Why ‘Red Flag’ Confiscation Orders Are So Dangerous for Gun Rights

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By Dr. John Edeen

“Red flag” laws are currently in effect in 15 states and the District of Columbia. Hawaii’s and Nevada’s red flag laws will take effect on January 1, 2020. These laws allow courts to issue orders to temporarily confiscate the firearms of individuals deemed to be a risk to themselves or others. Individual states differ as to who can request this.

In most states, family members and/or law enforcement can request the order from a state court judge to confiscate the firearms of the person who they believe to be at risk. The exact details vary from state to state. The hearing is ex parte, which means that the at-risk individual has no notice, no representation and no opportunity to rebut the claims of those who would have his firearms taken. In most cases, the only warning is the knock on the door when law enforcement comes to take his property.

The subject of the red flag order gets his day in court at some later date to plead his case. If the order becomes final, it can last for six months to a year before needing to be renewed. In New Jersey it is indefinite until the subject can convince a judge that he is no longer a danger.

Many Constitutional protections are turned upside down or violated by these laws. The most obvious are, of course:

— the Second Amendment: “[T]he right of the people to keep and bear arms shall not be infringed.”

— the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched , and the persons or things to be seized.”

— the Fifth Amendment: “Nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use , without just compensation.”

— the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due processes of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Your accuser has no obligation to prove your guilt. The order to deprive you of your Constitutional rights is given using completely unsubstantiated, arbitrary terms. You then have to stand before your government to prove your innocence.

These laws also have a chilling effect on the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, . . or the right of the people to peaceably assemble.” What you say on social media (e.g., “I support the Second Amendment”) or which organizations you belong to (e.g., National Rifle Association, Second Amendment Foundation) in San Francisco can label you a terrorist and subject you to being red flagged and have your property confiscated. What crime did you commit? The exercise of Constitutionally protected rights.

Since these proceedings fall under civil rather than criminal law, your Sixth Amendment protections are bypassed. These include “the right to a public and speedy trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

The Seventh Amendment states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court in the United States, than according to the rules of common law.”  However, the civil proceeding against the individual by the state is regarding property worth far more than that $20 civil threshold. Why do firearm confiscations not permit trial by jury? A judge holds your rights in his sole hands.

The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Is not having your property seized without trial or due process cruel and unusual? Is it not essentially an excessive fine to have to pay an attorney $10,000-20,000 to get your property back even though you committed no crime?

These laws turn “innocent until proven guilty” on its head. They allow unreasonable search and seizure, and void due process. They deny trial by jury and punish innocent persons before they are found guilty of a crime. The punishment (confiscation of property) happens without any criminal conviction or an adjudication of mental incompetence. The ex parte nature of the original hearing only presents one side of the argument. Is there a police investigation to confirm the claims of the person asking for the order prior to accepting the petition? Many red flag laws hold the complainant harmless from civil damages even when the claims are false. In some states the rules of evidence are waived.

These laws bypass important existing processes. They take away the firearms but do not address any other potential self-destructive or criminal behavior of the person subject to the ERPO.

There are civil commitment processes in place in every state for people to be evaluated by a mental health professional for a limited period of time. During the confinement, a psychiatric evaluation can be done in order to ascertain if they are truly a danger by reason of a mental illness. They can then be adjudicated as being a danger or not, with all due process. This has the added benefit of getting help for those who need it, while separating the person from all dangerous weapons.

If there is criminal intent, the person can be arrested and be charged with a crime. They can then be tried with all their Constitutional protections in place.  In any event, due process is preserved.

Let’s look at the practicalities of the ERPO system. What judge is going to deny a petition claiming danger? The only risk they have is if deny it and then the person does something dangerous. Most judges are elected and seek re-election.

On the other hand, the accused now must shoulder a significant financial burden to prove his innocence. He would have to pay for his own mental health evaluation to try to to recover his property, rights and reputation? Let us not forget that many in the mental health professions are biased against firearms and the Second Amendment. It may be difficult to find someone to give a fair reckoning on your behalf. How do you prove a negative?  Our judicial system should put the burden of proof on the state here too, not on the accused.

red flag laws can be used against women defending themselves against domestic abusers. They can be used in divorce and child custody litigation as leverage against their partners. They can discourage those who might need mental health treatment for depression or suicidal ideation from seeking help for fear of triggering a red flag report.

