NY Red Flag law unconstitutional

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zukiphile

New member
https://law.justia.com/cases/new-york/other-courts/2023/2023-ny-slip-op-23088.html

...in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees, such as a physician's determination that a respondent presents a condition 'likely to result in serious harm,' before a petitioner files for a TERPO or ERPO.
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In other words, due process requires evidence then state action, not state action and a scramble for supporting evidence, which is the structure of many RFLs.
 
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natman

New member
The basis for this decision is that exercising one constitutional right, the Second Amendment, does not invalidate other constitutional and legal rights, such as due process and presumption of innocence.

Good.
 
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44 AMP

Staff
What really impresses me is that the case ruled on resulted from an incident in Jan this year, and we have a ruling in early April! Comparatively speaking, that is blindingly fast!

I think the ruling tossing the law is a good thing, but doesn't go far enough. The specific law got tossed because it wasn't written well enough to "play by the established rules", not because it was a red flag law, which I think should ALL be tossed on general principle.

I do not disagree with the idea of securing someone deemed an imminent threat to themselves, or others. What I vehemently disagree with is the way the red flag idea is being applied.

Some one deems you a threat, the state comes and takes your guns. THEN as much as a year later, you get your day in court. This delays your ability to exercise numerous rights, among them right to due process, right to present evidence in your behalf, right to face your accuser, and several others, and in my opinion, falls directly into the "a right delayed is a right denied" category.

The way I see it, IF an individual is enough of a risk to justify the state removing their firearms, then they are enough to a risk they should NOT be left at liberty, able to threaten public safety via other means.

Seizing their guns but leaving them free to do harm in other ways is just barking stupid, and is wide open for all kinds of abuse. Allowing the state to act, without charges, without arrest, without the long established due process is just WRONG.

These laws are a feel good solution that does nothing to actually make the public safer, assumes guilt without evidence and denies due process and other rights.

In blunt terms, I think that if a person is enough of a risk that the state needs to seize their firearms, then the state also NEEDS to seize their person. Don't just take guns and let them go, lock them up, USING DUE PROCESS.

I keep wondering, who gets the blame if the state takes the guns (effectively saying "now you're safe" to the public) and that person they left free, then goes and gets some chains, padlocks, can of gas a ligher and burns down a Niteclub with everyone locked inside....

Is there a better way to protect the public? I think so. But we're not doing it. Tossing out the crap kind of ideas that red flag laws are (the way we have them now) is a good first step.

Thoughts?
 
A

Aguila Blanca

Staff
zukiphile said:
https://law.justia.com/cases/new-yor...-op-23088.html

Quote:
...in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees, such as a physician's determination that a respondent presents a condition 'likely to result in serious harm,' before a petitioner files for a TERPO or ERPO.
In other words, due process requires evidence then state action, not state action and a scramble for supporting evidence, which is the structure of many RFLs.
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The decision is short, and to the point. Excellent.

I wonder how many other red flag law states other than New York have a statute requiring a physician's evaluation before a person's liberty rights can be curtailed. That's the basis of this ruling. Not some all-encompassing constitutional reverence (although the court did cite McDonald), but an existing state statute that directly conflicts with the Topsy-turvy version of "due process" in the NY red flag law.
 
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cdoc42

New member
Lots of luck getting a physician involved, not to mention a required second opinion, in red flag laws such as this one. Any prescription for any antidepressant could find a physician dragged into court for failing to alert the authorities in the event that the patient unpredictably harmed him/her self or others during a treatment encounter. Worse, forcing physicians into this task would find primary care physicians refusing to treat emotional disorders and shifting that responsibility to psychiatrists, further overloading an already shortage in that specialty.
 
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Metal god

New member
What’s to stop the state in appointing/hiring Dr/s specifically for this purpose to say what they want them to say . States/government hire experts all the time to legally say what ever they want . This would also give them qualified immunity, because they would be giving their opinion in their official duties as a government official/employee so this would help with their liability concerns. This seems like we are headed towards a FISA type thing and I’m sure we’d all be happy with that .

