Gun Control

New York's New 'Red Flag' Law Illustrates the Due Process Problems Posed by Gun Confiscation Orders

When it comes to deciding who should keep their Second Amendment rights, the deck is stacked against gun owners.

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New York's "red flag" law, which takes effect tomorrow, illustrates the due process issues raised by court orders that suspend people's Second Amendment rights when they are deemed a threat to themselves or others. The law seems designed to compound the problems created by the 2013 SAFE Act, which required mental health specialists to report people they thought "likely to engage in conduct that will cause serious harm to self or others" so police could confiscate their guns.

The new law allows a long list of people to seek an "extreme risk protection order" that bars the respondent from possessing firearms. Potential petitioners include police officers, prosecutors, blood relatives, in-laws, current and former spouses, current and former housemates, current and former girlfriends or boyfriends, people who have produced a child with the respondent, and school administrators or their designees, such as teachers, coaches, and guidance counselors. The "school personnel" covered by the law can even report a former student if he graduated within the previous six months.

As usual, "extreme risk protection order" is a misnomer. An initial, ex parte order lasting up to six business days can be obtained based on "probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others." The purported threat need not be "extreme" or imminent. At this stage, the respondent has no opportunity to challenge the claims against him, and the experience of other states suggests that judges will routinely rubber-stamp initial orders.

After a hearing, a final order can be issued based on "clear and convincing evidence" that "the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others." A final order lasts up to a year and can be renewed. Again, there is no requirement that the threat be imminent. And while "clear and convincing evidence" is a more demanding standard of proof than "a preponderance of the evidence" (which is enough in three states and the District of Columbia), "likely" is a slippery concept in this context.

The red flag law refers to the definition used in New York's standard for "emergency" psychiatric commitment, lasting up to 15 days, which requires a "substantial risk of physical harm." That is better than the standard prescribed by many other red flag laws, which typically require a "significant" risk and in some cases merely a "risk," "danger," or "risk of danger." But contrary to the connotations of extreme and likely, people can lose their Second Amendment rights even when it is quite unlikely that they would use a gun to harm themselves or others.

Notably, judges may consider "any evidence," and respondents have no right to legal representation if they cannot afford it. Nor do they have a civil cause of action against petitioners who lie, a potentially significant problem in light of all the people who are allowed to file a petition. What is to stop an in-law, cousin, ex-spouse, ex-girlfriend, or former housemate with a grudge from abusing this process by seeking to take away someone's constitutional rights?

Theoretically, they could be prosecuted for lying, but that almost never happens. "The odds of criminal prosecut[ion] are low, even if an affidavit is sworn under
penalty of perjury," David Kopel, a gun policy expert at Denver's Independence Institute, noted in Senate testimony last March. "Perjury prosecutions are rare, and rarer still from civil cases….Without a strong civil remedy, there is little practical deterrent to malicious reports."

Erie County District Attorney John Flynn, who supports New York's red flag law, recently acknowledged the potential for mischief. "This is a huge change," he told a local radio station. "I agree that there's potential for abuse here….If some spouse is mad at their husband or wife, and they get into an argument, and they're trying to just get back at their spouse, can they come to me and lie to me, say, 'My husband's acting erratically, he's got a gun,' etc., etc., when they really might not be mentally disturbed? I agree the potential is there for abuse. But all I can say is that I can see through nonsense….I'm going to be fair. I'm going to be reasonable. I'm going to use common sense. And I'm not going to willy-nilly go in and take people's guns that have a constitutional right to keep them."

But as Flynn acknowledged, "you don't have to come to me": Anyone on the long list of potential petitioners can go directly to a judge and ask for a gun confiscation order. So it's not as if law enforcement officials like Flynn, who describes himself as "a firm believer in the right to bear arms," will act as filters against malicious petitions. And while the judge is supposed to act as a filter, he has a strong incentive to issue an order whenever a petitioner claims someone poses a danger to himself or others. From the judge's perspective, it is better to err on the side of suspending someone's constitutional rights than to take the chance that something terrible will happen if he doesn't.

