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Red flag laws enable courts to strip Americans of their gun rights without due process because someone thinks they might be a danger to themselves or others. In an as-applied case in New York state, the New York Supreme Court (which, confusingly, is not the state’s highest court, that’s the Court of Appeals) ruled that the Empire State’s red flag law runs contrary to the Constitution.

The decision only applies to the individual in this particular case, however it represents a shift in jurisprudence. In fact, it may spell the beginning of the end of red flag ex parte orders in which the order is issued without the respondent being allowed an opportunity to defend him- or herself.

From the Epoch Times . . .

The New York law that enables the confiscation of guns from people who haven’t committed a crime is unconstitutional, a state Supreme Court judge has ruled.

This red flag law, or the Extreme Risk Protection Order law, lets individuals—including police officers—petition a court to allow the seizure of firearms from a person they believe poses a threat to themselves or others.

If a judge agrees, the judge can direct law enforcement to take guns from the person in question.

The law, which took effect in 2019, has led to the issuance of more than 1,900 removal orders.

However, the law is in violation of the U.S. Constitution’s Second and 14th amendments because it doesn’t “sufficiently protect a citizen’s rights,” state Supreme Court Judge Thomas Moran said in a ruling in late December 2022…

In addition, under the U.S. Supreme Court’s standards in its 2022 ruling striking down New York’s concealed carry law, the red flag law doesn’t fit under the nation’s tradition of regulating firearms, the judge said.

The majority said in the 2022 decision that the Constitution protects people’s rights to carry firearms and that a government must, for each gun restriction, “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

“This Court is not unmindful of the dangers firearms may pose when possessed in the hands of a person suffering a mental illness, harboring a criminal intent, or both. However, when viewed objectively, [the law’s] goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be condoned by this Court,” Moran added. “While some may advocate that ‘the ends justify the means’ in support of [the law], where those means violate a fundamental right under our Bill of Rights to achieve their ends, then the law, on its face, cannot stand.”

If nothing else, this New York Supreme Court decision should offer a roadmap for a facial challenge to strike down the law state-wide.

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75 COMMENTS

  1. Red Flag laws remind me of those bastions of Social-lism like China, Russia and Nazi Germany.

    The accused doesn’t even know he’s accused until the executioner puts a bullet in the back of his head.

    • Michael A Crognale, Not likely, the judge’s decision is pretty broad. It basically says that these “Red Flag Laws” deprive people of their right to due process. Kinda hard to get around that.

        • MARK, That is true in part. You see as there are Federal Constitutional issues involved, the plaintiff can move the matter to the Federal District Court, from there it can make its way to the US Supreme Court where the State Courts will be admonished and their contrary decision thrown out.

        • Mr Crognale, while they can “try”, they will find they are pissing up a leg. The plaintiff in this case can move the case to the Federal District Court where it should have been brought to begin with.

  2. Waitaminute…

    New York’s Appellate Court outranks the NYSC? So the title Supreme doesn’t really mean supreme?

    “You keep using that word. I do not think it means what you think it means.”
    – The Great Inigo

      • WWthe3rd,
        You might find As You Wish: Inconceivable Tales from the Making of The Princess Bride, by Cary Elwes, interesting.
        Meatheads politics suck, but he makes some good movies.

    • “So the title Supreme doesn’t really mean supreme?”

      Correct: It’s a NYS title, a designation only. If you ever watched “Law and Order” (which I haven’t for years since the guilty were always rich, conservative white guys), you’d have picked up on that years ago.

      • Believe it or not, I’ve never seen a single episode of L&O or any of its spinoffs over the years. That and any of the Chicago:PD/FD/MED series.

        I have little interest in NYC or Chicago based dramas, where the public is shown as subservient to LE instead of being treated as equal-under-the-law citizens of their communities.

        Mrs Haz and I are about five years in to the thirteen-year run of The Closer / Major Crimes (about 200 episodes total), which ran from 2005-2018. Based in Los Angeles.

        • I have watched a few, L&O episodes, Haz. What I always found interesting, was the way the LEO’s compelled the innocent to give up their DNA to “prove” their innocence.

        • Shadow, actually is is done with a Search Warrant to obtain a blood sample (DNA) or a “cheek swab”. If the suspect is willing to give up the DNA sample, he is of course free to do so. What compulsion?

