red flag law confiscation due process
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So much for innocent until proven guilty. The proliferation of “red flag” laws across the country means that the burden of proof increasingly falls on gun owners to prove to a court that they’re worthy of retaining their gun rights. What could possibly go wrong?

Even taking the results of (Duke University medical sociologist Jeffrey) Swanson’s studies (on red flag laws’ effects on suicide rates) at face value, the implication is that the vast majority of people whose guns were seized—90 to 95 percent—would not have committed suicide had they retained their firearms. Meanwhile, none of these studies reported any effect on homicides.

David Kopel, a gun policy expert at the Independence Institute in Denver, says red flag laws may have an impact, even if it is too small to be detected by looking at suicide and homicide rates. “I think it would disarm some people who are suicidal,” he says. “And I think you have some people who are acting dangerously enough that a person with common sense would say, ‘Wow, that guy should not have a gun.’ It would address folks like that.”

But Kopel emphasizes the importance of procedural safeguards to protect the constitutional rights of gun owners, such as requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, and letting them sue people who file false and malicious petitions. He also recommends giving gun owners advance notice of confiscation orders unless there are special reasons not to do so, a policy that might have made a crucial difference in Gary Willis’ case.

Northeastern University criminologist James Alan Fox, an expert on mass shootings, shares Kopel’s concern that suddenly seizing guns can make violence more likely. “If you have an individual who’s angry, bitter, threatening other people, [and] owns a gun,” Fox told Reason’s Nick Gillespie in August, “the attempt to take that gun away can actually precipitate the very violent act that you’re trying to prevent.”

No existing law meets all of Kopel’s criteria. Washington state allows an even longer list of people to file petitions than Maryland does, including former spouses, former girlfriends and boyfriends, and former roommates. California’s list is almost as long, and a pending bill would expand it further, adding employers, co-workers, and school personnel. Colorado is the only state that guarantees a lawyer for respondents, and no state provides a civil remedy when petitioners lie. …

“It’s a great idea on paper,” says Dave Workman, senior editor at the Second Amendment Foundation in Bellevue, Washington. “The problem is the execution.” In practice, he says, red flag laws mean “you’re guilty until you prove yourself innocent.”

– Jacob Sullum in States Are Depriving Innocent People of Their Second Amendment Rights

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  1. The prevailing wisdom I’ve heard predominately from the left since 2001 was that marginalizing, attacking, or anything less than full love an acceptance of a peoples or persons beliefs, wants or needs would only serve to create more hate, distrust, violence and terrorism.

    None of that applies here I guess. Because guns? Because conservatives? Because Republicans? Because whypipo? Because all of the above?

      • The cure for ignorance is knowledge, and being ignorant on a subject doesn’t make a person dumb. Remaining willfully ignorant, is the definition of stupid, and the only cure for stupid is a bullet.

        It is ghetto speak for White people.

      • @In for a Penny, In for a pound

        “The cure for ignorance is knowledge, and being ignorant on a subject doesn’t make a person dumb. Remaining willfully ignorant, is the definition of stupid, and the only cure for stupid is a bullet.”

        Are you too goddamn righteous to be polite? Why didn’t you just answer the question without all the smart-ass bullshit?

      • The melanine impoverished majority who, according to Vlad, will be renditioned, enhanced interrogated (Progressives are big on confessions), and then mass executed as class enemies. All property will then be divided among the needy. Some of the senior Commissars just need beach side mansions. The economic impact of having untrained, unskilled, and uneducated people try to fill the gaps will be blamed on counter-revolutionaries performing acts of sabotage.

    • The first step in comprehensive gun confiscation is turning the practice of a constitutional right into an immoral act of deviance. Red Flag laws (Let’s do it for the kids) are an important step in that direction. 2nd Amendment rights are civil rights guaranteed by the constitution. Nonetheless, history shows us just how they can be set aside by institutionalized practices that, on examination, make no sense at all. Decades of racial segregation are a good example. Segregation was widely practiced, even supported by law, despite the rather obvious fact that it was in direct violation of the equal protection clause of the constitution. It took the Civil Rights Movement to set things (more or less) right.

  2. Does matter if they are suicidal. none of the governments business what they want to do with their life as long as they are not hurting someone else.

    • Very true. What ever happened to “it’s my body”? Why aren’t the “rules” consistent? 95% of Liberals are morons….

      • “my body, my choice” only apply to women who want abortions or women who become men and then want an abortion……. what a world we live in……

        • ““my body, my choice” only apply to women…”

          *Wrong* way to deal with that.

