During the course of his speech yesterday, Trump announced that he would back some type of ‘Red Flag’ legislation as a deterrent for future mass shootings. It sounds like a reasonable solution, until one really examines the issues surrounding our Constitutional right to due process.
This spring Colorado passed ‘Red Flag’ legislation this spring, House Bill 1177. Jared Polis signed it into law against reasoned objections from law enforcement, politicians, and a significant number of Colorado citizens.
The author of the Colorado bill, Tom Sullivan, lost his son to the Aurora shooter. This legislation is one he believes would’ve stopped the Aurora shooter. Perhaps, except that it also doesn’t address the fact that even the mental health professionals who worked with the shooter couldn’t agree on diagnoses and treatment – in fact the shooter fell through the cracks.
What is House Bill 1177?
“Firearms – extreme risk protection order – petition requirements – hearings – firearm surrender options – termination hearing – appropriation. The act creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO) beginning on January 1, 2020. The petitioner must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.”
Furthermore, a second hearing and a court appointed attorney for the respondent must be in place within 14 days.
The petitioner can be a family member, member of law enforcement, or even just someone living in the house ie; roommate/girlfriend/boyfriend.
The respondent only gets ONE chance in the space of a year to try and reverse the ERPO and burden of proof will be on him or her.
There are many red flags to this legislation. First of all, mental health professionals aren’t a key part of this legislation. In fact it puts the burden on law enforcement to provide the respondent with contact information for mental health resources! Secondly, the legislation is very broad. It doesn’t define what ‘risk to self or others’ means other than defining it as one who has one or more firearms in his/her possession. Third, there is a crap ton of gray area when it comes to determining what statements or actions by the respondent rise to the level of harm and thus mean his/her guns can be confiscated.
Again, it’s telling that mental health professionals are afterthoughts in this legislation. Not only that, but this does put law enforcement at risk. Once the petition is granted, law enforcement is the one who has to serve notice, search the house, and confiscate whatever weapons are found. What could possibly go wrong in this scenario?
In regards to Due Process, with Colorado’s law, that person has limited due process given that he or she will have no knowledge of the ERPO until it is served. After that, the burden of proof lies with the respondent to use their one and only chance to prove he or she is not a danger. In other words, contrary to what Lindsey Graham stated yesterday, Colorado’s law doesn’t have a robust due process system in place with this legislation.
There are other valid concerns as Dana Loesch outlines in this thread. A sampling:
Many questions about this. Who can petition for ERPO/red flag? It varies state by state. Are there protections for abuse? I haven’t seen any in the legislative proposals I’ve read. It takes months, perhaps years even to clear one’s name if falsely accused …
— Dana Loesch (@DLoesch) August 5, 2019
If the penalty of confiscation is given before any evaluation or a court date, which is typical with these proposals, does this seem like an inversion of “innocent until proven guilty” to anyone and if so, does it concern you?
— Dana Loesch (@DLoesch) August 5, 2019
How does removing just the guns solve the mental health or domestic violence issues? For those with a history of domestic violence, it’s a known fact that the abuser will use any tools necessary to maintain power in the home and something like law enforcement showing up to confiscate guns can escalate the problem.
In regards to due process, there is also a danger that the 4th Amendment will be tossed by the wayside. Nowhere in the CO legislation could I find that a search warrant would be issued in conjunction with the ERPO order. Due process and protection against unlawful search and seizure are left hanging with all of this.
Once again, we are hearing that legislation and government involvement will solve all our mass shooting problems. What is being ignored are the issues with mental health and an acknowledgement of the fractured homes many of the shooters came from.
Red Flag law bandaids are a short-term solution that doesn’t address the many multiple layers of the problem.
Feature Photo Credit: Kalhh at Pixabay, cropped and modified
Scott says: Nina,
As with most proposals from the dims, so-called red flag laws have nothing to do with safety, but are all about controlling people. With the radical left leanings of members of my family, I am truly in fear of the fact that they could try to use this Colorado law against me. Thankfully, I live in a county that doesn’t suffer such fools lightly, so I hope that will be some protection against abuse of this type, but it’s still an unknown.
