By Gilbert Ambler
Yesterday I was in court on a domestic-related issue involving a firearm. My client was in a bad position. He was someone who had never been in trouble before when all of a sudden, after a disagreement with his girlfriend, he was thrown into the legal system.
This started as a situation where he was attacked by his girlfriend and he called the police for help. When police arrived, as my client waited outside his apartment, the police went in, spoke with his girlfriend, and then marched back outside and arrested him. His girlfriend had told police that he pointed a gun at her.
The allegation alone got him arrested. Fortunately, things went well for us in court. The girlfriend, who had lied to police, decided that even though the couple was now separated, she did not want to get on the stand and further perjure herself by telling more falsehoods. The charges against my client were dismissed.
“Red flag” confiscations often start with just such a complaint. This particular issue began as a false allegation that resulted in my client’s arrest, my client having to pay me, and my client having to take time off of work to appear in court on two separate occasions before we got charges dismissed.
What happened to the lying girlfriend? Absolutely nothing. Do you really think those who lie when making a red flag report will be prosecuted? Keep in mind, that even in an alternate reality where they are prosecuted, to be convicted of making false statements they would have to be proven guilty beyond a reasonable doubt. This is unlikely.
Meanwhile, the gun owner’s weapons are seized based on the much lower civil standard of a preponderance of the evidence.
Why would we expand the ability of the system to perpetrate such injustice? Why would we voluntarily create avenues for people to harass gun owners with no real repercussions for abuse of the system? Most importantly, why would we allow a confiscation system that seems to simultaneously impact so many of our constitutional rights at the same time?
The First, Second, Fourth, Fifth, Sixth, and Fourteenth Amendments are all impacted by proposed red flag laws. We know what these laws look like. Where implemented, these laws generally allow the removal of firearms from someone’s home, without notice or an opportunity for the gun owner to be heard in court in advance of the removal, based on the allegations of a third party.
Constitutionally, lack of procedural due process as provided for in the Fifth and Fourteenth Amendments is impacted through lack of prior notice and opportunity for the gun owner to be heard. Neither does the gun owner get to have an attorney advocate for him in court before removal of his weapons, implicating the Sixth Amendment.
Your ability to keep and bear arms is limited, obviously impacting the Second Amendment, and when what you say can be construed as a threat such that you are suspected of being a “danger to yourself or others,” that impacts the First Amendment.
Almost more concerning is the impact red flag laws have on the Fourth Amendment limitation on unreasonable search and seizure. While the Fourth Amendment has already been eviscerated judicially limited, red flag laws take this to a whole new level.
Without articulation that any crime has yet been committed, or that probable cause of a crime exists, your home is searched for weapons. Think law enforcement will just grab your rifle and leave? Doubtful. Could every tiny corner of your home contain ammunition or even a miniscule NAA .22 revolver? Then it can and likely will be searched.
Whatever is found will be used against you. Your teenage son had weed hidden in his dresser? Enjoy being prosecuted for that. Even without having anything to hide, who wants state troopers rummaging through your underwear drawer?
Another common misperception: do you think law enforcement officers will refuse to carry out these potentially unlawful searches? Don’t be naïve. Ask yourself whether state troopers in New Jersey (who also take an oath to uphold and defend the U.S. Constitution) will happily arrest you on constitutionally dubious grounds should you be caught with even a single hollow point round in your glovebox while in the state.
Maryland law enforcement has already shown up and killed a gun owner while carrying out a red flag confiscation order. Law enforcement will do what they have been trained to do…enforce the laws that they are told to enforce.
Importantly, most states already have a procedure in place to deal with persons who appear to be a threat to themselves or others. These procedures assist people in getting help, and commonly hold them for up to 72 hours, or longer with judicial sign-off to make sure that they do not harm themselves or others.
Allowing a potentially dangerous person to stay in place, but raiding their home to confiscate firearms seems suspiciously like a method designed to confiscate firearms, not a method meant to actually stop threats.
Such gun-grabbing should not be tolerated in our country. When British soldiers attempted to seize the arms of colonists, the colonists fought back. I can only imagine the type of threat that the colonists would have been perceived as today.
While I am certainly not advocating people take up arms against the government now, I think that a more modern and more peaceful approach to vigorous activism is in order. Learn about the threat of red flag laws when they are proposed in your state. Reach out to your politicians to point out the numerous constitutional failures of this kind of legislation.
Let politicians know that you will not vote for people who allow such extreme abrogation of your constitutional rights. Most importantly get out and actually vote against those who are so willing to see your rights violated.
Gilbert Ambler is the owner of Ambler Law Offices, LLC. He practices criminal defense in Virginia and Pennsylvania, with a particular focus on the Second Amendment and other constitutional issues.