          Alinsky ‘Rules for Radicals’ # 4 – “Make the enemy live up to its own book of rules.”

          Either “My body, my choice” applies to all, or it applies to no one. It’s only fair.

          Being “Fair” is powerful MoJo to use on Leftists… 🙂

      • 95% of statistics quoted on the interwebs are made up fictitious partisan self-pleasuring bullshit.

        Except for the 95% that ain’t.

      • “Liberals” are not the problem. Liberals genuinely want to help their fellow man tend to be very tolerant and generally allow people to be free, except for taxing the producers to feed the non-producers. The problem is LEFTISTS. Each of them is a petty tyrant who puts the liberal label on themselves and then proves themselves to be intolerant and violent.

        • Let’s be honest here. The modern democratic party is the problem. Call them whatever you like. They support authoritarian policies under the guise of progressive or liberal politics. They also support hate and intolerance directed toward anyone that disagrees with them, including their very own “protected class of minorities” like LGBT, black, women, etc.

        • Remember when the left was still whypipo? Now whypipo are being ethnically cleansed from their homelands. When you replace Americans with Central Americans, you get a Central American country.

          Have any of you gone by a school recently? The kindergarten classes have like only one or two whypipo in them.

        • As Duke said, the democrat party is the problem.

          The basis of that problem is the democrat party was taken over by the communist party USA years ago. They are now going public with their plans all of which are dedicated to making the government fail so they can overthrow the constitution and create their communist utopia. At this point they are winning.

          When (not if) they take over the house, senate and POTUS they will proceed to dismantle any thought of following the constitution. Katie bar the door for disaster awaits us all.

          Be Prepared

        • That’s how the Newspeak works. Leftists call themselves Liberals even though they are anything but liberal. Freedom is slavery. Ignorance is strength. Diversity is strenght. You get the idea.

      • “Why aren’t the “rules” consistent?”

        Repeat it as a mantra and you’ll never be puzzled by leftists again:

        The issue is never the issue. The issue is always the revolution (i.e., more power for leftists).

        • “Why aren’t the “rules” consistent?”

          Make them consistent.

          If necessary, force them. After all, It’s only “Fair”.

          ‘Rules For Radicals’ # 4 – “Make the enemy live up to its own book of rules.”

    • I would beg to differ. The fundamental purpose of government is to protect its citizens. That said it shouldn’t be a tyrant doing such.

      • Wrong.
        The state is a fictitious entity by which one man seeks to live at the expense of another. Government has roles which include all the nice stuff but in the end it becomes a wealth distribution engine.

        • As in making the elite even more wealthy while holding back the average American. Thank God lower and middle class income is on the rise again. We’re ALMOST back where we were in 2007!

        • *Expect these gains to be erased and then some if people elect another socialist that promises to only stick it to those nasty rich people (wink wink).

      • Fundamental function of government is to do things that individual people can’t do by themselves (powers delegated as described in the Constitution).
        Your parents should keep you safe if you are a child, if you are an adult, it’s your own job.

    • According to leftists and Progressives, your life belongs to the state and suicide is willful destruction of state property. Punishable by death as a deterrent.

  3. Let us assume we could enact a law that meet’s Kopel’s criteria.

    Where in the world are we going to find judges who will obey the law?

    Take Vermont, for example.
    They enacted a law to disarm people who are determined to be a threat.
    A teen was determined to be a threat.
    The threat was taken into custody.
    After the threat was secured, a judge ordered cops to clean out the gun safe of a man who not only was not a threat, but also had never met the alleged threat.
    And it took months, and a nice pile of legal fees, for the victim to finally get his guns back.

    • “. . . and, letting them sue people who file false and malicious petitions.”

      One problem with this part (of a comprehensive solution) is that – often – the person seeking an order (accuser) to have another’s guns seized will be “judgement proof”. In such cases, often the victim unjustly accused will not have the resources to sue his antagonist.

      A partial solution to such problems would be to accept the proposal of allowing the victim to sue for damages; AND, to require the accuser to post a bond. For illustration, suppose the bond were for $1,000 and a bondsman charged a 10% premium to underwrite the risk.

      Naturally, if the accuser could post the bond from his own checkbook then it would cost him nothing. If he were cash-strapped then he would have to decide whether his risk would be economically mitigated if he begged/borrowed $100 to pay the bondsman. Is his loved-one’s suicide worth $100? His her own life worth $100? If not, then maybe the victim isn’t so much of a threat as first perceived.

      Assuming the victim ultimately prevailed, he would have a reasonable probability of persuading a judge that the accuser’s affidavit was not well-founded.

