Thursday, August 8, 2019

"Red Flag" laws: between a rock and a hard place


I think the growing outcry to pass a national "Red Flag Law", allowing authorities to temporarily confiscate the firearms of those suspected of intending to use them illegally, is fraught with peril.  It's a "damned if you do, damned if you don't" situation.

Those who are Constitutional strict constructionists (including yours truly) argue that such laws ignore due process, and frequently convict someone of being a risk to society before they have an opportunity to respond.  Others, who regard the Constitution as more of a "living document" (and therefore malleable), maintain that the safety of society is more important than strict legal niceties, and therefore a temporary infringement on an individual's rights is preferable to the danger of "gun violence" (a meaningless term;  violence is violence, whether a gun is used or not - but it makes for a useful TV sound bite, so they use it).

The trouble is, I can see both sides here.  Neither side is entirely right, and neither is entirely wrong.

I certainly agree that an individual's rights, as guaranteed by the Fourth Amendment, are, indeed, fundamental to what it means to be an American.  Any organ of government violating those rights risks undermining, if not overturning, the entire Constitution, which is "an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity, and commonly determine how that entity is to be governed".  If those fundamental principles are ignored, the polity (our nation) no longer has a firm legal basis.  It's as important as that.

Any attempt to take away rights guaranteed to the citizen is therefore, at its root, inimical to the basic principles of our Republic.  However, the fact remains that our Founding Fathers recognized that it might be necessary to do so, for the good of the people.  That's why they included in the Constitution a means to do so, if it became necessary.  If they'd been absolutists, dead set against ever allowing that, they would not have included such a means.  That's basic logic.  Instead, they hedged around that necessity with significant and serious qualifications, designed to prevent rights being taken away except in truly justifiable circumstances.

Sadly, in recent decades the means they provided in the Fourth Amendment - "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" - have increasingly been honored in the breach as much as in the observance.  For example:
  • Blank warrants have been signed by judges who are too close to law enforcement agencies, departments and individuals.  Some have been issued verbally, even over the phone, without sufficient evidence that they are, in fact, justified and necessary.  (See here for one recent example.)
  • Police have misled judges by supplying incomplete or false information to obtain a warrant.  (Example here.)
  • Informants have conveyed false information, for reward or to avoid punishment, that has been used to obtain warrants - in some cases, leading to the deaths of innocent people.  (Example here.)
  • Many warrants have been later overturned in court for being unacceptably broad or vague, allowing investigating officers to get away with confiscating anything or arresting anyone, rather than sufficiently precise to identify exactly who or what was subject to the warrant.  (Example here.)

Therefore, the Fourth Amendment has already been undermined to a great extent.  It's no longer the "gold standard" against which law enforcement conduct is universally measured.

That easing of enforcement of Fourth Amendment standards contributes to why a Red Flag Law is so tricky.  Like a search or arrest warrant, it'll rely on the honesty and good faith of those laying the complaint or charge.  If they aren't honest, or aren't acting in good faith, what immediate recourse does the victim have?  We've all heard of cases where one or both individuals in a divorce case allege that the other party has threatened them, or is violent towards them, and request (a) protective order(s).  It's often no more than a legal tactic, designed to make their case look stronger in court.  I've had to deal with several such situations as a pastor, and they're poisonous, to put it mildly.  Nevertheless, they happen . . . and there's nothing to stop them happening under Red Flag laws, too.  A false or malicious complaint still results in the victim losing his or her firearms, unless and/or until he/she can persuade the court to return them.  If they should happen to need them in the interim, that's just too bad for them.

The element of malice is all too real in interactions with law enforcement.  I'm sure my readers are aware of what's known as "swatting" - making a false report to the police of violent or threatening behavior, so that a SWAT team is sent to arrest the alleged perpetrator.  An innocent man was killed that way not too long ago.  I'm certain that those with a grudge against someone will use Red Flag laws against them, possibly in conjunction with allegations of violent threats or behavior, in order to get their victims into as much trouble as possible.