Who is responsible for preserving your property for the duration of an order? Police departments have been known to damage or destroy seized firearms. You might never get your property back.  You will not be compensated for its value, and to add insult to injury you may be charged a storage fee too!

red flag laws deprive you of you Right to Keep and Bear Arms. They subject you to unreasonable search and seizure. They deprive you of due process of law and deprive you of your property without just compensation.  They contravene your rights to a speedy and public trial, an impartial jury of your peers and to confront your accusers, without even accusing you of a crime . You cannot call witnesses on your behalf or have counsel represent you until after your property and rights have already been violated.

It is cruel and unusual punishment to be forced to prove your innocence, costing tens of thousands of dollars to prove a negative. Of course, this abridges the privileges and immunities of the citizens it is used against. These laws have already deprived people of their life, liberty and property. In jurisdictions that abuse the rights of citizens, will we see Federal prosecutors charge those who violate citizens’ rights in these ways under 18 USC 241 (Conspiracy against rights) or 18 USC 242 (Deprivation of Rights Under Color of Law). We are still waiting.

As an alternative, a writer named Ian Williamson has proposed a “Purple Flag Law”. When an accusation is made, instead of confiscating the person’s guns, the person is escorted to a facility where his state of mind can be evaluated. This addresses the critical concern, separating the person from the guns. If a person is dangerous, he doesn’t need guns to hurt or kill a lot of people. It keeps the firearms out of the hands of the state, since experience has proven that once they have been taken you are unlikely to get them back in good condition, if at all. And the person, unlike the guns, has the right of habeas corpus.

Second, if the accusation that leads to the evaluation turns out to be unfounded, the accuser gets a mandatory one year in prison, and is named in a mandatory civil lawsuit demanding $1 million in damages. That will deter bitter ex-spouses, disgruntled employees, spiteful neighbors or anyone else with an ax to grind from initiating a red flag petition as a form of harassment.

Finally, when an accusation is well-founded and a person turns out to be too dangerous to release, this framework has the crucial advantage of focusing attention where it belongs — on the person, not on the gun.

It is obvious to me that those who create red flag Laws are not really interested in public safety. They only want another means to confiscate firearms and to create more prohibited persons.

 

References:

  1. Constitution of the United States of America
  2. KrisAnn Hall, JD, You Tube video, The Truly Insidious Nature of Red Flag Laws
  3. Tea Party Action Patriots. Say NO to “Red Flag” laws.
  4. CBS News. What are “red flag” laws, and which states have implemented them? August 9, 2019.
  5. DRGO on Firearm Confiscation due to dangerousness, March 13,2018, drgo.us 

Dr. John Edeen is a pediatric orthopedic surgeon in San Antonio, TX and is active in seeking the right to carry for qualified hospital staff. He is DRGO’s Membership Director.

 

This article originally appeared at drgo.us and is reprinted here with permission. 

comments

  1. avatar Sam I Am says:

    As Perry Mason (or Hamilton Burger) would declare, “Irrelevant, incompetent and immaterial !!” Courts are part of government. Any questions?

    (besides, the RTKBA is not a “substantive right”; see federal court decisions)

    1. avatar Thixotropic says:

      What the hell are you smokin’?

      1. avatar Sam I Am says:

        Courts are part of government. Any other questions?

    2. avatar Timothy Toroian says:

      Sam I Am, give me a specific of court decision not calling RTKBA not a substantive right? I’ve been studying the SCOTUS gun cases and in Roe v.Wade in the Supreme Court Gun Cases, As part of the analysis arguing that the right to abortion was part of the “liberty” protected by the Fourteenth Amendment, Justice Stewart quoted Justice Harlan’s dissenting opinion in Poe v. Ullman which had listed the right to keep and bear arms as among the liberties guaranteed by the Fourteenth Amendment:… If not considered a substantive right why would it be used as an example of something important enough to equate with establishing something else as a right, something as societal altering as eliminating laws prohibiting abortion? That’s on page 106.

      1. avatar Sam I Am says:

        Good question/request. Was reading just recently that a lower court had made the determination is arriving at the “balancing” test regarding burden on constitutionally guaranteed rights.

        In Printz v. US (1997), the court opinion noted that since the plaintiff did not raise the specific issue of “substantive right” vis-a-vis the Second Amendment, the court would make no note of that consideration.

        Overall, the idea that the Second is not a “substantive” (or some important) right is embedded in virtually every case where balancing tests, or “intermediate scrutiny” (which has no basis in the constitution), are/is applied. relegates the Second to a status below other Amendments. This means burdening the Second without limiting the burden to a “narrowly tailored” government regulation that achieves the government’s goal is permissible and preferred. When a law or policy is not required to be the “least restrictive means” for achieving government interest, it is de facto a demotion of a constitutional right to less than substantive. Even the three-tiered scrutiny test is a court-generated concept, tied inseparably from the court-generated concept of “compelling government interest”.