On thing to remember with the “rule of unintended consequences”, that only applies to conservatives that go along with these ideas. To the lefties that push this stuff, none of the second and greater order effects are unintended.
Joe R. says: 1) The FBI’s NICS [background] check is merely the honor system that is (once passed) a potential “false positive” for being “honorable”, meaning that, once someone has passed a background check, and obtained a weapon / ammunition, can go on to do whatever heinous thing they can thereafter think up. It is nothing more than a B.S. false sense of security for the rest of us, while being a YUUUUUGE drain on tax dollars and regular citizens time.
2) NO ONE, can guarantee anyone else’s security on an individual level (not even members of government) it should be WRONGFUL, not just “wrong”, for anyone to make such a bullsh*t claim.
3) ALL RIGHTS are freedoms FROM “government” (merely comprised of our aY-whole neighbors who needed a job). Therefore government cannot also be their protector, and therefore such rights are ONLY protected by an individually armed Society. FURTHER bona fide U.S. citizens need “arms” not just guns, ON HAND, in the case that they find themselves needing to prosecute the 2nd Paragraph of the Declaration of Independence, which states that it is such a bona fide U.S. citizen’s “duty” to chuck their ay-whole neighbors who needed a job (again their “gov’t”) “Whenever” they deem necessary. Government therefore cannot also be the regulators of the means to do so, or else a citizen needing to chuck their gov’t would have to ask for the means or the permission to obtain the means to do so. [Any idiot claiming that the U.S. Declaration of Independence is not the ‘Law of the Land’, better check their U.S. history. The ONLY reason we have our current “Constitution” is due to the fact that our Founders / Framers did not feel our original constitution (the Articles of Confederation) got enough of what we all demand of/by/for/and from each other under the Declaration of Independence. The Constitution was also found not to do so, and that’s why we have the Bill of Rights. Either way, our idiot aY-whole neighbors who needed a job, should only test the 2nd Paragraph of the Declaration of Independence at their peril].
GWB says: must be in place within 14 days
Nope. If it’s not a 24 hour period (weekends and after hours included!) then I’m agin it.
The respondent only gets ONE chance
I understand this is an effort to prevent a crazy person from tying up the courts, but you want to take away a Constitutional right, then you have to suck up the hurt.
burden of proof will be on him
Absolutely NOPE. Burden of proof for guilt must ALWAYS be on the prosecution. Period. It’s the way we roll.
In fact it puts the burden on law enforcement to provide the respondent with contact information for mental health resources!
Should be the court, but this is a meh objection.
It doesn’t define what ‘risk to self or others’ means
you know, there was a time when words meant something, and that was a pretty damned clear statement. Thank you, progressives. *two-finger salute understandable without spoken word*
a crap ton of gray area
Yep. And this is why the “within 24 hours” is vital, imo. The state has 24 hours to prove its case with you in defense. (The respondent could postpone beyond 24 hours if they wanted to, the way I would do it.)
law enforcement is the one who has to serve notice, search the house, and confiscate whatever weapons are found. What could possibly go wrong in this scenario?
Sorry, but not really a valid objection. Police do this all the time with warrants. It’s their job. (BTW, I would also require an option for the person to remove themselves from the vicinity of the weapons, effectively securing the weapons in place. This is necessary for the family man and such, so his family remains protected while the due process happens – 24 hours.)
no knowledge of the ERPO until it is served
Again, just as warrants are served now.
Are there protections for abuse?
This is a BIG question. And, specifically, how are government abusers handled? Do they get automatic immunity? Because that would be bulls**t.
If the penalty of confiscation is given before any evaluation or a court date
Yep. Why it should be dealt with within 24 hours.
How does removing just the guns
It does take away their most effective weapon. But, really, if there’s domestic abuse, and no one is arresting the perp and requiring separation, then you’ve already f*ed this up 8 ways to Sunday.
But, yes, that sort of thing needs to be addressed in the original (and subsequent) hearing – ok, if this guy is problematic enough you’re taking away his guns, what else are you doing? If the answer is “nuffin!” then the default should be to deny the order. (I could see approving the order in a situation where there’s incompetence, and a firearm is discovered, but the incompetent is already under good care and such.)