        • Oh, it just appears, Walter, that the LEO’s are able to get DNA without warrants, so long as they convince said person to willing give it up, in the name of “proving their innocence”. Thus, getting around the fact that they didn’t have a warrant to begin with. And anymore, who says any of them need warrants to do anything?

        • Shadow, if a person is willing to give up their DNA, of course it is legal. There is NOTHING in the law that prevents a police officer from asking, is there? If the person is savvy enough, he will not give the police anything without the advice of his / her attorney. You are trying to deal in absolutes. In the human endeavor there are NO ABSOLUTES. Are there?
          The rule of thumb in an investigation by police is to ask first. If the subject is willing to give up his DNA, he is probably innocent. If the subject refuses, then the police if they have SUFFICIENT probable cause can obtain a search warrant. In an interview, the police are allowed to lie to the subject. It is paramount when you are being interviewed by police and you are a “person of interest” or a suspect, get an attorney.

    • I Haz, that is the way the NYS Court System is set up. The Supreme Court in NYS is the “court of original jurisdiction.” Appeals may then be taken to the Appellate Division within a given Judicial District. The highest court in NYS is the New York State Court of Appeals.

    • You are correct and on first impression it appears confusing even to a NYS resident, however, it actually makes sense. I am a lawyer living and practicing in New York. The reason for the title is because in New York we have 3 levels of government, State, County and City/Town/Village. Each of the distinct Govt entities has its own jurisdiction and trial Court system; a great many of NY’s many lawsuits (civil and criminal) are disposed of in the local trial Court. The Supreme Court sometimes acts as a quasi-appellate court for the locals. However, all appeals, even appeals of the quasi-appeals heard in Supreme Court, get heard by the two tiered appeal system of 1st the Appellate Division (divided by political districts) and then the state wide Court of Appeals which is what most people would recognize as the “Supreme Court” of New York and which decides which cases that it will hear. To make it more confusing there’s even an appellate Court, The Appellate Term, for a number of the crowded downstate local Courts that acts like the mid-tier Appellate Division which Court (Appellate Division) then acts like the Court of Appeals and can decide whether or not to take your case.

      So in the end this decision is just a trial court decision but it is binding on all lower local Courts in the State which are the Courts most likely to hear any individual’s ERPO case. The Supreme Courts sit by county and this decision is not binding on the other County Supreme Courts, it is merely suggestive; it needs to be upheld by the Appellate Division and then either upheld by the Court of Appeals or have that Court refuse to hear it to become binding across the State.

      While I am a lawyer, this is not legal advise and do not construe it as such.

        • “Thank you for this rundown…I can’t speak for others but I appreciate your input.”

          Maga dittos!!

      • *rubs eyes, feels the vertigo coming on*

        Thank you for the description. Even with my seasoned years under my belt, there is always something more to learn each day.

        That said, I’m just as befuddled and perpleximicated as before, though at least you’ve served as a beacon to lead me out of this fog. NY is a strange land full of strange people and strange ways. 🙂

        • Haz,

          Just replace Supreme Court with “trial court”. After that, everything is an “appeals court”.

    • Haz,

      Yep. Stupid as it sounds, the “supreme” court in NY is the “Appeals Court”. Weird, but true.

      I’m sure there is some obscure historical explanation for this, but I have no idea what it is. To the best of my knowledge, NY is the only state who’s ‘supreme’ court isn’t called the “Supreme Court”. I dunno why.

  3. Red flag laws enable courts to strip Americans of their gun rights without due process because someone thinks they might be a danger to themselves or others.

    Mr. Boch accurately described the messaging (including its implied virtuous intent) that the civilian disarmament industrial complex uses to push adoption of red flag laws.

    Of course that messaging does not reflect the actual goal of the civilian disarmament industrial complex. Far more accurate: “Red flag laws enable courts GOVERNMENT to strip Americans of their gun rights without due process because someone thinks CLAIMS they might be a danger to themselves or others.”

    Thus the actual intent of red flag laws is far more problematic: provide civilian disarmament proponents with a “legal” process to harass and/or seriously punish political enemies who own firearms.