"New York is proud to pass the first-in-the-nation Red Flag Bill that empowers school teachers to do something when they believe something bad is going to happen," Gov. Andrew Cuomo proclaimed when he signed the bill last February. Cuomo imagines that vigilant, conscientious, and prescient teachers (the kind typically employed by public school systems) will prevent mass shootings by identifying would-be killers before they can strike. But what about teachers who are mistaken, or dislike a particular student, or are mistaken because they dislike that student? They can set in motion a legal process that affects not only the student but his parents, whose guns will be confiscated until they demonstrate that they are legally allowed to own them.

Such legal entanglement may seem like a small matter compared to the risk of a mass shooting. But it is bound to happen, while the violence-preventing benefit of red flag laws is purely speculative. Likewise, it is certain that many adults who do not actually pose a threat to anyone will nevertheless lose their Second Amendment rights for a year or more. That consideration seems to count for nothing in the calculations of the politicians agitating for more red flag laws.

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  1. How many high school student shooters legally had possession of a gun? Versus 6mos after they graduated. I agree it is a slippery slope and always subjective, but I attempted to have police take custody of firearms for someone that I had POA over. He was potentially a threat to himself and others. His doctor agreed. Police told me to “just lock them in your trunk”.

    1. Police told me to “just lock them in your trunk”.

      Was there some reason that wouldn’t work? It’s always better to avoid police involvement in any situation if it can be helped.

  2. Somewhere down the line: “Red Flag” warnings to prevent dangerous votes being cast.

    1. Good point. Anyone who can’t be trusted with a weapon certainly can’t be trusted with our democracy.

    2. Well, voting is an act of subsumed violence.

      1. Someone watched Starship troopers.

  3. Potential petitioners include police officers, prosecutors, blood relatives, in-laws, current and former spouses, current and former housemates, current and former girlfriends or boyfriends, people who have produced a child with the respondent, and school administrators or their designees, such as teachers, coaches, and guidance counselors.

    Sheesh, why not mention homies and people who think that you looked at them funny? Oh, that’s right: “include”.

    1. Next up, flipping off a cop will be considered just cause to have your firearms taken.

  4. police officers, prosecutors, blood relatives, in-laws, current and former spouses, current and former housemates, current and former girlfriends or boyfriends, people who have produced a child with the respondent, and school administrators or their designees

    I’m sure none of those people would ever use this law inappropriately to get revenge or punish people they don’t like.

    1. #M2?

  5. Time for the Feds to start charging people with conspiracy against civil rights. A few prosecutions on that charge will solve this pretty quickly.

    1. That is what I was thinking.
      Each charge should be immediately followed by a counter charge of conspiracy to deny constitutional rights, against the complainant and any one involved in the order before due process.
      Federal criminal charges, so no need to have to pay a lawyer for civil suits.
      Of course, the socialist prosecutors will have all sorts of ‘discretion’ to tell you to go pound sand, but keep it up and highlight the lack of due process. After a decade or so, it is starting to work against the title 9 tyrants.

    2. +100

    3. They’ve already used these red flag laws to confiscate the guns of a guy who said he’d protect himself if attacked. Yeah, that’s a conspiracy to remove his right to defend himself with a gun.

      There is a kind of red flag law I do support, in the sense it prevents a crime: the 2nd amendment, it keeps the government from using guns to commit a crime of taking your guns if you haven’t committed a crime.

  6. A flood of orders coming from the police to disarm poor black neighborhoods in 3, 2, 1….

    1. More and more Black Americans voting non-Democrat in 3, 2, 1…

    2. I though that was already de rigueur….

      1. It’s “legal” this time.

  7. OK. I will g first.
    I was a secret boyfriend of all the cops in the entire state of New York.
    I now think that they all, each and every one, are bat shit crazy and a danger to every New York state citizen.
    Go get their guns!

  8. New York’s “red flag” law, which takes effect tomorrow, illustrates the due process issues raised by court orders that suspend people’s Second Amendment rights when they are deemed a threat to themselves or others.