      One consideration – among many – is preventing cases of malicious SWAT’ing by neighbors or acquaintances with some quarrel to settle. Once the bondsman explains that an accuser will be turned-over to a collection agent if a judge orders forfeiture of the bond, accusers will think long and hard about abusing the courts to settle their grievances.

      • But that defeats the intent of red flag laws, which is to scare gun ownership underground and destroy the gun culture as we once knew it.

        • Money quote! Red Flag is class warfare against the `race, class, and gender’ enemy and serves no purpose other than disarmament. It has nothing N-O-T-H-I-N-G to do with public safety or suicide prevention. Guilty until proven innocent is Gestapo-KGB-Stasi stuff and nothing less.

          No society ever has a shortage of bullies waiting to be armed with total state power to enforce the state’s will.

    • As has been said before; Let’s play a game. Any game you want, but I get to make the rules of the game. I will win every time.

      As for 2A destroyers; let’s apply their rules to the other protections and see how they squeal. The 1st Amendment or the 4th would be a good start. Rhetorical question to the leftists; Why is it ok to single out one freedom and liberty guaranteed by our Constitution and not the others? Or is this (2A) only the first?

      I have become a single issue voter after always thinking that way was short sighted. Also, I have become a strong proponent of term limits for all Federal office holders. The evidence of corruption and scandal/pay to play is just too overwhelming to overlook at this point. BTW, what ever happened to investigative journalists? You know, the ones who took a genuine interest in looking at ALL corruption and not just that of their political enemies?

  4. I will not oppose a “Red Flag” law that requires the complainant to publicly swear before a judge the specific reason he/she believes someone else is a danger to him/herself or others, requires the court to produce a mental health professional who can attest to the complainant’s stability and mental health, and only after completion of that process request the police to detain the subject – WITHOUT any search or confiscation of any weapons – for an immediate appearance before the judge, the complainant, the mental health professional, and the officer(s) who detained the individual.

    The process MUST include the opportunity to postpone the hearing, at the subject’s request ONLY, for the subject “at risk” individual to obtain council. The “Red Flag” law must provide an opportunity for the subject and police to jointly inventory and secure all firearms, allow the subject to store the firearms with a third party, and mandate criminal penalties if the complainant, or the mental health professional were negligent, deceitful, or dishonest in their statements before the court. Further, the law must specify that, should the accusation prove false, No record of the process would appear on the subject’s record and all firearms returned within 24 hours.

    Should the individual be deemed a danger to him/herself or others, the law must require the court to dismiss the case and order the return of all firearms, immediately upon receipt from any qualified mental health professional, a statement that the individual is no longer at risk. And finally, the law must provide that no evidence obtained in a “Red Flag” action can be used against the subject, no weapon can be confiscated – even if determined to be “illegal” – and no weapons charge of any kind may be addressed against the subject as a result of acts, or evidence, obtained through the “Red Flag” process.

    Specifically, if 100% of the protections now offered to an innocent citizen, not accused of any crime or under investigation for any crime, are provided in the “Red Flag” law, the law overtly states that no evidence obtained during the process may ever be used against the subject, and the law specifies immediate return of anything and everything removed in the process, I am willing to accept the law.

    I will oppose any “Red Flag” law that imposes upon any constitutionally protected right of the subject or fails to provide specific direction that the individual be immediately made whole. (Remember, the US Supreme Court has specified that failure to follow an unconstitutional law is NOT a crime.)

    Essentially that means I oppose all of the “red flag” proposals the the left has offered to date, and I realize that what I stated above is unwieldy to the point of being unenforceable. I’m OK with that, I don’t see a need for red flag laws since current laws will provide more than adequate protections IF ENFORCED!

    • Enforce existing laws. Death threats should be felony assault. Everyone has a right to a fair and speedy trial.

      Red flags could ruin reputations. Health care professionals aren’t infallible. They could make an honest mistake or they could be highly biased. The end result is the same. Even if it’s removed from the official record, people have long memories. The fact that you were flagged, and especially if you were determined a threat from a professional, could be used against you in the future in job applications, personal and business relationships, etc.

    • In California, we call that a “5150”. It allows the police or a mental health worker to have someone taken to a mental health facility on a 72 hour hold for evaluation. If after 72 hours the facility wished to keep the patient against his or her will, a procedure is in place that calls for a hearing before a judge before an involuntary admission can occur. Many states have similar statutes.

      • Now that at least makes some sense. At least the dangerous peeson gets some help while out of reach of all weapons, not just firearms.