    Every time a political entity comes forward with some new initiative, we should view it with the same level of mistrust that a smart and attractive woman should employ when a known womanizer begins flattering her.

    • buy as many guns as you can…any way you can…and hide them everyehere you can…do not keep them all in one place and you will never be disarmed!….

  4. If you can take it you can have it. Been practicing, got everything ranged. Tired of the harassment, GOD with me is a majority.

  5. There is a way around these issues, a solution that has been around for decades. I assume every state has some version of a law that permits a person to be taken to a mental health facility for evaluation as to whether that person presents a danger to himself or others. If the person is not found to be a danger after the evaluation, the person is free to go on his/her way. If however that person is a danger, usually of suicide, the facility may ask that person to be voluntarily admitted, or may petition the court which, after a hearing in which due process protections are provided, make that determination. If the person is involuntarily admitted, then the law permits confiscation of firearms. Using this procedure protects the due process rights of the individual, and do not result in a confiscation absent an involuntary admission.

    • Mark N, there is here in NYS. Section 9.41 of the NYSMHL allows a police officer to take into custody any individual for evaluation if the person appears to be mentally ill and is conducting themselves in a manner which is likely to result in serious harm to themselves or others, and when there is a substantial risk of physical harm.

    • Mark N.,

      A point I’ve made before. EVERY state has a law that allows involuntary commitment of a person who is “a danger to themselves or others”, but only AFTER an evidentiary hearing in which the subject is allowed counsel, the right to confront witnesses, etc. (i.e., ‘due process’).

      “Red Flag” laws are either a gross abuse of due process, or totally redundant to existing laws for involuntary commitment, or both. “But if we kept ‘red flag’ laws, but required due process’ . . . we’d have the same damn laws we have now. Stupidest damn thing since dacian, Prince Albert, and MinorLiar.

      • Lamp, not true in NYS. A Police Officer can take an individual to a public health officer (any doctor licensed to practice in NYS usually an ER physician ) to be evaluated and subsequently committed to an mental hospital or ward) for the purpose of an evaluation. That evaluation is INVOLUNTARY and can last up to 10 days. At the end of those 10 days, the patient has to be either released or brought before a Supreme Court Justice (In NYS Supreme Court Judges are also called Justices.) for a hearing if the patient so requests.

        • In California, it is Welfare & Institutions Code section 5150, and a police officer has the right to take an individual into custody and transport that person to a treatment facility for for “evaluation and treatment” if the police officer has probable cause to believe that the individual is a danger to himself or others. It is only a three day hold, and does not effect gun rights absent an involuntary confinement. As in New York, there is no involuntary confinement absent a hearing before a judicial officer. Plus the individual can consent to admission to a facility, which again has no effect on gun rights.

  6. If you all recall about a year ago Justice Thomas clarified that law enforcement cannot enter your home without a warrant. There are some exceptions to that but they involve either chasing a criminal or being aware that a crime is being committed in your home like domestic violence or a criminal break in. Simply to demand to come into your home without a warrant is illegal. You should NEVER invite law enforcement into your home unless you have called them specifically to do so. Remember once you invite them in if you have anything illegal in sight they can arrest you.

  7. Realistically, there is very little which government can guarantee us. Government can’t guarantee our safety from treats foreign or domestic. Can’t guarantee us food or shelter.

    Yet, there is one thing that government can strive to guarantee. That is, it will follow well developed proceeders to protect us from governments arbitrary and capricious behavior. One of these is the 14A guarantee of due process before depriving us of rights. Another is trial by jury, grand jury indictment.

    It bodes ill for our future when government begins to weaken these procedural safeguards from government actions that might be arbitrary and capricious. If they can deny us due process for guns they can deprive us from due process for criticizing our elected officials.

    • Or preventing potentially fraudulent medical products being heavily encouraged (forced at any level they can get away with) on us under experimental status.

  8. Red Flag laws in New York will simply be rewritten because the Liberals are quite resilient. Most nut cases usually are their own worst enemies and its not hard to trip them up so they incriminate themselves. Once a minor or major law is broken the new Red Flag law will kick in allowing seizers of firearms.

    Red Flag Laws are really nothing new. In my neck of the woods as far back as the 1950’s cops regularly confiscated weapons from people they considered dangerous or nut cases without an official Red Flag law ever having been on the books.