    This gun control law is unconstitutional and therefore illegal.

    I am sure plenty of New Yorkers will ignore this unconstitutional law.

    1. Keep playing that one harp string. Surely someone will eventually listen to you.

      1. Don’t worry LC, we are listening. Sparky is just grumpy because his mom went to play bridge without unlocking the basement door today and he couldn’t get to his Vienna Sausages and Triscuits. He is stuck eating stale popcorn from last night until she gets home.

        Luckily, he has his own bathroom down there, so he won’t get dehydrated because of the global heat wave.

      2. I hope people do listen and realize that what I am saying is how the US Constitution is supposed to work.

        That and Americans need to demand their politicians follow the Constitution.

        I personally would never follow any new gun control laws and never have. I am the guy with the “scary arsenal” or perfectly Constitutional Arms.

    2. This one is going to be a lot harder to ignore if it’s used against you than registration requirements or permits to carry.

      1. Who gets permits to carry?

        The Constitution says the right of the People to keep and bear Arms shall not be infringed. Gun permits are an infringement of that right [period]

        1. Free people don’t pay to beg for permission to exercise a enumerated right.

  9. “”the deck is stacked against gun owners.””

    Feature, not a bug.

  10. Potential petitioners include police officers

    Well, THERE’S your problem. A guy with an 85 IQ deciding if you are qualified to exercise a natural right, who’s training consists of hammering home the conviction that anyone in any situation is a potential threat to his own life.

  11. “”Nor do they have a civil cause of action against petitioners who lie, a potentially significant problem in light of all the people who are allowed to file a petition. What is to stop an in-law, cousin, ex-spouse, ex-girlfriend, or former housemate with a grudge from abusing this process by seeking to take away someone’s constitutional rights?””

    If there isn’t an exception for LEOs there will be soon.

  12. So who does the actual confiscating? Suppose baby mama with a grudge gets a judge to sign an order taking away Antonio Cromartie’s guns.
    What does she do – go down the the local precinct and cajole a cop into leaving right away to take the guns? No notice, service of process, or other due process, just show up and demand that the respondent turn them all over? Does he take the guns down to the precinct or does the cop refuse to leave without the guns? What happens when Antonio says he got rid of them last week, or they are at the cabin up north? Does the order apply to the guns in just that house? What about guns he owns in other houses in other towns or states? Does it prevent him from going and buying another one after the cop leaves?
    Can’t believe the NY cops are real happy about this.

    1. They only take the gun when a simple majority of Antonio Cromartie’s baby’s mamas agree to the complaint.
      So I think they’d need to get 4/7 signatories

  13. Can this law be made to apply to Chris Cuomo? He owns a gun and is on video threatening to throw a person down the stairs.

    1. Fredo is a danger to himself and America.

  14. The guy who signed this law is Fredo’s dad.

    1. It’s his brother.

      1. Really? Older… brother? I guess I could just google it.

      2. Or wait, was it the Dad that got Fredo his job at cnn?

  15. ERPOs are dangerous to liberty. In technical terms, they call it an ex parte order. These orders violate due process, which is a guaranteed protection for Americans in the U.S. Constitution. It’s serving punishment on an American despite not doing anything wrong. For a reasonable comparison, it would be like confiscating an automobile from a drunk, being suspicious that the drunk will cause a death. It’s “guilty until proven innocent.” The burden of proof is not on the accuser as in every other legal case, with the accused having a right to confront and cross-examine their accuser; but instead, placed on the gun-owner victim who’s property is being confiscated without due process. This is not how our system of justice works in America.

    1. Actually,it would be like confiscating a car from someone who has an unopened bottle of beer in the fridge.

      1. Actually, its like some relative telling on you for having an open bottle of beer in the fridge and talking about how you like cars and have a few cool cars with cool features.

        Then the police come and unconstitutionally kick in your door and take you, your open bottle, and your car to police impound.

        Fuck that. I would have my APC parked up my long road. Ready for action!