Nowhere in the CO legislation could I find that a search warrant would be issued in conjunction with the ERPO order.
Hmmmm…. I would make the ERPO an effective warrant, requiring more evidence than a regular warrant.
BUT, I would try to avoid the usual search warrant, as those can be horribly abused. (“Oh, prosecutor, look what I found while searching for that pistol he supposedly had!” Oy!)
Once again, we are hearing that legislation and government involvement will solve all our mass shooting problems.
This. And, of course, it won’t. It will generally twist the problem into something just off enough it escapes scrutiny. Which will require more laws and gov’t involvement. Which will….
As I’ve said before, I’m for laws that would enable dangerous people to be separated from their more deadly weapons. (For example, I’m not real worried about spoons, even if they do hurt more.) And those laws need to ‘solve’ the problem of court delays and such – so that you don’t tell someone “Hey, in a couple of weeks we’re going to have a hearing about taking your guns away, so don’t do anything naughty until after that.” Also so you don’t tell someone “Gee, I’m really sorry about taking your handgun away; I know you say there’s someone out to hurt you, but our next court opening isn’t for two weeks.” And they need to punish false accusations. (Which is not the same as not meeting the standard of proof required.)
Without all that? Nope. Arm the populace and let us handle things.
GWB says: must be in place within 14 days
Nope. If it’s not a 24 hour period (weekends and after hours included!) then I’m agin it.
BTW, if you can’t justify keeping the court open on the weekend or during the night to deal with the respondent’s due process, then you can wait until Monday morning to serve the ERPO.
And, if you can wait until Monday to serve the ERPO, then it doesn’t seem very Emergency, does it?
And if it’s not that Emergency, then what’s the basis of taking away the firearm again?
GWB says: Oh, and another consideration:
Will these records be public? After all, you would think it should be public record, right? Dangerous person has their gun taken away. You certainly shouldn’t sell them anymore. And maybe you want need to take other actions – like take away their children, or file restraining orders.
So, if basically anyone can look up that you are now defenseless in your own home…….
And, if you win and get your weapons back, now everyone knows that you have firearms in your house. Maybe even when you’re not there….
GWB says: One more addendum:
The person who triggers an ERPO, is their statement a sworn, written statement before the law? It needs to be. You could at a minimum hold responsible someone abusing the system (if nothing else, through a defamation and civil rights lawsuit).
One more ‘bare minimum’ requirement.
(h/t to Tom Servo on Ace of Spades)
Bobby Ahr says: Sounds reasonable. Nothing’s perfect.
A step. So somebody gets his gun taken away for a while – or forever. Boo hoo. And we know that if someone really wants one they aren’t that hard to find.
Slickwilly says: Bobby,
So you would be fine if I phoned in an anonymous tip that you have drugs in your home, and were brandishing a gun out the front door?
Boo hoo: you get a no knock visit and your house searched with whatever they find being used against you.*
This is really easy to abuse, and your attitude says that our rights do not matter.
You are part of the problem.
*Look into “Convention on International Trade in Endangered Species” some time. ANY item declared illegal to possess in ANY country is illegal for Americans to possess. You buy a hat at WalMart made with a type of straw harvested illegally in Honduras, and you ARE a criminal.
Scott says: Bobby is a well known troll Slick, he likes to show up occasionally and be an ass..
GWB says: It’s not just the type of abuse that you point out.
What if someone requires a restraining order – and we all know how effective those are – and has a firearm so they can protect themselves. And the person being “restrained” gets a buddy to start a chain of events to get the person’s firearm taken away. Now, instead of a piece of paper and a firearm protecting the target, there’s just a piece of paper.
Nifty, huh?
Pat Hines says: Red Flag Laws are blatantly unconstitutional, but that’s unlikely to matter. There are NO US government gun laws that are constitutional.
Pat Hines says: An edit: I recommend you not use the US government’s flag when you’re addressing a problem with anti-rights enforcement. In essence, you’re flying the flag of those that would enforce national confiscation.
Think about it.
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