    New York could easily add a new Red Flag Law that would kick in if a person committed only a minor infraction of dozens craftily written new laws as well as older existing laws. The old adage “You cannot fight City Hall and Win” is as true today as it was back in the day. Those with absolute power do not enforce the laws rather they make them up as they go along. Its always been that way.

      • SAFEupstate,

        You could have omitted the word “here”, and your statement would have been more true, and more ‘inclusive’.

        dacian the demented dipshit is a drooling moron. Oh, and totally uneducated.

      • SAFE to say that dacian the DUNDERHEAD has no idea of what he is talking about should be a foregone conclusion.
        I have shown that he is not the ‘expert on firearms” he claims to be and certainly has no clue what rights are contained in the US Constitution. I have my doubts as to whether or not he is a US citizen.

        • Walter you fell head first into the shithouse on that statement i.e
          Quote———–I have my doubts as to whether or not he is a US citizen.——-quote

          You just proved what I posted in my above statement i.e. “Anyone who disagrees with the demented Far Right has to be a Commie, pinko, fag who also resides in another country because free speech and critical thinking are not tolerated by the jackbooted Fanatical Far Right. Hitler would have worshiped you.

        • dacian, the DUNDERHEAD, you have proven absolutely NOTHING. The fact is you know nothing about the Constitution and the rights guaranteed by that hallowed document thus making your “claim” to being a US citizen at best suspect. You don’t just “disagree” with me on Constitutional issues, you have no comprehension of what is even in the document. You have hysterically manterrupted the meaning and reach of the Heller, McDonald and Buen decisions trying to limit their sweep. Your idea of the 1st Amendment is that you have the right to lie and not be called on it. I do in fact suspect you are a Leftist with decided predilection towards wanting government control over most aspects of our lives. Conservatives do not feel that way.
          Are you a “Commie, pink, fag?” I have not made any such pronouncements. But if you want to confess…
          As to the jackbooting, I suggest you look at your own Fascist brethren, ANTIFA.

      • Walt and Lamp I am trying to allow for his not being totally useless beyond useful idiot. Fools errand probably but I do hope for redemption wherever it may be found.

    • “. . . because the Liberals are quite resilient.”

      Are those the same liberals who melt at the sight of a Pop-Tart being chewed into the shape of a gun?
      Are those the same liberals who demand safe spaces? The ones with puppies, crayons, and cookies?
      Are those the same liberals who screech an opposing point of view is . . . violence?
      Are those the same liberals who violate others 1stA rights over a MAGA hat?
      Are those the same liberals who defend a “trans” student to rape?

      Quite resilient, indeed.

      • You chose the right moniker i.e. Epstein.

        Like most of the Far Right you are certainly not a product of higher education as your ignorant post shouts to the world.

        In the first place a transgender, or gay person is no more likely to break any laws than are heterosexuals. You’re slander of Trans people only shouts to the world your total ignorance about them. Its vile and disgusting.

        And you mentioned the 1st Amendment. That has always been the first target of the Far Right. Just as Hitler muzzled the press the Far Right Radical Republicans in the U.S. are constantly trying to do the same here in the U.S. I might add every far right forum I have ever been on does not allow free speech and everyone making a comment must tow the jackbooted party line.

        And your reference to an opposing point of view being met with violence, that is standard operating procedure with the Far Right Storm Troopers. They permit no opposing viewpoints as they worship blind allegiance to authority. Everyone who disagrees with the Far Right is labeled a dangerous Commie, pinko, fag that is to be attacked on sight. None of them have ever learned how to think critically. Hitler would have loved to have all of them in his jackbooted storm trooper legions as they follow his teachings line by line and word by word hating all minorities, all other religions and all other races. They are all xenophobes, and all hate immigrants and refugees. All of them hate Unions as well which have fought for workers rights and higher wages and benefits for decades. Why these Morons would oppose Unions defies all logic and all sanity.

        I image you posted this while sitting in the outhouse while reading a copy of Breitbart News. Too bad your leader Steve Bannon is soon to be imprisoned. I am sure you will scream it was the result of a Commie Conspiracy.