  16. Legalized “swatting”. It’s better to die attempting to take some of the gestapo troops with you that to peacefully surrender your unalienable rights. Those who are unwilling to kill and die to defend their rights and freedoms will inevitable and deservedly lose them.

  17. New York politicians who signed off on this notion will regret the day they ever heard of red flag laws. It’s like reacting to a neighbor threatening passersby with a baseball bat by calling the police and demanding they take his weapon. Their legacies will carry a Supreme Court scolding and perhaps be the landmark of their careers. The Supreme Court isn’t about to jeopardize its own reputation by reducing the ability of private citizens to defend themselves.

    It’s especially important to the justices because currently, half the nation’s murders occur in only 63 counties while the other half are spread across the other 3,081 counties. Said another way, 15 percent had one murder and 54 percent of the nation’s counties had no murders at all.

    These laws were created to dilute power licensed to the psychiatric community and transfer it to unqualified persons the democrats can influence, e.g., local judges and disgruntled aunts. Due process demands reports from two psychiatrists, one from each side, legal representation, arraignment, indictment and trial by jury. Democrats and weak minded Republicans are victims of the bum’s rush.

    They’ve been hoodwinked by Bloomberg’s rhetoric and haven’t read his 2018 data. It reveals gun homicides declined seven percent, firearm injuries declined 10 percent, fatal child shootings (under 18) declined 12 percent and unintentional shootings plummeted 21 percent. Generally, since 1991, the murder rate has fallen by 45 percent and the overall violent crime rate has fallen by 48 percent.

    The natural next step for any Nazified government was to codify empowerment of mothers, fathers, brothers, sisters, sons, daughters, uncles, aunts, cousins, friends, neighbors, judges, police officers, boyfriends, girlfriends, classmates, teachers, faculty, employers, co-workers and everyone except those actually qualified to judge mental competence. Soon they’ll want to choose an upper age limit for people to be “allowed by the government” to keep and bear arms as guaranteed by the 2nd Amendment.

  18. The purpose of red flag laws is to silence gun owners on social media and elsewhere. The threat is there: If you support gun ownership, you will meet a SWAT team at 3 in the morning.

  19. If you tell the police that there’s a violent or mentally unstable person with guns in that house, you know how they’ll go in.

    What could possibly go wrong?

    1. Police have killed people when a relative merely requested a welfare check because they had not heard from them and were concerned about their well being.

      The fact that David Hogg’s home was SWATted ought to be a red flag that Red Flag laws are a potential problem.

  20. It will be interesting to see SCOTUS weigh in on this. My guess is these laws will be struck down since they virtually allow ongoing revocation of constitutional rights with no real due process. Frivolous cases have a good chance being forced there. For those who are concerned, keep donating to your favorite second amendment protection groups so that someone so challenged may get some pro bono legal representation when this does happen.

    This is a similar attack on the citizenry as asset forfeiture, which is now little more than legal shakedown racket it has been abused so much.

  21. Why does this apply if they think a person is at risk of harming themselves? Assuming we aren’t talking about suicide by cop at the end of a murder spree, of course. There is no law against suicide anywhere in the US to my knowledge. Also shouldn’t Roe v. Wade also apply to someone considering self-harm or self-mutilation? Hey, who knows maybe point blank bullet hole ear piercing will become a thing along with the adoption of sign language.

  22. “The odds of criminal prosecut[ion] are low, even if an affidavit is sworn under penalty of perjury,” David Kopel, a gun policy expert at Denver’s Independence Institute, noted in Senate testimony last March. “Perjury prosecutions are rare, and rarer still from civil cases … . Without a strong civil remedy, there is little practical deterrent to malicious reports.”

    This is not just about gun affidavits. Simple fact is affidavits sworn under penalty of perjury and proven factually false or even malicious lies are rarely punished. The affiant or their lawyer might lose might lose credibility with some of the public, but True Believers in The Cause will always point the an affidavit signed under penalty of perjury as The Truth.