The way to avoid such issues is to implement strict observance and (original) Fourth Amendment standards in the issuing of search and/or confiscation warrants, including under Red Flag laws.  However, we've already seen evidence that such strict observance is no longer always applied.  Sure, the victim of confiscation can establish that after the fact, and get his/her guns back, and seek restitution and/or recompense;  but in the meantime, he/she is S.O.L.  They have no immediate recourse.  Their constitutional rights will have been violated.  To strict constructionists, that's absolutely unacceptable - and I agree.

On the other hand, I can see the point of view of those who say that if there are clear warning signs, it's better to protect innocent life by confiscating weapons as a precaution, rather than allow a potential murder to happen.  However, the questions that raises are significant.
  • What are "clear warning signs"?  Who defines them?  Who says they're warning signs?  On what evidence?  On what authority?  Legally, it takes a medical professional to diagnose mental instability or disease.  Can the word of non-qualified observers be given equivalent weight in law?  What if family members report that someone is "mumbling to himself" while cleaning his gun?  That may be completely innocent behavior - no threat at all.  Can - should - a judge or magistrate act on such information?
  • Where and when do Red Flag laws apply?  If someone's sitting on the porch of their home, cradling a loaded firearm in their hands, threatening to shoot the next person who comes down the sidewalk, I don't think anyone would argue that's not a "clear warning sign"!  On the other hand, one doesn't need a Red Flag law to intervene in that situation.  Existing criminal law will suffice.  In what "gray area" would Red Flag laws intervene before criminal laws are broken?
  • What evidence of a potential threat would be considered a sufficient threshold to invoke the provisions of a Red Flag law?  The Fourth Amendment sets a high barrier.  Should Red Flag laws be written to that standard, or a looser one?
  • What about the rights of the gun-owner?  Are they to be negated because he may have ignorant or paranoid family members?
  • What's to stop criminals from using Red Flag laws against their intended victims?  If they persuade someone to complain that Joe Richman has sworn at them, and waved a gun in their direction, and they're in fear of their lives, the Red Flag law will be implemented, and Joe Richman will lose his guns.  While he's going to court to get them back, the criminals can target his home without fear of being shot, because he no longer has the tools to defend himself.  You think that won't happen?  If so, I have this bridge in Brooklyn, NYC to sell you.  Cash only, please, and in small bills.

This is where Constitutional rights, norms and protections run headlong into the very real threat to public safety posed by unstable individuals.  In an ideal world, the latter would not override the former;  but we don't live in an ideal world.  We live in a world where mass shootings appear to be getting more frequent, and people are more and more afraid of being caught up in one.  One can insist on legal and Constitutional rights all one likes;  but when the answer is to direct our attention to the broken, bleeding bodies in Gilroy, and El Paso, and Dayton . . . that's a very, very powerful argument to many (perhaps most) Americans.  Anyone who thinks it's not, doesn't understand the reality of the present situation.  As far as many of our fellow citizens are concerned, the bodies and the blood on the ground have trumped Constitutional theory.  Feelings have trumped legal principles.  We may believe that's wrong (and I do) . . . but it's also a reality we ignore at our peril.

There's another factor.  I believe firmly that the Second Amendment to the US constitution, guaranteeing the right to keep and bear arms, is sacrosanct.  Indeed, the Amendment does not convey that right - it recognizes a pre-existing right, which it merely codifies.  However, I guarantee you one thing.  If no Red Flag laws are passed on a national level, and soon, their absence will become yet another weapon in the arsenal of those who want to abolish the Second Amendment entirely.  That doesn't make it right, of course;  but it's nevertheless a real threat.

It's even more of a threat because Red Flag laws are often used to assuage the feelings of those who demand that government "do something" to keep them safe.  (The fact that no government measure can keep everybody safe, all the time, is neither here nor there.)  If those feelings are not assuaged, in today's climate, more and more Americans may become willing to sacrifice the Second Amendment on the altar of expediency.  I confidently predict that'll become an ever more constant theme in the publicity barrage from those opposed to private firearms ownership.

