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A New York court has affirmed that due process rights must be taken into consideration when enforcing so-called “red flag” laws and vacated New York’s Gov. Kathy Hochul’s executive order for enforcing Extreme Risk Protection Orders (ERPOs) or “red flag” orders. That is consistent with what NSSF has said from the beginning about ERPOs.

If an individual is going to be deprived of fundamental constitutional rights, they must be afforded the opportunity to examine and challenge evidence brought against them – they must be afforded due process of law.

In New York’s case, the court requires that any “red flag” order must be accompanied by a determination from a physician or psychiatrist. That’s already part of New York’s laws.

The court noted that New York’s Mental Hygiene law that states, “… a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition ‘likely to result in serious harm.’ Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such an opinion must be consistent with the first doctor’s opinion.”

Doctor’s Opinion

This is a critical distinction to how Gov. Hochul wanted New York’s “red flag” law to be administered. Her executive order allowed for a police officer, district attorney, family or household member, school administrator or a school administrator’s designee – which includes guidance counselors or school social workers – to petition for “red flag” orders.

There was no requirement that a licensed medical professional to opine on the mental state of the individual in question. Her executive order required state police to file “red flag” orders on individuals “… when there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others…”

Kathy Hochul
New York Governor Kathy Hochul (AP Photo/Yuki Iwamura)

That left courts in the position of determining someone’s mental health state without medical evidence to make that determination.

The Court’s ruling now requires that the supporting documentation must include a doctor’s determination. What’s more, the Court recognized that Second Amendment rights are foundational individual liberties and the state must clear a high bar when taking action to deprive someone of those rights.

Not a Second-Class Right

“Second Amendment rights are no less fundamental than… Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection,” wrote Judge Craig Steven Brown.

That’s not just the U.S. Constitution that protects that right, but also existing New York’s Mental Hygiene Law. The court went further. It concluded that anyone subjected to a “red flag” order for more than 48 hours must have a second and concurring determination from another doctor.

NSSF has never opposed so-called “red flag” laws, so long as they provide procedural and substantive due process. Of the 19 states and the District of Columbia that have these laws on the books, none include sufficient or adequate due process protections. A New York Supreme Court has now held that they must be included.

A High Bar

The firearm industry wants to keep firearms out of the hands of those who cannot be trusted to responsibly possess them. That includes prohibited individuals, those suffering through a mental health crisis or suffering suicidal ideations and unsupervised children. “Red flag” laws have utility in protecting the public, but must be carefully administered so these orders aren’t abused to disarm lawful gun owners.

national gun control confiscation
(AP Photo/Lynne Sladky)

The bar must be higher than mere accusations that someone is likely to harm themselves or others. ERPOs that would deprive a citizen of their constitutional rights must provide meaningful due process protections including allowing an individual to examine and rebut any evidence presented to a court for consideration.

For that reason, NSSF has significant concerns with ex parte orders, which are issued without notice to the individual who is the subject of the order. And, on the truly rare occasion when there are exigent circumstances to justify an ex parte order, due process requires a very prompt post-deprivation hearing.

The New York judge got it right with this decision. We should be providing all the tools necessary for law enforcement to protect the public against criminals and mentally-deranged individuals that have no respect for life or law. Those protections, though, should never come at the cost to our foundational freedoms – including due process and Second Amendment rights.

 

Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.

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29 COMMENTS

      • DEBBIE, I ONCE WORKED WITH A GUY THAT TYPED EVERYTHING IN CAPS. HE DID SO BECAUSE HE COULDN’T SPELL FOR SHIT. SPELL CHECK WOULDN’T KICK IN IF EVERYTHING WAS IN CAPS. HE COULDN’T EVEN PICK OUT THE CORRECT SPELLING ON SPELL CHECK. MAYBE N TEXAS HAS ISSUES ALSO. MY 93 YEAR OLD MOTHER (94 the 28th) WOULD SAY “BLESS HIS HEART.” In the south that’s not a term of endearment. It’s a term of polite pity for those that don’t understand etiquette.

        • Perhaps N Texas has a vision problem, but surely he would have so stated that as a fact considering all the comments submitted relative to his use of CAPS.

    • Hello NTexas! I used to get mildly irritated by comments entered in all caps, but I got over it. Please keep doing it however you like. Thanks for your comments regardless of appearance; it’s the content that matters.

  1. If someone is truly a risk to his/her/its safety, or that of others, the only viable option is to put a hold on that person, not guns. Such holds require that the person’s rights are not abused nor violated, nor can actions be arbitrary.

    There are literally millions of ways for a dedicated human to do others great bodily harm without a firearm, as is proven every day across this country and around the world.