        To understand that the courts consider the Second to not be substantive, one need only look at the granddaddy of them all: Roe. In Roe, the SC found an implicit (not enumerated) right to abortion. Since, the right to abortion has become almost (can’t think of a situation where there is an exception) an absolute right. The Second Amendment, a specifically enumerated right, has a long history of permissible burdens that would not be tolerated under the jurisprudence of Roe.

        In the Heller and McDonald decisions, the SC declared RTKBA to be an individual right at federal and state level. The court did not also declare that the Second Amendment is, of a preexisting human right, to be reviewed under the most strict measure of review when government designs to burden the Second with laws and regulations. Hence, the lower courts do not propose to establish the most strict review as a matter of law. The only possible conclusion is that the courts see the Second as not substantive, and not equal to the FIrst, Fourth, Fifth, Thirteenth and Fourteenth Amendments.

  2. avatar Ranger Rick says:

    Regarding a “Red Flag” law issued in a State of your current residence and you physically move and take up residence in another State, is the previous order still binding in the State of new residence? And if you acquire a firearm in the new State of residency which State has jurisdiction?

    1. avatar Sam I Am says:

      “Regarding a “Red Flag” law issued in a State of your current residence and you physically move and take up residence in another State.”

      Easy to address: if necessary TRO/EPRO orders can contain prohibition against fleeing the jurisdiction. At that point, the person fleeing commits a crime in the original jurisdiction, and other states are obligated to extradite back to the original state.

      1. avatar GS650G says:

        So you didnt commit a crime before they took your guns and now commit a crime when you leave. You’d think they would be happy you left if they were so afraid in the first place.
        Once again, it’s about control.

        1. avatar Sam I Am says:

          “You’d think they would be happy you left if they were so afraid in the first place.”

          Think of it as a “two-fer”: the target of the RFL left the building, so people are “safe”; next, the person who was only a “suspect” can now be convicted of a crime, and never be legally eligible to own firearms again, ever (saves a trial to convince the judges to lift the TRO/EPRO). Win-win.

          When contemplating how devious government can be, remember that last year the Californication Supreme Court declared that a law is not invalid (and people are subject to it) just because it is physically impossible to comply with that law. (sorta the companion to the SC ruling that actual proven innocence is not grounds for releasing someone from prison)

    2. avatar Chief Censor says:

      When you receive a confiscation order you must turn in your property or face prosecution for failure to relinquish your firearms, magazines and ammo. Unless the order allows you to transfer the prohibited items to a family member whom will not allow you any access to those items until the order is over and the legal process has been completed. Once you have been declared unfit to exercise your human rights you have — according to the state — become a prohibited person. In the same vain as a felon, thus you cannot have access to a firearm. You will be prosecuted like a felon would be if you have access to a firearm. You are placed into the NICS system as a prohibited person. You also lose your CCW, which I assume will invalidate all other states’ reciprocity licenses that’s given to your state’s permission slip.

      Welcome to the new America: Human rights are not acknowledged or protected by any politician.

      1. avatar David Bradford says:

        “When you receive a confiscation order you must turn in your property or face prosecution for failure to relinquish your firearms, magazines and ammo. Unless the order allows you to transfer the prohibited items to a family member whom will not allow you any access to those items until the order is over and the legal process has been completed. ”

        Solution: Put all your guns, accessories and ammo in a Gun Trust. Catalog and photograph each and every piece and give a copy to all the beneficiaries of the Trust. The items then belong to the Trust and its beneficiaries and not you personally. They may be able to remove the items from you individually but not from the other beneficiaries of the Trust and so must surrender them to their rightful un-prohibited owners.
        I have a gun trust for my NFA property. If/when Michigan passes an ERPO law, ALL my guns, ammo and accessories, and those of my brother will be added to the trust. The items will then belong to the Trust and ALL the beneficiaries of the Trust. They may be able to keep the guns away from me, but there will be legal hell to pay if they damage or loose the property belonging to the Trust.

      2. avatar larryarnold says:

        In most of the “Red Flag” laws I’ve read you won’t get either a “confiscation order” or an opportunity to “turn in your property.” The police will show up, and since they think they’re dealing with a “crazy person with guns” they won’t send Officer Friendly.
        Red Flag laws are a way to SWAT someone without consequences.

