have to pay an attorney $10,000-20,000 to get your property back even though you committed no crime?
These laws turn “innocent until proven guilty” on its head. They allow unreasonable search and seizure, and void due process. They deny trial by jury and punish innocent persons before they are found guilty of a crime. The punishment (confiscation of property) happens without any criminal conviction or an adjudication of mental incompetence. The ex parte nature of the original hearing only presents one side of the argument. Is there a police investigation to confirm the claims of the person asking for the order prior to accepting the petition? Many Red Flag laws hold the complainant harmless from civil damages even when the claims are false. In some states the rules of evidence are waived.
These laws bypass important existing processes. They take away the firearms but do not address any other potential self-destructive or criminal behavior of the person subject to the ERPO.
There are civil commitment processes in place in every state for people to be evaluated by a mental health professional for a limited period of time. During the confinement, a psychiatric evaluation can be done in order to ascertain if they are truly a danger by reason of a mental illness. They can then be adjudicated as being a danger or not, with all due process. This has the added benefit of getting help for those who need it, while separating the person from all dangerous weapons.
If there is criminal intent, the person can be arrested and be charged with a crime. They can then be tried with all their Constitutional protections in place. In any event, due process is preserved.
Let’s look at the practicalities of the ERPO system. What judge is going to deny a petition claiming danger? The only risk they have is if deny it and then the person does something dangerous. Most judges are elected and seek re-election.
On the other hand, the accused now must shoulder a significant financial burden to prove his innocence. He would have to pay for his own mental health evaluation to try to to recover his property, rights and reputation? Let us not forget that many in the mental health professions are biased against firearms and the Second Amendment. It may be difficult to find someone to give a fair reckoning on your behalf. How do you prove a negative? Our judicial system should put the burden of proof on the state here too, not on the accused.
Red Flag laws can be used against women defending themselves against domestic abusers. They can be used in divorce and child custody litigation as leverage against their partners. They can discourage those who might need mental health treatment for depression or suicidal ideation from seeking help for fear of triggering a Red Flag report.
Who is responsible for preserving your property for the duration of an order? Police departments have been known to damage or destroy seized firearms. You might never get your property back. You will not be compensated for its value, and to add insult to injury you may be charged a storage fee too!
Red Flag laws deprive you of you Right to Keep and Bear Arms. They subject you to unreasonable search and seizure. They deprive you of due process of law and deprive you of your property without just compensation. They contravene your rights to a speedy and public trial, an impartial jury of your peers and to confront your accusers, without even accusing you of a crime . You cannot call witnesses on your behalf or have counsel represent you until after your property and rights have already been violated.
It is cruel and unusual punishment to be forced to prove your innocence, costing tens of thousands of dollars to prove a negative. Of course, this abridges the privileges and immunities of the citizens it is used against. These laws have already deprived people of their life, liberty and property. In jurisdictions that abuse the rights of citizens, will we see Federal prosecutors charge those who violate citizens’ rights in these ways under 18 USC 241 (Conspiracy against rights) or 18 USC 242 (Deprivation of Rights Under Color of Law). We are still waiting.
As an alternative, a writer named Ian Williamson has proposed a “Purple Flag Law”. When an accusation is made, instead of confiscating the person’s guns, the person is escorted to a facility where his state of mind can be evaluated. This addresses the critical concern, separating the person from the guns. If a person is dangerous, he doesn’t need guns to hurt or kill a lot of people. It keeps the firearms out of the hands of the state, since experience has proven that once they have been taken you are unlikely to get them back in good condition, if at all. And the person, unlike the guns, has the right of habeas corpus.
Second, if the accusation that leads to the evaluation turns out to be unfounded, the accuser gets a mandatory one year in prison, and is named in a mandatory civil lawsuit demanding $1 million in damages. That will deter bitter ex-spouses, disgruntled employees, spiteful neighbors or anyone else with an ax to grind from initiating a Red Flag petition as a form of harassment.
Finally, when an accusation is well-founded and a person turns out to be too dangerous to release, this framework has the crucial advantage of focusing attention where it belongs — on the person, not on the gun.
It is obvious to me that those who create Red Flag Laws are not really interested in public safety. They only want another means to confiscate firearms and to create more prohibited persons.
- Constitution of the United States of America
- KrisAnn Hall, JD, You Tube video, The Truly Insidious Nature of Red Flag Laws
- Tea Party Action Patriots. Say NO to “Red Flag” laws.
- CBS News. What are “red flag” laws, and which states have implemented them? August 9, 2019.
- DRGO on Firearm Confiscation due to dangerousness, March 13,2018, drgo.us
—Dr. John Edeen is a pediatric orthopedic surgeon in San Antonio, TX and is active in seeking the right to carry for qualified hospital staff. He is DRGO’s Membership Director.