"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