Aug
12
Gun Confiscation without Due Process
“When a person is stripped of their constitutional rights, albeit temporarily, without being given the chance to make their own case based on what can be entirely arbitrary accusations, this is the removal of due process.” — Matt Agorist, independent journalist and Editor-at-Large at the Free Thought Project
Parkland shooter Cruz
Following the mass-shooting at Marjory Stoneman Douglas High School in Parkland, FL, this past February, President Trump held a bipartisan meeting with congressional leaders to discuss gun laws and school safety. In an amazing display of ignorance and/or off-the-cuff carelessness, Trump suggested that certain constitutional protections might be temporarily ignored in order to save time:
“I like taking the guns early…. Take the guns first, go through due process second.”
He made a few other ill-advised comments, too. Hopefully, his inner-circle straightened him out later. Unfortunately, this sort of thinking is not unusual, as evidenced by the rise in “red flag” legislation.
Sometimes known as “Extreme Risk Protection Orders” (ERPO) or just “Risk Protection Orders” or something similar, these laws allow police, family members, roommates or sometimes neighbors, to petition a state court regarding a gun owner whom they believe presents a danger to others or themselves. Based on reported statements and/or actions, the judge may grant an order to temporarily confiscate the subject’s firearms. (Sometimes, the subject will then be sent to a facility for psychological assessment under the Baker Act, which may take days or weeks.) The firearms are to be returned to the subject after a set amount of time. However, the need for extended or even permanent retention of the firearms may be determined in a subsequent hearing, if the officer(s) involved can convince the judge that the subject is indeed dangerous. Keep in mind, the individual hasn’t been arrested or accused of any actual crimes, at this point.
“While touted as a necessary tool for police, an ERPO removes due process as the person who is accused of being mentally unstable does not have to be present and gets no chance of facing their accuser.”
In other words, it may seem reasonable on the face of it, but there are dangers. One or more people may plot against you, the gun owner, for whatever reason (e.g., race, religion, political ideology, sexual proclivities) and convince the powers-that-be that you are a threat of some sort. The cops can take your guns, maybe send you to a psych ward, all before you have an opportunity to defend yourself against their claims. Even if they know the “evidence” isn’t enough to convince a judge to keep your guns from you, it would still be a harrowing and humiliating experience that could also work to the accuser’s advantage. Furthermore, such laws could be a stepping stone to further losses of rights. That is the concern.
I found this bit from the Wikipedia “Red flag law” article interesting:
“The National Rifle Association (NRA) had previously argued that red flag laws unnecessarily hamper the right to due process of individuals who are restrained by them, and worked to defeat such legislation in Utah and Maryland. In a March 2018 policy reversal, the NRA suggested that it might support such laws, but conditioned any openness to such laws on an extensive list of conditions, including a judicial finding by “clear and convincing evidence” that the person poses a significant risk of danger. The NRA did not identify any federal or state red flag laws that it supported.”
Prior to 2018, five states had passed such laws: Connecticut (1999), Indiana (2005), California (2014), Washington (2016), and Oregon (2017). This year so far, eight more have passed them: Florida, Vermont, Maryland, Rhode Island, New Jersey, Delaware, Massachusetts, and Illinois. Several more are considering similar legislation. You might observe that these states skew “blue”, but there is also some bipartisan support and even Republican governors (e.g., FL’s Rick Scott, MA’s Charlie Baker) are getting on board. Understandable, given public outcry after tragic events, but is this a good thing?
Unfortunately, certain elements of the right-wing press have been a bit too alarmist on this topic, reporting “red flag” incidents without giving all the relevant facts. For example, “It Begins: Seattle Cops Conduct Nazi-Style Gun Confiscations: No Laws Broken, No Charges, No Arrests” (and similar articles) purports that an innocent man was deprived of his firearms merely for open-carrying his .25 caliber automatic and for “staring” at people, neither of which are illegal in Washington. As PolitiFact uncovered, however, there were additional, relevant factors: e.g., the individual’s PTSD, reports of escalating behavior, earlier voluntary surrendering of a firearm, failure to do so again at a court-appointed time, etc. The man in question, an Army veteran, later told Fox News, “I’m grateful that the police got the gun away from me.”
Then there was “It Begins: Florida Police Now Confiscating Guns From People With No Due Process” by the same columnist. This time, the individual’s psychological issues were mentioned (e.g., paranoia re the FBI and a shape-shifting neighbor who looked like Osama Bin Laden). What was not mentioned but later revealed by PolitiFact?
“[T]he person in question allowed police to retain his guns at the time he was taken into custody under the Baker Act. After this, Lighthouse Point police took the necessary steps to obtain a temporary risk protection order, which a judge reviewed and signed…. He did not contest the one-year risk protection order requested by police.”
I can’t say whether the misrepresentations of these incidents were done from ignorance (i.e., insufficient research) or knowingly and with the intent to stir up pro-gun sentiment. Either way, it is inexcusable and unnecessary. In fact, such irresponsible journalism hurts the pro-gun cause, especially when exposed by a somewhat Left-leaning project like PolitiFact.
Back to the main issue…
Details of the legislation vary from state to state, so some red flag laws might be more controversial while others (e.g., Indiana’s “Proceedings for the Seizure and Retention of a Firearm”) are less so. Unfortunately, research as yet on the effectiveness of such laws has been somewhat limited. Also, while we are all for improved mental health monitoring, etc., especially as regards gun ownership, we also recognize the great potential for abuse of this type of legislation by law enforcement and by family & neighbors with ulterior motives. So, for those of us concerned with loss of due process (5th and 14th Amendments) and/or gun rights (2nd Amendment), so-called red flag laws send up a red flag of their own.