    The problem with dealing with the actual human rather than his/her/its property, at least in the US is that whereas property does not have rights, humans do.

    • There were many knowledgeable people that opposed the property confiscation law that was enacted to confiscate the property of drug sellers. The educated people said that the road to hell is paved with good intentions and that before you know it, the governmental entities would be taking property for almost any excuse. Seems they were correct.

      • “There were many knowledgeable people that opposed the property confiscation law…”

        It isn’t only for drug-related seizures, those statutes involve nearly any assets that some govt official can claim have been ill-gained or were used in perpetrating a criminal activity, regardless of how serious. Like the confiscation of a firearm or even boat/vehicle, should a game warden charge one for even a fairly minor infraction before ever reaching an adjudication, etc. Or what is now standard IRS procedure. Assumed guilty, not innocent, with the onus on the accused to prove innocence at one’s own expense, often against the accusation and testimony of only one, biased accuser. Even the Law of Moses demanded at least 2 or more.

  2. If only we had a nationwide firearms advocacy organization that had the reach and could raise the funds, and provide the unchallengable expertise, to educate law enforcement folk across the country in recognizing unconstitutional orders and using the power of the unions to protect LEOs who refuse to enforce the unconstitutional orders. Something like the National Gun Association or the National Firearms Association. An organization that has wide support and knows how to win at the grassroots level. If only….

    • It’s a noble thought, and cause. If NRA could get out from under the NY AG suit it could happen there, but make no mistake: NRA could toss WLP and Woody Phillips, et al, out of the sleigh and it would not improve things with the suit. With a small number of members, perhaps.

      It’ll be a long way back for NRA, but should it fail in this CF, GOA, SAF and the others will go away in weeks, not years.

      Gun people, for the most part, are pretty fickle and most are more concerned with themselves, and the present, rather than with the country and the future for their progeny.

      This is in no way or manner a swipe at POTG, it is just an assessment from a person who has been active in 2A activities for 50 years or so and has sought to organize and motivate groups of like-minded people. Until you have, you will not believe how difficult it is to get people to commit to anything that is not an easy, or sure bet. Even something as simple as the very preservation of all they claim to hold dear.

      We cannot imagine what our Founders put on the line back in 1776. Who among us today is willing to pledge our lives, our fortunes, and sacred honor? Who even knows what “sacred honor” is? Different times, and we’ve got it pretty soft, and good…

    • “If only we had a nationwide firearms advocacy organization…”

      And then:

      “The firearm industry wants to keep firearms out of the hands of those who cannot be trusted to responsibly possess them. That includes prohibited individuals, those suffering through a mental health crisis or suffering suicidal ideations and unsupervised children. ‘Red flag’ laws have utility in protecting the public…”

      Excuse me, but it was the intention of the Founding Fathers that the Second Amendment itself “…have utility in protecting the public…” FROM THE GOVERNMENT and perhaps from the NSSF.

      It is a little disconcerting when even an organization with the status of the NSSF has legal representatives who cannot write an editorial about Red Flag Laws and the Second Amendment without including the obligatory “BUT…” or “except…” in the 2A that DOES NOT EXIST (Shouting in CAPS intentional).

      The Second Amendment as proposed, ratified and enshrined in the Bill of Rights does not say:

      A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bears arms, shall not be infringed, [except when the firearm industry or the government wants to keep firearms out of the hands of those they decide cannot be trusted to responsibly possess them, including “prohibited individuals”, those suffering through a mental health crisis or suffering suicidal ideations, or unsupervised children].

      There is a very good and substantial reason why the 2A does not recognize ANY authority of the government (or the NSSF) to decide who may or may not exercise their Second Amendment protected right to keep and bear arms.

      Given the political philosophy that seems to have hijacked the Democratic party today, why in the HELL would we for an instant trust them to decide who “cannot be trusted to responsibly possess [firearms]”, who is a “prohibited individual’, who is ‘suffering through a mental health crisis or suicidal ideation” that makes them a danger to themselves OR OTHERS”? There may be some argument to be made about ‘unsupervised children”, but I am loath to allow the government to decide that issue since there are cases on record of children being taken from their parents who allowed them to visit a local playground “unsupervised”.

      Meanwhile, the Dems want you to believe that all Trump supporters, ultra MAGAs, are domestic terrorists, as are parents complaining about grooming and CRT at school board meetings.

      The solution to the fear that someone might abuse their natural right to arms is NOT to suppress my Second Amendment protected right to arms, it is to promote the ability of more law abiding citizens to exercise their right to bear arms in defense of themselves and their community.

      This is so fundamental to the core concept of the Second Amendment that I am amazed at how often (too often) people who should understand it want to dance around the issue and promote that little chink in the absolute “…shall not be infringed….” portion of the amendment.