I’m with 44 in thinking the need to stop eminence but can’t think of one way of doing it where due process is followed and the procedure is effective at the same time . Maybe if the state believes the danger is so eminent . They put a 48hr psych hold on the person . I think while the Dr/s are doing there thing in that 48hrs you are not a danger to others during the hold therefore no need to confiscate any weapons. You also get to hire your own lawyer as well .

I would add one thing to that whole thing . If you are deemed not to be a threat , whoever filed the complaint SHALL pay for all legal fees as well as any missed wages regardless if its the state or a private citizen who initiated the process . That needs to be written into the law as a Shall not a may . There must be a deterrent for wrongful complaints.
 
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44 AMP

Staff
Are you familiar with the 2020 case where a woman filed for a ERPO (red flag law) against a police officer? Her standing to file for the order was because she claimed that she and the cop "had a child in common"?

The "child in common" language is in the CO law used, and is intended to cover domestic situations where one of the parties is neither married to, or the biological parent of a "child in common".

When it turned out that the "child in common" was the woman's son, who the officer shot and killed when the son attacked him with a knife in 2017 and that shooting was the only thing the officer and the woman had in common, the woman was charged with perjury, and I think a couple other things, and of course the red flag motion was dropped.

Last I heard, the woman had fled to avoid prosecution and they were looking for her.

This is just one way the red flag laws can be abused. THAT time, the abuser didn't get away with it....
 
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ammo.crafter

New member
NY

This is a legal ploy taken by state AG offices.

The states have a bottomless pit (our taxes) to prosecute these statutes that they know cannot be enforced.

The average citizen does not have unlimited funds to defend against these charges, It's economics,
 
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Aguila Blanca

Staff
Yes, Susan Holmes was tracked down, arrested, tried, and convicted. But the case is a poster child for how these "red flag" laws can be abused by anyone seeking revenge. And the laws are getting worse, not batter. My state adopted a red flag law similar to Colorado's a few years ago. Then, a year or two ago, my state revised it's red flag law. The original version required a law enforcement involvement before a protective order (or whatever they call it) could be issued. Now the new version has removed that, and made it so that virtually anyone who even claims to know the person can petition for a protective order -- and get it.

The subject of the order isn't notified of the initial ex parte hearing (which is, of course, what ex parte means). The first they're likely to know about it is when the police show up and demand all his/her firearms. Then they have to wait for several days or weeks until they can get a court date to try to convince a judge that they should be allowed to have their guns back.

These laws make a mockery out of the concept of due process.
 
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44 AMP

Staff
These laws make a mockery out of the concept of due process.
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They do make a mockery of what we believe proper due process should be. What it was considered to be since the time of our nation's founders on...
you know, little things like the presumption of innocence until PROOF of guilt, among others.
 
D

DaleA

New member
There have been many sound legal arguments presented here and ALL of them deserve consideration---I don't disagree with any of them.

But I'm adding a couple points here:
1. When the LE comes to confiscate a gun in MY state (MN) there is no gun registry. They don't actually know if someone owns ANY guns. So, will they do a search of the residence looking for guns? What would the search entail? Opening ALL the drawers? Going through ALL the boxes in the closets, in the attic, in the basement? Taking off the heating vent covers to see if a gun has been hidden there? Just how far are they going to go?

2. After LE drives off with the person's firearms the person is left with their, knives, machetes, hammers, chainsaws, pressure cookers, etc., etc., etc. and do the LE folk know if the person has a storage container somewhere? Do they know if the person has a friend or relative that would lend them a gun? Do they know that most 'domestic violence' reports involve fists? (I'm not sure this is true.) Also, if it is 'harm to oneself' do they take away pills, rope and access to tall buildings?

Inquiring minds want to know.

(If anyone has any first hand experience I'd REALLY like to know what LE leaves a house looking like after they do a search.)
 
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44 AMP

Staff
Check your state Constitution, and any other applicable laws regarding "search and seizure".

Our Fed Constitution requires a warrant describing places to be searched and items to be seized. And it needs to be pretty specific.