  3. avatar Chapo Guapo says:

    No one will ever take my guns. I will need to be killed before that happens. As someone who was abused and bullied for a significant part my life I know personally from experience what happens when you can’t defend yourself. There is a certain portion of the population that does not have morals. The only thing that keeps them from doing harm to others are consequences from breaking the law, or fear of retaliation. As they continue to push their propaganda, I’ll continue to repeat this message. I will never again live defenseless. Never again.

    1. avatar J says:

      Your determination is excellent. You should organize a local militia with your friends so you can escape a confiscation order with both your life and your guns. If you can organize 50+ armed friends who can come to your aid, the police will be forced to leave if you can hold them off until your friends get there.

    2. avatar Chapo Guapo says:

      I’ll be honest about what I’m going to do and how I see things going down. Schools, churches, etc are going to continue to be shot up; and little innocent kids are going to continue to die until there’s enough public support for gun confiscation. I believe the economy is about to blow up good and hard, worse than the Great Depression. Those desperate times are perfect for people like hitler, stalin, mao to take power. However these despots can’t do anything as long as the people are armed. I know they’re after all guns not just “assault rifles” because “assault rifles” are used in a very small percentage of incidents. If they really cared about peoples’ lives they would be trying to ban handguns. However too many people own them. By comparison not many own “assault rifles”; and there’s enough trust to believe red flag laws will not be abused. They need to get people acclimated to the government taking guns. So after taking the scary “assault rifles” and enacting red flag laws doesn’t work, they’ll go after high capacity magazines then semi auto firearms then continue until stalin jr is free to work.

      I don’t have kids and probably never will. Therefore, my interest is preserving my life, freedom, standard of living, and comfort until the end of my natural life. Part of that includes trying to hold off the confiscation at least until then. If confiscation happens while I’m alive, I’ll continue to be part of the government when stalin jr takes power in order to preserve my interests. In the spirit of charity, let’s try to stop the fire before it spreads further so it doesn’t get to that point.

    3. avatar frank speak says:

      ….then they’ll kill you…in fact they already have….be interesting to see the reaction when a law enforcement officer is killed or injured while trying to enforce one of these orders…

  4. avatar uncommon_sense says:

    For anyone who does not yet see it, it should be coming into sharp focus as this point that nearly all Democrats and even many Republicans have absolutely ZERO interest in affording Constitutional and Common Law protections to “deplorables”.

    People who declare you a deplorable (often because you do not share the same values) are now advocating that you be neutralized. We are thus at a precipice in our nation. Do we codify neutralizing people who wish no harm on anyone and have different views?

    1. avatar Gordon in MO says:

      Quote: “Do we codify neutralizing people who wish no harm on anyone and have different views?”

      It is but one more step in the progress to a democratic socialist (communist) utopia…..where peasants have no rights. It is what “progressives” do, progress one small step at a time to reach their communist goal.

    2. avatar Geoff "I'm getting too old for this shit" PR says:

      “Do we codify neutralizing people who wish no harm on anyone and have different views?”

      Do they realize where that will lead? Not might, or may, but actually lead?

      Do they not realize the drastic consequences of declaring 50 percent of America less than human?

      1. avatar uncommon_sense says:

        Do they not realize the drastic consequences of declaring 50 percent of America less than human?

        I don’t think they do. And even if they did, I don’t think they would care. They simply want what they want.

        This is where society breaks down without any timeless, overarching, and unchangeable standards.

  5. avatar Greg says:

    You can add the 9th Amendment to that as well. The 9th was written inverse for a reason. In order for us to “Retain all Rights not Addressed in the Constitution,” the Rights that are addressed must be absolute. Otherwise the 9th would make no sense.

  6. avatar Widdler says:

    Perfect timing, we just went through this. Forced to relinquish firearms until a licensed PHD, PSY signs a waver of approval. What they didn’t say was all state or government funded medical/mental health facilities are under obligation not to sign it. You have to find a private practice, and here in hawaii….good luck. Took 5 months to find a guy cause of course no doc can recommend one, even though the incident was a DUI that happened 12yrs ago. Which was already settled in court and treatment programs in 2008, permits are finally being processed now. Should be another week before getting back property that was legally purchased over the past decade

    1. avatar GS650G says:

      Move off that liberal island.

      1. avatar Widdler says:

        Definitely in the plan, but like others said once your name starts blinking it’ll always be blinking no matter where you go. Need to get it settled or you’ll never purchase another tool again, Legally that is.

  7. avatar GS650G says:

    It’s all fun and games until one of their own gets red flagged. Wait until a prominent liberal goes into divorce proceedings and the wife goes and gets a gvpo and tro for leverage.