We have to admit that those who want a way to remove firearms from those who are potentially threatening to society, or mentally unstable, have a point.  Recent events make that terrifyingly clear.  However, there's the equal and opposite reality that each of us has rights, ratified in the Constitution, that are legally protected.  We weaken those protections at our peril.

Irresistible force, meet immovable object.  Feelings, meet facts.  Who's going to win?  Your guess is as good as mine . . . but right now, feelings are dominant in the public forum.

Peter

17 comments:

Unknown said...

Under what conditions is someone such an immediate threat that they need to have their guns taken away from them before a hearing, but not so dangerous that they need to get locked up for a psych evaluation (a 72 hour hold)?

if they really are that much of an immediate threat, won't angering them by taking away their guns (probably a pretty substantial investment) just cause them to retaliate against their accuser via other methods?

David Lang

Jesse in DC said...

So,the best approach is to arrest someones guns? Leaving the "threat" out free, walking around? Someone that might not be so stable, no way they could find something else to use as a weapon, right?
Letting an unelected judge decide what RIGHTS you can exercise is pretty much a non starter, especially as the laws in place now have been written.
There are laws in place already to disarm nutjobs when necessary (Baker Act) This clearly is a democrat wet dream if civilian disarment, under the color of the law.

Odysseus said...

A further consideration is that historically short term measures to assuage fears don't keep them assuaged. Particularly when they fail to work as seems the very likely case with red flag law and spree shootings. So you end up selling your birthright peace-meal. I don't see an easy solution to this quandary, and I fear that groping for one in the form of yet another law makes it easier for opponents of liberty to come back to the well to demand still more concessions.

McChuck said...

People are a threat to others, or they are not. Why should dangerous people be walking around free? Why should free people lose their rights?

Guns are tools. People are dangerous. Don't arrest the guns, arrest the man if he's such a problem.

Red flag laws are just another tool to disarm the lawful. When was the last time a protective order prevented a murder?

xmaddad1 said...

"Therefore, the Fourth Amendment has already been undermined to a great extent". That means that 'just because johnny jumped off the bridge then everyone else should also. Any violation of the fourth amendment should be prosecuted and the people violating it should be locked up no more 'conditional immunity'. Boys in blue, black robed judges, politicans, rich, should all be subject to the same laws and the same penalties. If this is not taken care of then the LAW IS DEAD and therefore none of us have any reason to abide by any of the laws that these imposters and traitors to their oaths pass.

Billll said...

Check Clayton Cramers blog for a preview of his latest book talking about mental illness and mass shootings. Mass killings weren't very common prior to the 80s when deinstitutionalization became a cause celebre.

Steve Sky said...

Red Flag laws defined:
The same people who flag your FB posts as offensive will now be calling the tip line to have your guns seized.

Understand our opposition now?

H/T link

JaimeInTexas said...

A "takings" by the government prior to a crime and conviction. At what point will the property be returned to the owner and/or compensated?

Anonymous said...

One thing that seems to be passed over in these preemption proposals is the nature and character of the rights-denying authority. Who shall have the right to say that my dirty-picture gallery or my chemistry set or my Curio&Relic collection are evidence that I'm a threat to anyone? And just what should be done about me?

One approach would be limit preemptive suppressions of right only to jury trials off specific named individuals, with the stipulation that a substantial minority of the jury be personally acquainted with the subject and with only the jury having authority to determine the subject's treatment.

Slow? Expensive? Yeah, if you want it to be...

NITZAKHON said...

But... but... but WE'VE GOT TO DO SOMETHING!!!!!!!!!!

In the wake of these shootings I've revisited an older essay of mine on gun control which looks at the mentality and psychological issues behind the desire for gun control. I hope it's relevant and useful.

http://redpilljew.blogspot.com/2018/06/gun-control-as-psycho-pathology.html

clark myers said...