As to the condition they leave your property in, after the search that's going to depend on who is doing the searching and what their governing authority will let them get away with.

You might get lucky enough that the cops will behave look around the obvious places and some of the less obvious and not trash the place in the process. Wouldn't count on that, but one can hope.

Oher end of the spectrum is they will tear everything apart, find nothing, then just leave. They can, and have done that.

Your only real option is to fully document (video, especially) the condition of your property before (like now) and what they leave after the search. THEN submit that as evidence in your lawsuit for damages and compensation.

I know of one case (though it was back during the Clinton years, IIRC) where the ATF "searched" a house when the owner wasn't home, looking for (illegal) machine guns. They had a warrant, of course.

They broke the front door off the hinges, trashed the house, cut open the gun safe, pulled all the guns out and, finding no machine guns, left them lying in a pile on the floor, and walked away, leaving a note that said "nothing taken ATF".

Neighbors kept an eye on the place until the owner was able to replace his front door. The extreme end of the range is cases like this, they can tear up, break and destroy your stuff "searching" for illegal items. They don't HAVE to be nice, or careful and they don't have to fix anything they break. It doesn't seem right, but they can do that, and you need to sue (and win) to recover damage compensation.

IF their search was fruitless, generally you will win compensation...at some point down the road :rolleyes:

The only persoanl expirence I have with my place being searched was a couple decades ago, Sherrif deputies, looking for my wife's brother. They didn't have a warrant, and they politely asked if they could look around. Wife's brother wasn't there, we told them, but did allow them to look around. They were polite, respectful, looked in rooms and a couple of closets large enough to hide someone in.

When one of them started to open a dresser drawer, the other one stopped him, and said, "the guy we're looking for weighs 300 pounds, he's NOT going to be in a dresser drawer!" The other one, stopped and said "oh, ...right", sorry... and then they left.

I wouldn't count on that level of respect or professionalism today. I'd like to see it, but I wouldn't count on it.
 
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Tennessee Gentleman

New member
Has there been any Red Flag Law written that passes COTUS muster? Would it be helpful for say, the Second Amendment Foundation to write one for use? Do existing laws used to commit people and Red Flag laws require the same level of proof before guns may be taken?
 
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Aguila Blanca

Staff
Tennessee Gentleman said:
Has there been any Red Flag Law written that passes COTUS muster? Would it be helpful for say, the Second Amendment Foundation to write one for use? Do existing laws used to commit people and Red Flag laws require the same level of proof before guns may be taken?
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I can answer that, because (a) a number of years ago (WAAAAAY before any "red flag" laws), members of my extended family had my aunt taken away for a psychiatric evaluation. I don't recall the reasons why, but I know it was done, and I know it required a court order. I was a minor at the time, so I wasn't involved in the process.

The constitutional (due process) problem with ALL so-called "red flag" laws is that there is no due process. The initial "hearing" is ex parte, meaning that the subject of the order is not notified, is not present, and is not represented by counsel. So on the basis of the unverified statement of basically anyone (in some states), the subject's firearms can be taken away under court order. Most of these laws then require a full hearing, at which the victim of the order can be represented, to determine whether or not the order will remain in force, or if the victim gets his/her guns back.

Proponents of this argue that due process is respected because the victim can show cause why he/she should get their guns back. That's a hollow argument, IMHO. Fist, it's an imposition to have to go to court to prove you are NOT something, when the proper, constitutional approach should be for the accuser to prove that the subject IS something.

Second -- if the subject of the order owns one or two guns, it's not a huge deal for a police department to store them, and for the subject to take them back home if/when he/she shows the court that the complaints in the original petition for the order were fabrications. What about a bona fide collector?

https://duckduckgo.com/?q=pictures+...1f/4f/9a/1f4f9a8fd71321def4bca5fab0e2d9e4.jpg

https://duckduckgo.com/?q=pictures+...6e/81/2f/6e812f823f4c9e8cf0dfe532ccf71eb1.jpg

https://duckduckgo.com/?q=pictures+...intageguns.co.uk/images/ImageLib/gun-room.jpg

A serious collection may involve hundreds of firearms, and the value could easily be in the hundreds of thousands of dollars. Are the police going to handle rare, collector-grade firearms with the care they deserve? Are the police going to store the firearms in a climate-controlled room, properly separated so they don't scratch or mar other firearms? Are the police going to break out the Dremel and carve a property ID number into each and every one of the fiirearms -- thereby destroying much of the value of rare firearms?

