Some ‘Red Flag’ Laws Are Unconstitutional—and Could Kill More People Than They Save

March 4, 2019 Updated: March 4, 2019

Commentary

Mass shootings by mentally disturbed gunmen have encouraged the adoption of state statutes called “red flag laws.” They permit police or citizens to begin legal proceedings to confiscate firearms from people who allegedly pose a danger to themselves or others.

Such laws can be useful if carefully and narrowly drafted. But some aren’t carefully nor narrowly drafted. Within the past few weeks, both Colorado and New York state have adopted or are about to adopt red flag bills that violate protections in our Bill of Rights. Poorly drafted laws may prove useless in practice—and might even increase crime.

Red flag laws authorize two kinds of confiscation orders. The first removes firearms without notice from their owner for a few days or weeks, until a hearing can be held. After the hearing, the judge may grant a more permanent order, perhaps for a year. Or the judge may deny the more permanent order and vacate the temporary one.

The greatest potential for abuse arises when the police or a citizen (“the petitioner”) seeks a temporary order without informing the gun owner. Guns are property, and the Fifth and 14th Amendments to the U.S. Constitution provide that people may not be deprived of property without due process of law. The Supreme Court has ruled that before the government can confiscate or infringe upon property, the owner is entitled to an opportunity to defend himself or herself. He or she is entitled to have a lawyer, cross-examine, and take advantage of other procedural benefits afforded by our Anglo-American legal tradition.

Accordingly, courts rarely grant protective orders without notice. If you want such an order, you have to show an immediate emergency. Specifically, you have to show you are in imminent danger, and that a protective order is the only remedy.

Mere allegations are not enough. Usually, you must meet a demanding level of proof (“clear and convincing evidence of imminent harm”). Further, you may have to post a bond to protect the defendant against damage in case your accusations prove false or exaggerated.

Once issued, orders without notice typically last only a few days. Rather than make any changes, most simply protect the status quo. For example, an order may restrain the defendant from harassing the petitioner before a hearing or from hiding or destroying assets that might be used to pay a debt.

Some red flag laws ignore those traditional safeguards. Instead of requiring proof of imminent danger, the pending Colorado law requires only a “significant risk” of damage in the indefinite future. In New York, the standard of proof is only “probable cause,” and in Colorado, “a fair preponderance of the evidence.” Neither state’s law requires the petitioner to post bond, even if he or she can afford to do so.

Most importantly, these temporary orders go far beyond maintaining the status quo. They are orders of confiscation, which police can enforce by invasion, search, and seizure.

In 1969, the Supreme Court held that even freezing property (much less removing it) without a prior hearing violates due process.

Violating Amendments

Some red flag laws may violate other constitutional rights in addition to due process. They may run afoul of the Fifth Amendment’s rule against taking of property without compensation. They may threaten the Second Amendment right to keep and bear arms.

The Sixth Amendment mandates certain protections for defendants in criminal prosecutions. Red flag procedures aren’t criminal prosecutions, but they can lead to harsher punishments than some criminal convictions. So it’s fair to test them by Sixth Amendment standards.

Among the protections in the Sixth Amendment is “the right to … trial, by an impartial jury.” Red flag laws generally don’t provide jury trials. Even in the hearing for a permanent order, a single judge decides everything.

The Sixth Amendment also protects the right of a defendant “to be confronted with the witnesses against him.” But the Colorado red flag statute doesn’t require the petitioner or his witnesses to show up for the hearing. Instead, the court may hold the hearing by telephone. This can make it much harder to assess the credibility of those testifying. Even worse, the Colorado law doesn’t even require live testimony. The petitioner can present all of his or her evidence by affidavit, where it cannot be cross-examined.

So much for your right to be confronted with the witnesses against you!

You might ask, “Isn’t a judge likely to be skeptical of the petitioner’s case if the petitioner testifies only by affidavit?” Certainly, a judge should be. But petitioners can often come up with suitable excuses for not showing up in person. And many judges today are products of an elite legal culture hostile to firearms ownership, and may have an unconscious bias against a gun owner.

Practical Dangers

The Constitution’s procedural rights are not mere technicalities. They are literally the product of centuries of experience, both in America and in England. They embody not just what is fair, but also what works.

Consider the practical dangers when someone can obtain a temporary confiscation order against another without notice and on relatively weak evidence. Many people—particularly women, the elderly, and the poor—rely on their firearms for self-defense. This is especially true in cities with rampant crime, where the police are overwhelmed. An abusive, estranged husband could have his wife disarmed without prior notice, and then attack before a full hearing corrects the injustice. Or a family member could claim that “Granny is senile and shouldn’t have a gun,” preparatory to robbing her.

Laws like this are likely to sow suspicion and distrust among many, inducing some to shoot rather than give up their weapons.

Red flag laws must be drafted to protect constitutional rights. Otherwise, even if the Supreme Court doesn’t void them, they may cause more deaths than they prevent.

Rob Natelson served as a law professor for 25 years at three universities. He taught constitutional law, and is now senior fellow in Constitutional Jurisprudence at the Independence Institute in Denver. He is the author of numerous books and articles, including “The Original Constitution: What It Actually Said and Meant.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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