I've joined in suggesting to a drunk that driving right now is a bad idea and I have guns in my safe that the family decided senile dementia was enough reason to remove from the household.

Sad isn't it that we can't trust the powers that be to get things even mostly right?

Sanders said...

All you have to do is look how the Lautenberg Amendment has been abused since it was instituted, and you'll know that Red Flag laws are a very bad idea.

One of the first things that happens in a nasty divorce is a restraining order requiring surrender or removal of firearms. It doesn't matter if the guy is violent or not, no judge wants to deny the restraining order.

FredLewers said...

I couldn't even read the whole blog post Peter. No red flag laws pass muster. The very nature of a red flag law violates the 2nd Amendment. Shall not be infringed... And the verse about submitting to the governing authorities, well Ceasar broke covenant with us before we were born. A covenant needs two parties to be a covenant. And after watching the communists for the last ten years, I'm ABSOLUTELY CERTAIN that they would abuse those laws to destroy the remnant. The communists only obey the laws that are useful to them and they ignore the other laws. Puhleeze! Don't insult our intelligence by even giving a 'red flag law' the time of day... It's an asinine concept. A better solution is nationwide open carry for everyone with no permit necessary. Natural selection actually works whereas unicorn pie doesn't work outside of fairy tales.
Other than that I really like your blog. It's on my daily read list.

Wayne Johnson said...

Peter, we already HAVE red-flag laws. They go by the name of involuntary commitment. If a person is too dangerous to have guns, they are too dangerous to be out in society.

All additional laws that can be abused to take firearms without due process are unacceptable.

Peter said...

Reading many of these comments, I'm struck by the number of people who say simply, "Thus far and no further". They will not compromise in any way on the fundamental, overriding nature of the Second Amendment.

I agree with them on principle, as I tried to make clear in my article. I agree that the Constitution is the fundamental law of the land, and any attempt to water down any of its provisions and protections is dangerous in the extreme. Yet . . . that's not how a very large proportion of our countrymen and -women see it. . They don't hold a "strict constructionist" view of the Constitution, and they let their feelings override legal fact. That's the reality with which we're dealing right now. Frankly, I think the "feelings over fact" brigade are in the majority.

You can stand on principle all you like, but eventually you're going to have to make a cold, hard decision. Are you prepared to take the consequences of defying laws that the majority of our fellow Americans want, and support? Because that's the dilemma facing us right now. Be very sure of your answer, because the consequences of your choice - not just to you, but to your family, your friends, and your associates - may be incalculable.

I think we're at a tipping point in this country right now, in terms of the understanding and application of the Second Amendment. If that understanding does "tip", it'll be because feelings and fears have overridden legal principle. That's happened before in our history, on more than one occasion. It may happen again.

Are you prepared to die on that hill? That may be more than a rhetorical and metaphorical question.

Odysseus said...

My wife had a thought and refined it a bit. These laws are basically "Fill in the blank" Bill of Attainder. Instead of congress going through the trouble to pass a law saying John Smith is a menace and is to be deprived of rights and property without trial, the law says (name to be filled in by panicky snowflake) is a menace and is to be deprived of rights and property.

Aesop said...

Revoke the Second Amendment. I don't care.
Do it tomorrow. It's only there at all to restrain the government.

get rid of it, and all I have left is natural law rights which descend unbroken and irrevocable since Adam (or Australopithecus if you prefer), and you cannot revoke those rights any more than you can repeal gravity.

And with or without the hedge of the Second Amendment, the moment you try to tyrannically infringe on my absolute right to self defense, I can send you to hell on a shutter with a clear conscience.
if that bill include 150M of your gun-grabbing fellows to secure my peaceful freedom, I'll stand on that pile of skulls proudly, and sleep soundly at night afterwards.

This debate is going to devolve until its hands-on, no-holds-barred, and I promise one and all, it's one where the meek shall surely not inherit the earth.

If the communists pushing this idiocy are bound and determined to go there, I'd rather it was sooner, before age and infirmity sidelines me from doing my share.