        I bet there are people who are ‘acting dangerously enough that a person with common sense would say, ‘Wow, that guy should not have a gun.’ But such people are still dangerous to themselves and others after their guns are stolen. I mean confiscated.

    • As to your suggestions being “unenforceable”, how come stupid ideas, exampled by bad legislation, Gun Control as usually and currently proffered and or this ERPO, aka Red Flag malarky being examples thereof can be enforced, but common sense legislative proposals such as you offered, punishment for liars and the incompetent who have wormed their way into positions of authority, cannot be similarly enforced.

  5. I will say I’m not into social credit.

    If someone is that much of a threat they need to go somewhere, not just home without their guns to hop in their truck and run a bunch of people over or to grab a can of gas from their shed and burn down an orphanage or something. It’s the person not the objects. Plain and simple.

  6. A day is coming when men and women will rise up against this commie line of thinking and i pity those who get in their way

  7. The left has set the ground rules. No due process. No innocent until proven guilty. And they established these rules on the eve of their defeat. Kind of short sighted.

    When they stand in front of a tribunal charged with treason, human rights violations and civil rights violations I intend to remind them that they established the rules that will make their guilty convictions swift and sure.

    • Man, I bet it would suck if it were “Capital Punishment” most dire…Like being Nailed To a Cross and Crucified…Burned at the Stake…The Golden Bull…What form of “Dire Captial Punishment” would be to good for tyrants and authoritarians?! What would be a solid deterrent from such behavior…?

  8. Why are we debating the details and minutia of laws we know will be abused as soon as the left has enough power?
    Don’t accept these laws with any conditions. A person can be disarmed after conviction of a crime, or at least that was the standard which passed muster. I don’t think non violent crimes should equal a lifetime ban but that opinion is not shared widely.
    If guns are taken without a conviction what other rights are next? 5th? 4th?6th?
    Expediting because others “feel” another person is a problem is a dangerous idea.

    • If guns are taken without a conviction, those other rights are already trashed. They’re the ones that are supposed to keep that from happening, whether it’s guns or something else.

  9. Wish TTAG had an up/down vote choice.
    Some comments are so good/obvious no reply is needed, just an up/down vote.
    Could this be done?

    • It *could* be done, but it’s better they *don’t*.

      It will attract a variety of commenters that are only in it for the votes (the ‘points’ of the game).

      TTAG will evolve into contest where people will compete for upvotes.

      No. No ‘voting’ on comments. Each post stands or falls on its individual merits, or lack of merits in the cases of ‘vlad’, ’49 er’, etc…

      • @Geoff;
        Works both ways, Enough down votes. often enough, get blocked, like vlad, et al.
        But do see your point.
        Let’s put it to an up/down vote!

  10. People slaughtered each other by the millions for thousands of years before guns were even invented. Guns, however, were essentially the first weapon to actually level the killing field. This is why islamoleftists want to take our guns. They want to rule is with an iron fist without us being able to do anything about it. I have news for them.

  11. The law that needs to be passed is the one that says any attack on the Constitution other than the legal Convention one shall be punishable by firing squad period.
    Always same bull shit “In the name of public safety. ” We the people need to put a stop to this crap. If you don’t like the Constitution convene a Constitution Convention and change it. Or better yet pack your bags and go to another country. Don’t worry you won’t be missed nd I will not write to you.

  12. The reason the left is pushing so hard for these red flag laws is to desensitize the police to better prepare them for the gun raids when their pet confiscation schemes enacted either through legitimate votes in COngress or the mob rule of ballot initiatives.

  13. California’s red flag law is misrepresented. The only people allowed to apply for a TRO are “close family members” who reside with the defendant or the police. Yes, there is a bill pending before the governor to extend that to employers (and in some cases co-employees) and educators. Second, the TRO requires that the applicant file affidavits/declarations under penalty of perjury as to the facts that are asserted in support of the application. Third, a formal hearing is to be held within 21 days (as I recall the time period) in which the applicant has the burden of proving by clear and convincing evidence that the defendant is a threat to himself or others. The defendant has the right to be represented by counsel, to introduce evidence, and to cross-examine witnesses. Currently, the injunction can last up to one year, but is subject to a one time challenge during that year to prove that the individual is no longer a threat to himself or others.

    To be fully forthcoming, there is a bill pending before the governor that would extend the injunction to ten years,. Ridiculous to be sure, particularly since none of these laws call for mental health treatment during that period. By comparison, however, a 5150 hold results in a ten year firearms ban (used to be five, but the Legislature is trying to find any way it can to disarm as many of us as it can.)

