Editor Note: much of this post is pulled from a Daily Signal article. The link is now provided and the content from that post is now offset to show its origin.
New Hampshire has a “Red Flag” bill in the legislature. The question is whether there is such a thing as correct focus on the underlying causes of firearm related violence? Can that term be addressed without broadly infringing on the rights of all gun owners? Is there such a thing as “the underlying causes of violence? Is gun violence different? Why does it require a separate law unless it is to target the gun instead of the individual?
From the Daily Signal:
The argument is that red flag laws can be important in combating firearm related violence. Proponents pay lip service to respect for due process protections. The system and participants in the system have unreasonable bias. To be constitutional the restrictions must be limited in duration. They also must refrain from broadly undermining the Second Amendment rights of gun owners.
Untreated serious mental illness plays a role in suicides and acts of mass public violence. The questions are: If a person is a danger to them self or to others why are they free to roam the street at all? Is there no provision to deal with them now? Are we dealing with the individual or guns? And if they are locked up when they are a danger to them self or others why do we need a red flag law at all? Each red flag law is different.
The Colorado version
So how does Colorado’s law stack up against reality and reason? Perhaps the exercise will help us assess New Hampshire’s version. Colorado’s law allows a person to be temporarily disarmed when a court finds that they pose a significant risk of harm to self or others. Such pieces of legislation are known as an extreme risk protection order or a red flag law.
1. Is It “Gun Confiscation?” The term “gun confiscation” evokes fear among gun owners. The concern is government imposition of civilian disarmament. Laws that diminish the ability of citizens to keep and bear arms used for lawful purposes are an affront to the Constitution. Colorado’s law has limitations and requirements. It creates a legal process to temporarily disarm individuals.
These level of danger must be determined, by a court, to meet objective criteria for dangerousness.
A law enforcement officer, family member, or household member may petition a court to hold a hearing to determine whether a person poses a significant risk of danger to self or others. A finding against the accused causes a temporary revocation of their right to purchase or possess firearms. But can a state revoke a god given right supported by the U.S. Constitution?
A petitioner may request an emergency 14-day order if the risk for harm is “in the near future.” The request can be for a year long order if the risk is significant but not necessarily imminent. If the order expires without a new hearing being held and the order renewed, the individual’s firearms must be returned within three days. Their name must be removed from any lists of disqualified persons, at no cost to the individual. There is no requirement to expunge police or judicial records surrounding the matter.
The law explicitly states that this type of finding doesn’t count as a disqualifying mental health commitment under federal law. Such statement is meaningless because state law cannot supersede federal law. It is clearly intended as a wedge law to accumulate names for enactment of a change in federal law. The intention, as written seems to be, that as soon as the order expires, the person is free to exercise his or her Second Amendment rights again without undergoing additional restoration processes.
Proponents assert that this law doesn’t impose general prohibitions on all gun owners. It allows for temporary restraints on individuals who are genuinely a risk to personal or public safety. It is only for the length of time that they pose a risk. If that were true wouldn’t there be frequent named and required assessments. As written it is a stair step to permanent confiscation of weapons at the individual level. This is an obvious exercise in weasel words.
2. What About Due Process? No person’s constitutional rights should be revoked without first affording him or her meaningful due process protections. Colorado’s law generally ensures that the process for restricting firearm access via a red flag law has the same protections in place as its process for involuntarily committing someone to mental health treatment. There is no articulation why any law will address or allay any fear.
Once a petition is filed for a year long order, the court must hold a hearing within 14 days. If this is a seriously impaired individual: Why does it make sense to allow days to act? The defendant is entitled to legal counsel and the full array of due process protections for a civil commitment hearing, including the right to testify, to present evidence, and to cross-examine witnesses.
The burden of proof is on the petitioner to show by clear and convincing evidence that the individual is a significant risk of danger because of their access to firearms. If the petition is for a 14-day emergency order, the hearing must be held within one court day, but it may be done without the defendant present. The burden of proof is also lower, at a preponderance of the evidence. The petitioner must show that the risk of harm is in the “near future.”
The petitioner must seek a full-fledged hearing for a yearlong order or the emergency order expires after 14 days and the individual must have their firearms returned. Orders don’t renew automatically. Any petitioner who requests a renewal must again show that the person is still a significant risk of danger.
If a petition is granted, the defendant may later request that the court remove the order before its expiration date. To prevail they must show that they are no longer a risk of danger. It is common in all civil and criminal procedures for the person appealing a decision to bear the burden of proof. The hole in due process is that there is no provision for lifting the restriction should the defendant’s situation change before the end of a year.
3. What About Actually Treating Them? This law “kicks the can down the road.” It takes away a person’s guns without actually treating them. Passage of the law presupposes integration of red flag law with the existing mental health framework. The framework assumes adequate facilities and avenues of treatment. Under the Colorado law, whenever a red flag order is granted, the court must also evaluate whether the individual meets the criteria for an emergency mental health assessment or for court-ordered mental health treatment.
Regardless of whether the individual meets that criteria, the law mandates that he be provided with resources regarding behavioral health treatment options, presumably as a means of facilitating his ability to later demonstrate a more stable and less violent frame of mind. The law commits the individual charged to the mental health system whether or not they are found in need by the court.
4. Are Red Flag Laws Dangerous for Police? Law enforcement officers often respond to dangerous situations. There is no practical difference between serving a red flag order, serving a normal arrest warrant, or taking someone into emergency protective custody when they’re in the middle of a mental health crisis. Red flag law allows “mentally unstable” people to be disarmed before they actively engage in violent behavior directed toward themselves or others.
It’s already the case that untreated mental illness is major cause of concern for responding officers. Many physical attacks on police officers are by mentally ill individuals. The goal of red flag laws is to disarm these individuals. They assumption is that they should be routed toward proper treatment before reaching a crisis stage. This makes cops and communities safer from potentially volatile situations.
Reasonable people can debate whether certain aspects of Colorado’s new law should be altered as a matter of policy. Should the order last for only three months, or six months instead of a year? Should people who knowingly file baseless petitions face criminal penalties? Would it be a good idea to ensure that all records of a petition are expunged if the court doesn’t grant it, or that granted petitions are sealed after a certain period of time?
Anti-Second Amendment rhetoric is ubiquitous in recent years. The question is whether there is such a thing as correct focus on the underlying causes of firearm related violence, without broadly infringing on the rights of all gun owners.
Daily Signal, Peyton Smith & Amy Swearer, April 18, 2019