Red Flag Laws Spur Debate Over Due Process
Posted by M. C. on September 6, 2019
You know our situation is bad when you have PEW and the ACLU fretting over your gun related rights.
In the year since Florida enacted its red flag law, Kendra Parris has defended nearly 20 clients against risk protection orders that could remove their firearms.
The Orlando-based lawyer has long represented people who might be subject to the state’s involuntary mental health treatment provision. But when this new law, meant to protect against people who might be a harm to themselves or others, passed in the aftermath of the February 2018 Parkland mass shooting, she saw yet another opportunity for the state to potentially deprive certain people of their civil liberties.
“It’s almost like a shiny new toy for law enforcement,” Parris said, “filing them left and right.”
Since the law’s adoption, Florida courts have approved around 2,500 risk protection orders, according to an August count by NPR.
Since Parkland, at least six states and the District of Columbia have passed red flag laws, which allow law enforcement agencies that have gotten a court order to remove guns from people considered a harm to themselves or others. In the wake of high-profile shootings this summer in Ohio and Texas, including one that killed eight people in Midland-Odessa this past weekend, more state lawmakers are considering such laws, as are some members of Congress.
Many law enforcement officials firmly believe the laws save lives, and lawmakers say they can craft legislation that won’t infringe on civil liberties.
But for two decades, since the first such law was enacted in Connecticut, civil and gun rights advocates have protested that the seizures violate the U.S. Constitution’s due process guarantee — meaning residents have a right to fully argue their case in court.
“Rather than find clear and convincing evidence, [courts are] basically saying, ‘Better safe than sorry,’” Parris said.
Most red flag laws are vague on what constitutes a “significant danger,” which gives courts broad discretion to seize firearms, Parris said. And in some states, respondents are not guaranteed representation in court, since these are civil and not criminal matters.
Many defense lawyers say respondents fare much better with legal representation. Of Parris’ seven cases that have gone to a hearing, she has won five — which she said is a “vastly higher” success record than when someone represents themselves.
Due Process Concerns
Seventeen states and D.C. have laws on the books that allow law enforcement or family members to petition courts to remove weapons from people who may be dangerous and prevent them from buying other weapons for up to a year. In many of these states, bipartisan groups of lawmakers led the drive to pass the legislation.
States define “red flags” differently, but they largely follow the same process for taking away somebody’s guns.
If someone is showing signs of erratic behavior or expressed some intent to hurt themselves or others, they might be subject to an extreme risk protection order. In most states with red flag laws, family or community members can petition a court for those orders. But in Florida, Rhode Island and Vermont, law enforcement officials are the only ones who can petition to remove firearms.
If there is an immediate risk of harm, a court can issue a temporary ex parte order to seize guns from people for up to 14 days in most states. Other states range from two days to 45 days. At those hearings, a judge can issue the order by listening to evidence from the petitioner.
In many cases, the subject of a petition can’t present a defense until the final hearing. But that’s where the process gets legally dubious to some critics.
Dave Kopel, research director at the Independence Institute, a Denver-based libertarian think tank, said states have taken the same approach President Donald Trump spoke in favor of in March 2018: “Take the guns first, go through due process second.”
When it comes to seizing guns through a temporary order, the standards that a judge uses should be high, Kopel said. Vermont, he believes, has a fair system, which requires “specific facts” that show “an imminent and extreme risk.”
The situation becomes even more precarious when loved ones can petition for the removal of firearms, he said. Spurned former partners or family members seeking revenge might “weaponize” this tool, he said. Because of that, he argues, there should be a penalty for maliciously false accusations, which several states have adopted…
In Rhode Island, the American Civil Liberties Union originally came out against the state’s 2018 measure until the legislature tightened the standard for granting a petition, created penalties for providing false evidence of a threat, allowed only law enforcement to file petitions, required specific evidence and granted the right to legal counsel in hearings…
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