    • “The only people allowed to apply for a TRO are “close family members” who reside with the defendant or the police.”

      Not that I’m aware of. One of my own close relatives was the recipient of egregious injustice by a former friend who flatout lied to a judge and was granted a TRO. The person waited until my relative left his house for work one day, then entered through an unlocked door and squatted. When my relative returned home at the end of the day and called the cops, the interloper showed the responding LEOs a phony rental agreement, then the TRO, and had my relative physically removed from his own house!! It took him two weeks to sit in line to have his case heard before the issuing judge (and fortunately the judge reversed himself and threw the interloper into jail for contempt), but during that time he had no access to his clothing, personal items, computer, etc., most of which had been fenced for drug money by people the interloper had allowed inside the house.

      And that’s just one example. TROs are surprisingly easy to obtain if you know the people in the system.

  14. It seems the left is continually seeking proof of the utility of the Second Amendment and demonstrating why it was incorporated into the Bill of Rights.

  15. The only people who should be subject to red flag laws are the people calling for them. I hope Marion Hammer gets raided.

  16. With respect to Red Flag Orders, I don’t know which is more important to emphasize to proponents:
    (1) Red Flag orders violate our inalienable rights and bedrock principles of law.
    — or —
    (2) Red Flag orders are utterly and totally ineffective at stopping suicides and violent attacks.

    • Neither one matters.

      The people in question just don’t care. It feels good to “do something” and they’ll derive some personal benefit from it, so nothing you say will penetrate their wall of self-satisfaction.

      Being victimized by their own stupid law is the only thing that might change their mind…and even that is doubtful.

  17. Does anybody realize that a complainant may genuinely believe the person they turn in is a threat? You cannot prosecute the complainant then for lying, because they believed what they swore to was true.

    Buy insurance that covers red flag allegations, even if you do not own a gun.

    • What circumstance might contribute to the “genuine belief” mentioned, I wonder? The lay of tea leaves perhaps. By the way, what of the “injured parties” genuine belief that the accuser bore or bears hostility toward them. Such hostility could certainly color the “judgement” of the accuser.

      As to Dale Manard’s suggestion of the purchase of suitable insurance, the following questions pop into my mind, possibly because I’m simply suspicious by nature.
      1. Which carriers might offer the referenced coverage, and at what price glory?
      2. Might Dale have some connection with the insurance business?

    • Dale Menard,

      Does anybody realize that a complainant may genuinely believe the person they turn in is a threat?

      And that matters because … ???

      Our nation’s bedrock principle for over 240 years is that government does not interfere with a person’s life until that person has FIRST interfered with someone else’s life.

      Your “sketchy” neighbor who has a scowl on his face, owns firearms, expresses contempt for some demographic, and uses a lot of profanity has NOT interfered with another person’s life. Therefore, government has no legitimate reason to show up and confiscate his property, no matter how intensely you believe that he is a threat.

  18. It likely is the result of my being simply hard headed but seems to me that the onus must being those who would remove, with no proof whatever, the most basic rights of citizens. In other, simpler, more direct wording, the burden of proof must lay on the shoulders of the accuser. No other arrangement is remotely acceptable.

  19. Technically, there are people who shouldn’t be allowed to possess a pointy stick. The problem with saying that those people can’t have a pointy stick is that it’s pretty easy to end up on the list of people that other people think shouldn’t be allowed to have a pointy stick.

  20. TTAG put out an article a while back asking if we ever debate guns with others. I’ve debated guns with liberals and have converted a couple when they actually took me up on my challenge to take them to the range. They figured out they were being lied to quickly. Others, put their fingers in their ears and scream, “Laalalalalalala! I can’t hear you!!!”

    One of the counterarguments I’ve received many times from the ones who refuse to be educated is this: “Well, just by talking to you I can tell you’re not mentally stable enough to own a gun.” This is after I’ve very calmly tried to explain the facts they don’t want to hear. What they consider to be an unstable person is EXTREMELY subjective. I’ve received the same old tired argument from them that you should pass a mental evaluation to own a firearm. If it’s up them, we’ll all be labeled: “Crazy” because you must be crazy to want to own a firearm.

  21. “Your Honor, I’d like my guns back that the sheriff took from my house.”

    “Son, you can have your weapons if you can prove that you aren’t dangerous.”

    “Well, Your Honor, I’m not telling where the REST of my guns are.”

    “But, you’re dangerous.”

    “Maybe. But I’m also dangerous without my guns. Want to try me?”


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