        • Political uniparty with fascist overtones but commie is close enough for easily grasped shorthand for just about everything you mentioned. Hope you have some useful skills or you will be against the wall before many of us.

        • dacian the DUNDERHEAD, as to your contention that “Far Right” people are less likely to have “higher education”, that is not a indication of anything regarding intelligence, nor any indication that a person with a “higher education” as any common sense. You are an example of a “higher educated” person with absolutely NO common sense.
          As to the predilection of gays being more prone to crime, than a hetrosexual, you are right. There is no real evidence of a gay person’s predilection to crime than a hetero. On that we agree but I venture an educated guess that is the ONLY thing you are I agree on.
          Your claim that the Right is trying to silence people is absolutely B/S 1st Degree. In fact it has been historically you Lefties that have tried to silence Conservative voices, in academia, in the media, etc. Again, I point out that you Leftists are bed folks with the Fascists and Nazis. You historically have used their tactics to impose control over people.
          I sincerely doubt that you have the ability to use an outhouse. Your swelled head would not fit in through the door.

        • Dacian,
          Cannot you not read? My handle is Epstinedidnotkillhimself. Or did you just not get past what you wanted to see?

          Everything I listed are facts.
          They actually happened.

          Liberals melted down at the sight of a Pop-Tart chewed into the shape of a gun.
          Liberals did in fact demand and are still demanding safe spaces.
          Liberals have insisted that words are violence.
          Just recently the United States States Court of Appeals for the Ninth Circuit ruled in favor of a teacher exercising his 1stA rights to wear a MAGA hat.

          The “trans” boy in a Fairfax VA raped a girl. He also raped another girl in another school. The “trans” boy was found guilty, and the judge even commented how disturbed she found the “trans” boy.
          The highly liberal and immoral school board tried to cover it up.
          It was in the news.
          But you over educated types are not very well informed.

          The Twitter Files have shown all those things you claim are right wing, are actually tactics Leftist liberals are using this very day. Adam Schiff pressured pre-Musk Twitter to ban journalists on false claims, so much that initially Twitter refused to, “this isn’t feasible/we don’t do this.”
          Again, this was in the news.
          Again, you over educated types are not very well informed.

          Both of my grandparents immigrated to the country legally. I support legal immigration. Not illegal immigration. I respect the law. As should they.

          Once unions represented the well being of their workers. Not any more.

          “I image you posted this while sitting in the outhouse while reading a copy of Breitbart News.”
          1) I dont have a outhouse.
          2) Breibart News does not have a printed physical copies. I just looked it up.
          3) I dont read Breibart.

          You seem to put high value on higher education.
          You can be educated and still be an idiot, as you prove here daily.

    • dacian, the DUNDERHEAD. As usual, your knowledge of Constitutional Law is non-existent. You see under the Federal Constitution you canNOT deprive a person of his/her rights without due process. The RED FLAG LAWS only provide “due process” after the fact, i.e.: after one’s firearms have already been taken. The US Constitution specifically states that you canNOT deprive a person of his property without due process at each and every stage of the proceedings.
      Just because in your “neck of the woods” the police confiscated firearms without due process does not mean that it was legal.
      But then again, isn’t the whole issue here your control over people?

      • to Walter

        And your none-solution is completely full blown nuts. You first let a nutcase kill his wife and family and then cheer that his Constitutional rights were not violated. What the fk about the Constitutional rights of his dead wife and family. I imagine this is way to far over your head.

        • If you had an education you would understand, dacian. The man killed his family. Not the government. He is solely responsible for his crime. The .gov is responsible for seeing that all human and civil rights are honored. And they are responsible for punishing the criminal husband for his crimes against his family.

          Your non solution is to violate the rights of all gun owners without due process for the actions of one.

          Your Fascist way of thinking leads to black folks being locked up simply because they are black. It is the same program. One black man commits a crime and all are guilty. One gun owner commits a crime and you want to punish all.

        • “None solution”? Don’t you mean non-solution? ROFLAMO. Talking about awkward sentence structure. The RED FLAG LAWS in fact deny a defendant the right to due process at each and every stage of the proceedings.
          For your edification this country is based on the rights of the individual to be treated fairly and equitably under the law. Miranda and a host of other Supreme Court Decisions mirror that.
          I find it absolutely duplicitous of you and your Lefty cohorts to espouse Constitutional rights for an accused criminal, but not for a gun owner.
          For your edification, I know of at least three cases where someone complained to police to get a RED LAW decision to confiscate someone’s firearms and the accusations turned out to be false.

