Red Flag Gun Law are promoted as a means to prevent illegal use but in effect are designed to usurp Constitutional protections of individuals and due process rights. Many oppose these as a violation of the Second Amendment, which it is, but the intent isn’t specifically to prevent you from possessing a firearm as it is a means of government control of your individual actions and result in violation of many of your rights established under the Bill of Rights. While many think these are relatively new, those of us advocating for parental rights have been fighting these unjust “Red Flag” laws enacted under the guise of protecting women and children which are now being spread to a greater portion of society.
The first problem with Red Flag Laws is a denial of due process. The initial filing occurs ex parte, meaning the person seeking the order files it with a Judge without the targeted person allowed to present a counter argument in court. The filing is considered a civil matter and as such the standard of proof is greatly reduced to a preponderance of the evidence (51% for) but with no rebuttal and opposing argument it isn’t difficult to see that the person filing can reach that level of “proof.” Further Judges are reluctant to deny a request for an order as there are few, if any, repercussions to the Judge for issuing the order (He’s acting based on the “evidence” and further has judicial immunity from being sued). However, if he doesn’t issue an order and the firearms are sued illegally the Judge (many of these elected positions) faces public notoriety and backlash for not preventing the crime. The government is stealing your property without you being charged with a crime of given a chance to even address the allegations against you.
A discussion of standards of proof is needed to understand how this process violates the US Constitution. As a police officer I was supposed to establish a suspicion (usually an allegation by a person) that a crime was, or was about to be, committed before investigating a person. Next I had to develop evidence giving me a reasonable belief that this person committed a specific crime and I could present this to the court who, finding probable cause, would issue a search warrant under the Fourth Amendment. While it could be argued that the process for “Red Flag” Laws is similar to this it ignores the fact that the processes for a “civil” matter do NOT rise to the same level of scrutiny that criminal matters do and it is the one sided allegation with no investigation which is presented to the civil judge.
Once issued the order needs to be enforced and here the “civil matter” is turned into a criminal matter as the police are the enforcers of the order and it is violation of the order itself which makes it a criminal matter. So possession of a firearm itself is not per se a criminal matter, but you failing to abide by the order (criminal contempt or contempt of court depending on jurisdiction) is the violation of law. Remember, the targeted person has no idea the police are about to show up at his door and seize his legally held firearms. And armed with an order that says he is a danger to himself or another is bound to cause the police (like the Judge) to err on the side of safety and respond in an aggressive manner.
An argument for these Red Flag Laws, which must here be rebutted, has been to prevent mentally ill people from harming themselves or another with a firearm but in these instances the government already has a process in place. A police officer who has probable cause (a preponderance of evidence) a person is a danger to themselves or the public can take them into custody on mental health grounds (again varying on jurisdiction) and deliver them to a health facility for evaluation, said facility able to hold them for 72 house for evaluation and if it is found they are a danger then the process to enforced mental health treatment starts. This an action totally separate for government criminal enforcement. One does wonder that if a person is a danger to themselves or another why it is reasonable to seize their firearms and then let them free to avail themselves of the multitude of ways one person can harm themselves or another?
There are many instances of Red Flag Order confiscations going awry but the fact is that most people, when presented with a court order and armed police officers, comply with the seizure and look to use the system to right the wrong. Many jurisdictions give a 2 week return date for a hearing but in practicality the 2 week return is a preliminary hearing only where people are advised of their “right” to “prove their innocence” and obtain legal representation towards this. And we can see that the government has moved the burden of proof, which criminally lies with the government and civilly lies with the petitioner, onto the defendant/respondent. The entire Bill of Rights has been turned on its head with you guilty until proven innocent. Pray tell, how does one PROVE that they are not going to commit an act in the future? Perhaps the government will develop a “Precrime” division with some “Pre-Cogs” to tell us all what we’ll do tomorrow?
Government regulation of individuals started with government regulation of fathers through (anti) family and divorce courts and the issuance of Orders of Protection (OOP). Initially (anti) family/matrimonial civil OOP’s were limited to persons married and those having a child in common, like above the civil action given to criminal enforcement. This was expanded to “persons in an intimate relationship” as defined by the person filing with ex parte filings allowed. But not allowing enough of the population to be controlled the ability to file for “civil” protective orders enforced by rule of criminal law the authority to file needs to be expanded and the persons filed against also. So the preferred government filers are “police, teachers, and mental health professionals,” the government controlled professions already interfering with parental rights and brain washing children, many of them gun control and advocates arguing no citizen should carry a firearm.
