Prior to a couple of weeks ago, who ever heard of “red flag” laws? Now, they are all the buzz. What are they? And why are thy controversial? Let’s start with some facts. They are also known as extreme risk protection orders (ERPOs), and they allow the confiscation of legally owned firearms from anyone a judge deems a risk to self or others.
Of course, the criminal justice system has always had this power. “Red flag” laws, however, expand it far beyond the criminal justice system. In states like Florida, Indiana and Rhode Island, it is given to law enforcement as well. Others, like Hawaii, give any family or household member, teacher, medical professional, coworker or law enforcement power to file a confiscation petition with the court.
When such a petition is filed, there is no requirement for a trial, evidence or a hearing—not even for the accused to be present or notified. Discretion to grant or deny lies totally with the judge. Not only so, but the standard of proof guiding his discretion is lowered by “red flag” laws.
Most criminal convictions must be “beyond a reasonable doubt,” the highest standard of proof. Civil disputes must convince a jury of “clear and convincing evidence,” or at least a “preponderance of evidence.”
“Red flag” laws like those in New York, however, are not constrained by any standard of proof at all. Not even “substantial evidence,” or even the lowest level, a “reasonable suspicion,” is required before confiscation. Confiscate first and ask questions later.
“Red flag” laws require no hearing before confiscating but do require a hearing afterwards. Even then, the burden of proof is not on the court to justify its confiscatory judgment. Rather, the victim must prove a negative--that he is not a threat. He is guilty until proven innocent—and there’s not even the accusation of a crime.
Of course, all of this is driven by fear, namely, the specter of a deranged individual with a gun. But the specter of disgruntled co-workers, ex-spouses and activist teachers or social workers using these vague laws to harass the innocent ought to be at least as frightening.
We are witnessing the implosion of civility in public discourse. Public officials and media types have become indistinguishable from internet trolls. They hurl irresponsible charges with neither evidence nor fear of consequence. In this environment, sloppily written laws are not only prone to abuse, they are designed for it.
Not only is there no safeguard or penalty for malicious accusations, the accused doesn’t get a public defender. If he can’t afford a lawyer to retrieve his property, the temporary confiscation may become permanent. If he can, his legal bill must be paid out of his own pocket.
Finally, consider this. Deranged people have used knives, claw-hammers and automobiles to assault their victims, but these can't be confiscated under “red flag” laws. The only private property that can be confiscated is also the only kind protected by its own constitutional amendment. That’s not ironic. It is intended.
In a similar way, “red flag” laws have undermined the First Amendment as well. While the vilest and craziest speech remains inviolate, three types of speech are regularly denied protection. Speech defending the unborn is forbidden in public if it is close to an abortionist. Speech that upholds the institution of marriage and speech that upholds the complementarity of the sexes are forbidden by SOGI laws.
Also like “red flag” laws, private citizens have been empowered to unleash the limitless resources of government against fellow citizens. A single complaint to a “civil rights commission” can trigger years of legal trouble. People like Jack Philips, Barronelle Stutzman, Melissa Klein and many more, have been forced to spend hundreds of thousands of dollars on legal defense in order to defend their right to speak obvious truth.
Meanwhile, those who file the complaint have little out-of-pocket expense. The government does all the heavy lifting. If the courts eventually decide that the complaint was without merit, there is no penalty at all for the person who unleashed the legal harassment.
“Red flag” laws outsource unconstitutional abridgements of the First and Second Amendments. They don’t take all guns or forbid all speech. They open a back door for random players to harass you until it costs so much time and money to exercise your rights that you voluntarily give them up.
I am as frightened of a crazy man with a gun as anyone else. But I am even more frightened of crazy neighbors with the right to take them away. For that matter, I am not that crazy about any infringement on constitutional rights without the due process of law. That should be a red flag to anyone.
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