  8. avatar RCC says:

    A large number of police officers in my state have domestic violence orders against them but are allowed to carry on duty and sometimes keep personal firearms. The rest of us if that happened with ex wife or other reasons have to get rid of their guns.

    Not a fan of any law that says take guns on suspicion but definitely not a fan of one law for government employees and too bad for the rest of us.

  9. 1.) IT’S ALL about “Authoritarianism!”

    2.) “RED FLAG/Extreme Risk Protection Orders”, are obviously designed to “Divide and Conquer…” (Re: Like Who the hell is going to HELP an individual…)

    3.) “RED FLAG/Extreme Risk Protection Orders,” are designed to make individuals into “Enemies Of The State…(re: By using new Bill of Rights bending legal trickery to squelch a persons freedoms and liberties through arbitrary and capricious means…To silence political activism, to prevent rebellion, to attack a group in an individual level…Leaving them vulnerable…And of course, allow personal detractors the ability Target someone for serial harrassment…Including police, or politicians with a political ,or personal axe to grind…)

    4.) Purple FLAGs !!!? WTF…A Goverment sponsored Abduction van!!!? Grabbing citizens off the street!?!? WTF !?? Why give @$$wholes more twisted ideas…How about a return to proper checks and balances…And those architects responsible for these Treasonous Social Engineering projects vet held accountable and crucified in the public!

    1. avatar CplCamelToe says:

      RE: #4 – Purple Flag Laws

      What you seem to be missing is that the described “Purple Flag” is exactly what we have for law enforcement today- and the way our justice system is designed.

      Red Flag laws dole out the punishment (confiscation of property) before you’ve had a chance to defend yourself.

      The described Purple Flag plays out like any accusation of a crime: someone makes an accusation that you did something (domestic violence or whatever), and the police come and see you. If they find probable cause, they arrest you and take you before a judge. If, through due-process, you’re found guilty, then the punishment begins. If you’re not found guilty, then you go about you way.

  10. avatar Merle 0 says:

    When in the course of human events….

    1. avatar Green Mtn. Boy says:

      The reset clause.

  11. avatar Grumpster says:

    Here is who can file a red flag law in my state:

    Section 5. Definitions. As used in this Act:
    “Family member of the respondent” means a spouse, parent,
    child, or step-child of the respondent, any other person
    related by blood or present marriage to the respondent, or a
    person who shares a common dwelling with the respondent.

    That sure is a heck lot of people. I have a fair amount of in laws who just hate me because of my political beliefs and others who get angry because I won’t “loan” them money. What better way to intimidate or coerce some one by threatening to red flag them. ANYONE living in the same dwelling can also red flag one. Trying to kick out a deadbeat friend or acquaintance? Good luck if they find out about this. Heck I know someone who was kicked out of their own home because his son’s girlfriend didn’t like him and she filed a report with police and being that she had a few months old baby, he did not stand a chance.

    Yeah there is certainly a whole lot of potential for abuse, especially if one lives in a progressive area with a lot of gun hating judges who will end up ruling in a way to protect themselves first above all.

  12. avatar Fear itself says:

    “Let’s look at the practicalities of the ERPO system. What judge is going to deny a petition claiming danger?“

    No, let’s look at the actual cases, they should be a matter of record. I want to know the actual numbers, the facts. Emotional, fear based reasoning is a hallmark of the left.

    1. avatar frank speak says:

      you always think this can’t happen to you….until it does….

  13. avatar George Washington says:

    Fk a bunch of communist [email protected] destroying what my ancestors built for ME….
    I WILL NOT COMPLY…… GOT IT YOU FILTHY MOUTH BREATHING COMMIE?????

    MOLON LABE MFKR

    1. avatar Jabberwockey says:

      Retard.

  14. avatar armita says:

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  15. avatar Bruce Clark says:

    Virtually everyone of you commenting in this very public forum are at risk of Red Flag laws. Just be cool, go underground so to speak with regards to your public comments. Jeez, anyone with half a brain knows this is 1984 in 2019. Does it occur to any of you Einstein’s how easy it is to LEO’s and anyone at a federal level to not only monitor this sight and others like it? Or how easy it is to trace where and from whomever made them? Be cool, you don’t need to sound off in this forum, worry about your rights, yes, just not here. I guarantee the colonialists before the revolutionary war didn’t get up on their soapbox’s like you clowns do here!

    1. avatar Sam I Am says:

      “Be cool, you don’t need to sound off in this forum,…”

      Yes. Public silence is the great emancipator, the great equalizer, the terrible swift sword of cultural change.

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