Like persons facing allegations of Domestic Violence (DV) we can expect the “Gun Red Flag” civil laws to work the same developing a data base of alleged violators. If arrested and found not guilty you can have your record expunged but allegation of DV exist in a data base in which you can NOT have allegations expunged. These allegations exist in perpetuity are used as a means to determine future violations and so allegations then become the basis of the preponderance of evidence used to deny you a Constitutional Right. The data base of allegations is used to determine “primary aggressors and future violators” and we can expect the same tactic to be used on legal gun owners. The fear is not government but is fear of your fellow citizens, brain washed friends and family members, and the public at large who will file complaints followed up on by “professionals” with no adjudication. Every anti gun person becomes a government agent just as every single date becomes an “intimate relationship” if she says so, subjecting you to government control.
Advocates for Red Flag Laws will tell you that OOP’s work, ignoring the fact that the crimes they are “preventing” carry higher sentences than violating the OOP does. So in effect if an OOP is issued the only person it will work on is the person who was not likely to commit the crime “prevented” in the first place. We can expect the same padding of statistics to occur in states which add Red Flag Gun seizures. And can anyone explain why we need to seize firearms from a man who is dangerous but then return the man into the public to harm himself or another with other than a firearm? If a piece of paper stopped a criminal from committing a crime we would not need to get bail on arrestees as a piece of paper would work against repeat offenders. We see how well that works in “no bail” states where repeat offenders run rampant.
I am a life member of multiple 2A Organizations and a 25 year parental rights activist in addition to being a 33 year (retired) Law Enforcement Officer and PBA Representative and have been writing kindred (or which should be kindred) organizations, Republican’s and Democrats, and civil rights organizations since the 1990s about the continuing encroachment upon due process of law and the US Constitution with no response. I was also victimized by this system, my story here. I also advocated for many parents going through this process, many with valuable gun collections which were seized, hunters and target shooters restricted from their recreation, and many police officers who were placed on “the rubber gun squad” being restricted from carrying a firearm and placed on desk duty, among others. Most spend thousands of dollars in attorney’s fees, lost time and money from work, a public assault on their character which takes months, if not years to adjudicate.
With intimate partners and gun owners subject to “pre-crime” orders restricting our conduct I can only guess which class of people will be the next subjected to a Red Flag Law? Continue to ignore the warnings and you could be the next one subjected to tyranny and loss of liberty under the guise of “protection”.
Lt. James H. Hays (Ret)
Retired En-Con Police Lieutenant, past Investigator Governors LI Solid Waste Task Force, En-Con Police Officer NYS DEC DLE, Past SUNY University Police Officer, Past NYS Park Police Officer, Past Municipal Police Officer, Past Military Police Officer and Civilian Liaison with Killeen, TX Police Department, 33 years LE experience.
Founder, NYMAN (nymensactionnetwork.org), Co-founder and Past President of The Coalition for Fathers and Families NY, Life Member, American Coalition Fathers and Children, Life Member National Coalition of Free Men, Past President FRA Capital District Chapter, Past Board Member FRANYS, Founder and Past Treasurer NY Men’s Action Network PAC.
Life Member NRA, Life Member NYSRPA, Life member NAGR, Life Member 2A Foundation, Life member of Gun Owners of America, Life Member NYS Conservation Council.
Retired Member PBA of NYS, Past Chief Steward, En-Con Police Officers and Supervisors, NYSCOPBA, Past Executive Board Member Council 82, AFSCME, AFL-CIO.
Member and Past regional representative for the NY Conservation Officers Association.
Certified Critical Incident Stress Management with 1000+ contact hours in individual and peer support for fathers and families in crisis.
Bachelors in Family and Society, SUNY ESC, AS Business Administration, AS Environmental Conservation and Law Enforcement, En-Con Police 8th Basic Academy, Certified Police Special Topics Instructor, (Domestic Violence, EVOC, ATVEOC, SEAVOC, Solid Waste Identification and Enforcement), En-Con Supervisors Academy, University Police Basic Academy, Military Police School, NCO Training School