Red Flag Laws, and its issues.
Tags: Gun law
Red Flag Laws, and its issues. published by NLX
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Posted on 2023-03-15
Writer Description: I write about public policy and law. Check out my substack here: https://nlx16.substack.com/
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First, I would like to describe what red flag laws are and what they do.
We have to discuss the ex parte fashion in which red flag laws are predicated on. In Latin, ex perte translates into “from one party,” meaning that in the court of law, only one side can make its case in court. It would go as such:
A person files a petition to the courts claiming that another individual is mentally unwell and should be disarmed by proving or providing the evidence required for a red flag law to be placed. On the other hand, the other party has no idea that such is happening, and they might be subject to criminal liability. There’s no due process or fair notice, and the laws don’t grant the person being petitioned a right to counsel otherwise provided by the 6th amendment. A thing to note is that red flag laws can lead to criminal prosecution, which would require due process—something red flag laws circumvent entirely.
Only after the courts confiscate the guns from an individual can the individual challenge the ruling.
A problem with this is that the courts will take the first decision with higher consideration, where the petitioned (the person being flagged under the law) did not know the previous case but could not defend themselves in court. This leads to an unfair advantage to the other party petitioning the courts to disarm an individual because the laws circumvented due process, the right to counsel, and fair notice.
Red flag laws are considered “civil.” Still, the law can lead to an unrepresented individual becoming a defendant in a criminal case when law enforcement finds firearms in the individual’s residence because the individual is now under criminal liability.
Another issue with red flag laws is that it gives the power to people without credentials to determine whether or not another human being is either a danger to themselves or others.
This would create a conflict between red flag laws and other mental health laws on the books. Usually, the only people who can determine whether an individual is a danger to themselves or others are mental health professionals (in the state of New York, it’s worded as the “likelihood to resort in serious harm”). Red flag laws don’t require a mental health expert’s opinion on the matter. Instead, it takes serious accusations of mental un-wellness from those who aren’t mental health experts.
The New York State Supreme Court recently ruled New York’s red flag law unconstitutional.
The attorney who successfully fought the red flag laws told local news this, Daniel Strollo, said the law allows a "very quick and easy mechanism to deprive somebody of their fundamental Second Amendment rights."
"You have people who are essentially not medical professionals expressing medical opinions that result in the deprivation of rights," Strollo said. "And you have a procedure that essentially allows somebody to lose those rights without ever having gone in front of a judge."
To quote the court case:
As such, this Court holds that, under CPLR 63-a, in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees, such as a physician's determination that a respondent presents a condition "likely to result in serious harm," before a petitioner files for a TERPO or ERPO. Since this standard is required to prevent a respondent from being deprived of fundamental rights under the Mental Hygiene Law, then anything less (as contained in 63-a) deprives a citizen of a fundamental right without due process of law.
To explain the quote above. The courts determined that in order for a red flag law to be constitutionally sound, it must only rely on the determination of a mental health expert. This would exclude family members, coworkers, and police officers from being able to file a petition for a red flag law. Where previously those people would be able to file those petitions.
This ruling would run contrary to the beliefs of many within the mainstream media. Indeed red flag laws in their current state violate due process rights even though mainstream media sites such as the Washington Post would like to suggest otherwise.
Another issue that arises from red flag laws is that they have the propensity to be used against innocent individuals. About a third of gun confiscation orders are wrongly issued against innocent and peaceful individuals.
And because of the ways some red flag laws are written, mainly those that rely on the Giffords/Bloomberg model are flimsy and rely on unreliable procedures for ex parte orders. This model ensures that this law will affect a high rate of innocent and peaceful civilians. The laws also make things worse by aggravating the situation with mandates for automatic, no-notice, surprise confiscation. AKA no-knock warrants.
Obviously, these poorly written laws endanger public safety. In November of 2018, Gary J. Willis, a 61-year-old black man, was shot to death by police. The police in Ferndale, Maryland, showed up at Mr. Willis’s house at 5:17 A.M., announcing that they had come to take his guns. They talked for a while, then argued, and then the police shot him to death.
With red flag laws, a respondent never receives notice of anything until the police show up to confiscate his or her firearms. This creates an inherently volatile and dangerous situation not only for law enforcement but also the public. The safer approach is to authorize no-notice confiscation only when a court has made specific factual findings about why such an approach is needed.
It comes as no surprise that these extremist laws advocated by the gun control lobby will not be enforced in many jurisdictions. All throughout the U.S., sheriffs have pushed back against these extremist laws that trample on civil rights and have stated they will adhere to their oaths to enforce the U.S. and state constitutions.
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