      • To Cliff H:

        Your point is well-taken.

        You must remember, however, that NSSF exists primarily, if not solely, to represent the industry, not the citizens who may choose to be consumers of it. I’d not expect much NSSF support for Americans manufacturing their own firearms, or even reloading/making their own ammunition, either.

        While I see the value of NSSF when they operate in lockstep with 2A groups who do claim to represent The People, those are not the ones NSSF is in existence to represent.

        Good points.

        • The wishy-washy firearms industry and the other Fudds in our 2A ranks that are so quick with that “but” after they claim to support the 2A are our worst enemies.

          Give them an inch and the horse-trading barstidz will let give away the keys to the kingdom while the antis take a mile or at least move the goalposts for the next horse-trade.

    • What hope there is will be inevitably extinguished by the back-stabbing Fudds from the NSSF and the NRA

  3. Gun control never works.

    The Fudds at NSSF are no better than Moms Demand, Brady, or George Soros himself.

    “We support the 2nd Amendment -but….” the very definition of Fudd.

  4. “A New York court…”.

    A trial-level court, it would seem. Appeals to follow.

    “NSSF has never opposed so-called “red flag” laws, so long as they provide procedural and substantive due process.”

    And, there’s the tale itself.

    “Red flag” laws are not about mental health, but about taking guns from lawful owners. Once the guns are confiscated, there is no simple, rational mechanism for return of those firearms.

    A former US President once said, “Take the guns first; due process, second.” Wonder why he is not a fortunate son of New York?

    • The NSSF has repeatedly shown themselves as 2A horse-traders willing to bargain away our rights to help them make a bigger profit from their products. They don’t care about our rights -only their sales numbers. That’s why they love red-flag confiscations. It sells more guns. Larry Keene is just another Bill Ruger and Smith & Wesson leadership selling out with their Hillary-holes and LEO-only mags.

      I wouldn’t trust that traitor amy further than I could throw his precious red-flag laws and his fake legislative “report cards” that gave A-grades to Mitch McConnell and John Cornyn and the rest of the traitors who passed last year’s bi-partisan gun-control bill through Congress last.

      This website is supposedly “The Truth About Guns” but that is a lie when they give this dude the podium to peddle his anti-gun redflag civilian confiscations BS.

      • “This website is supposedly “The Truth About Guns” but that is a lie when they give this dude the podium to peddle his anti-gun redflag civilian confiscations BS.”

        If you are looking for an echo chamber, there are better blogs.

        • “There are better blogs” -that’s pretty self-evident.

          But by giving Fudds like Larry “redflag” Keane an editorial voice they are eroding their brand even more than usual.

          The NSSF is a cancer to the gun community that has infected and sickened most of the big “Guntubers” because of their advertising sponsorships. Just about any of them with subscription numbers even approaching 100k are fuddly as hell too, like that AK-guru Brandon Herrera toadying to the likes of the Black Rifle company’s Haffer and Eye-patch McCain lately. You can tell the tree by its fruit…

          I guess in the end making a bunch of money totally trumps “Shall Not Be Infringed.”

    • “…Once the guns are confiscated, there is no simple, rational mechanism for return of those firearms.”

      Nor really any provision for the “accused” to clear his/her/its “good name”, nor to punish anyone, private citizen or govt representative, for making false accusations.

      • And what good really hss been done by simply removing someone’s guns if they are truly a risk to society? Guns can easily purchased illegally on the street or simply stolen from legal gun-owners. Dangerous people who are capable of mass murder aren’t stopped by laws against illegal purchases or breaking and entering with intent to burgle.

        Redflag laws only take weapons from folks who are law-abiding enough not to go get more illegally. they remove from these people the option for self-defense, and if a person was not quite over the edge at the point their guns were stolen they may have been pushed over the edge since now they may feel they have nothing left to lose. Even good people can only be pushed around so much before they begin to fight back however they can.

        Larry Keane and the NSSF are way off base and hurting the 2A with this Redflag crap. it’s high time we pushed back ourselves against these Fudds and showed them how Patriots deal with 2A traitors who push an anti-2A agenda like they have been doing.

  5. Since roughly half the people in the US think gun owners are a danger to themselves and others, getting an unbiased doctor seems chancy. In Illinois once the Illinois State Police take your guns it will be years before you get them back if you have the resources and patience.

  6. I admit it surprised the hell out of me when this first hit the wire, and in New York no less.
    This is the exact argument I used at a Townhall meeting prior to Commierado’s ERPO Laws being signed into Law by then Governor Lickshispooper.
    Coming from a Lay Person our State Rep just rolled her eyes.

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