    The 26 Sep 2018 Julia Swetnick declaration and the later 2 Oct 2018 [name redacted] declaration backing up Christine Ford and Swetnick against Brett Kavanaugh were supposedly sworn under penalty of perjury. In her 1 Oct 2018 interview with NBC News, Julia Swetnick’s responses to questions were like she had not even read her declaration, much less wrote it. [name redacted] contacted NBC News after Swetnick’s interview and before Michael Avenatti publicly released her declaration and told NBC News she had read her declaration prepared by Avenatti after she signed it and said Avenatti had twisted her words and she did not stand by what was released over her name.

    Now, will these affiants or their lawyer be prosecuted for false statements signed under penalty of perjury? Not as long as the factually false statement serves a politically correct “poetic truth” purpose.

    1. …. always point to an affidavit …

  23. There are over 370 “mental disorders” listed in the latest version of the DSM (Diagnostic and Statistical Manual of Mental Disorders.) The list includes “Tobacco Addiction Disorder” among other equally mundane and ridiculous so-called “mental illnesses.”
    If the DSM is the standard by which politicians wishes to remove our rights to own guns, then I’d guess 90% of the American people could probably be classified with a mental disorder of one kind or another.
    BEWARE, BEWARE

    Mental health is the avenue to gun control..
    American Psychiatric Asso: Half of Americans are mentally ill..
    After crafting by politicians and Media all will be crazy except for them..
    300 million prescriptions for psychiatric drugs were written in 2009 alone..
    Your children on medication for ADHD?
    Single woman with children diagnosed with depression?
    be careful what you ask for

  24. Beck stands against Trump and other politicians traitorous Gun Control Legislation..
    And much of this confiscation is known as “Me Too”
    http://www.youtube.com/watch?v=1jEJLHCBueY

  25. Pastor Chuck Baldwin Exposes Donald Trump’s Broken Promise To Protect The 2nd Amendment..
    Trump along with any politician backing UNconstitutional gun control are not only enemies of the US Constitution, they are enemies of the people..
    http://www.youtube.com/watch?v=3lHd9PuiEHY

  26. The REAL Reason They Want Red Flag Laws – YouTube

    https://www.youtube.com/watch?v=1ucCU_NnJ-0

  27. “it is better to err on the side of suspending someone’s constitutional rights than to take the chance that something terrible will happen if he doesn’t.”

    This is the argument we have to hone in on to change cultural attitudes about 2A. So many people who fashion themselves to be reasonable and moderate trample 2A because they think we’re sacrificing innocent lives at the altar of our delusions of resisting the government or something like that. They’re absolutely convinced that if you aren’t willing to give up something, even if it does nothing at all to address a problem, that you are a subhuman and moral degenerate.

  28. Erie County District Attorney John Flynn says he won’t allow frivolous complaints. If he means that, he could start prosecuting people who lie on affidavits for perjury.

  29. The comments are filled with the usual smug and down-the-road possibilities, maybes etc. Does your state require all firearm transfers be done with a FFL? There are more than a dozen states so far and if you are in one then your 2nd Amendment Rights are gone. Asking permission from government is not a Right anymore. If you have not purchased a firearm before and plan to then you will be one of the first to not have that Right unless government says and it may say “No”. What will you do then? Crack wise with the others in a comment section? You just were caught with your mouth open and pants down sucker.
    Your state have “red flag” yet? That is the most reckless of all laws ever and will be abused. Police can search seize and without warrants. You have no recourse. You will be a mental case forever in everyone’s eyes. Hope you afford an attorney. James Madison said that a search without proper warrant is tyranny. And what was the keep and bear arms for??? Say the wrong thing to someone and then you are reported as a crazy person. Good luck.
    So the 1st, 2nd and 4th Amendments are gone for many and the rest of you will play catch up quickly. Don’t you feel stupid or do you feel like a chicken shit for letting your Rights go? That was all you had and now you are fucked.
    I will await eagerly to see if anyone has some witty and arcane comeback to my comment. Idiots, fucking goddam idiots.

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