        • Walter you twisted far right nut case.

          In the case you screamed about the fellow could get his guns back through a legal process but you cannot bring back the dead when a nut case kills his wife and family. Now you pathetic paranoid nut case try and lie your way out of this one.

          Of course demented Walther you will now quote Hitler and say “Losses can never be too high” when it comes to sacrificing the innocent on the demented altar of no gun control.

        • You’re the one quoting hitler, dacian. Cancelling a persons civil rights because they might commit a crime in the future sounds like Fascism to me.

        • dacian, the DUNDERHEAD, do you really “think” that guns are the only way murder is committed? If a guy is going to get his guns back because of FALSE ACCUSATIONS by the other party to the police, then the accuser isn’t going to be dead, is he? “If” in one hand and you know what is in the other? It is not paranoia if you are being threatened or attacked by an aggressor. You have this idea (sic) that the police can do something about it. WRONG! For your edification police can’t prevent a person from carrying out a threat. You see we have this thing called the 1st Amendment. And you claim to be a “citizen”? Of what country?
          For your further edification, Walther is a gun maker. I am not. LOL. But I do own a few. Much to your chagrin, I am sure. sister dacian is right. You were bounced on your head as a child. I wonder if it is still going on?

        • dacian, the DUNDERHEAD, do you really “think” that guns are the only way murder is committed? If a guy is going to get his guns back because of FALSE ACCUSATIONS by the other party to the police, then the accuser isn’t going to be dead, is he? “If” in one hand and you know what is in the other? It is not paranoia if you are being threatened or attacked by an aggressor. You have this idea (sic) that the police can do something about it. WRONG! For your edification police can’t prevent a person from carrying out a threat. You see we have this thing called the 1st Amendment. And you claim to be a “citizen”? Of what country?
          For your further edification, Walther is a gun maker. I am not. LOL. But I do own a few. Much to your chagrin, I am sure. sister dacian is right. You were bounced on your head as a child. I wonder if it is still going on? I also pointed out your misuse of the English language. Did you forget that?

      • they take them…you get a lawyer…and you get them back…of course all of that is going to put a serious dent in your pocketbook…no matter how it turns out the lawyers never lose….

        • frank, If you get a decent lawyer, and you can prove that the confiscation was based on fraudulent information that the authorities should have known was fraudulent, you can recoup your attorney’s fees in a court of law plus penalties. Should this be necessary? Or course not, but unfortunately, there is no other recourse in the current climate. You are right about one thing. Lawyers never lose.

    • ” the Liberals are quite resilient.”

      Yes, we know dacian. When you were a baby, my friends and I would drop you on your head, and watch you bouncing around. Mama would scold us, but she couldn’t argue that you were “resilient”. You were almost as good as a Super Ball – boing boing boing boing – nobody could predict when or where you would stop bouncing on your resilient little head.

  9. The NY gun grabbers keep setting themselves up for failure.
    Their laws keep getting struck down, setting precedent and strengthening gun rights and the 2ndA.
    Please NY lawmakers, keep coming up with un-Constitutional laws for the courts to strike down! Given enough time, they will paint themselves into a corner they cannot escape.

    • Well…..yeah. Ultimately the reactions from NY, NJ, CA and others will fundamentally remove control options from those seeking power in any legal let alone moral sense. They could try violent overthrow and rule by force but there are a lot of guns and most of the military that would be useful past drone strikes has had recruitment issues for years with a sharp decline recently. This of course is assuming they can get the orders enforced. Smart money is on a lot of noise and “grassroots” public outcry and quietly moving on to other issues like voter reform.

  10. Red flag laws?

    There’s a guy in DC with dementia who has nuclear weapons. Certainly DC Police should have red-flagged him and confiscated his nukes?

  11. What penalty do Governors and Legislators pay for knowingly violating the constitutional rights of their citizens?

    If the answer to that question is “nothing” then expect an endless stream of unconstitutional laws designed to delay and discourage the exercising of those rights.

    A right delayed is a right denied.

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