TL:DR -- No, none of the red flag laws pass constitutional muster. (IMHO)
 
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DaleA

New member
Thanks for answering my questions.

Let me hasten to add that my two points:
1. What would your house look like after a search.
2. Is ANY good really done if this 'dangerous' person is still left free to do whatever they want.
I don't think constitute a LEGAL reason to stop a red flag law. We need real arguments (like many that have been posted here above) to stop them. I was just curious about these two (probably not relevant) points and I thank again those that answered.

Minnesota legislature just might pass such a red flag law. 'Progressives' won, state house, state senate and governorship and they are giddy with power.
 
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44 AMP

Staff
Has there been any Red Flag Law written that passes COTUS muster?
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None that I know of.

Would it be helpful for say, the Second Amendment Foundation to write one for use?
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No, I don't thinks so. And, why would we? "Aid and comfort to the enemy" is a form of treason, after all.

I wish people would realize that the entire idea of "red flag" is just WRONG. Might be more honest to call them "Red Banner" and put a hammer and sickle on it. It is exactly the thing authoritarian dictatorships do. Take now, go to court sometime later...

We should NOT be figuring out how to help these people write laws so they pass Consitutional muster (IF its even possible), its just the wrong thing to do.

What we should be doing is actually USING the systen we HAVE, one that is as fair and respectful of ALL our rights, and follows proper due process.

The way I see it, the real problem we have is that we have a system for dealing with dangerous unstable people but it appears the authorities are AFRAID to use it. WHY?? its simple, its a threat to them, personally, IF THEY ARE WRONG.

Think false accusations, possibly false imprisonment, perhaps illegal seizure of property, and...and...and all the possible damages people suffer from that.

Think that may be grounds for lawsuits, against the INDIVIDUALs (In and out of public service) who caused that to happen??? I think so. And rightly so. Personally, I'd happily sue every one of the people who LIED to put me in that position. Can't really think of anyone who wouldn't.

So, what we've got is a system that could work but isn't being worked because people are afraid of getting the butts sued off if they are found wrong about the "dangerous" person. So, instead of risking that, they make "red flag" laws which allow them to seize guns, NOW without proof, without anything but an accusation, and worry about where the chips fall and "due process" later on down the road. Not Good! :mad:

Do existing laws used to commit people and Red Flag laws require the same level of proof before guns may be taken?
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Absolutely NOT. And this is the worst thing about red flag laws. THEY DON'T REQUIRE ANY PROOF.

THe process to commit someone requires evidence, and review by a court. You get to face your accusers, BOTH sides can present evidence, which can include testimony by medical experts. Then a judge rules.

Red flag laws require NONE of that. They allow the state to seize your guns, NOW, and then give you a court date (sometime with a year) and that hearing is the first opportunity you get to make your case.

Please abandon the idea of making red flag laws "better". Focus on making them go away. They are wrong headed and as written violate a lot of long standing Constitutional enumerated principles.

There is no magic wand that can stop bad people from doing bad things. We are being told (constantly) that red flag laws, background checks and banning "assault weapons" are such a wand. They are not. But too many people believe it, anyway.

Everybody wants a quick, easy simple, and preferably painless solution to the problems we have now. Gun control advocates claim they have one. They are lying.

Don't help them.
 
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Aguila Blanca

Staff
44 AMP said:
THe process to commit someone requires evidence, and review by a court. You get to face your accusers, BOTH sides can present evidence, which can include testimony by medical experts. Then a judge rules.

Red flag laws require NONE of that. They allow the state to seize your guns, NOW, and then give you a court date (sometime with a year) and that hearing is the first opportunity you get to make your case.
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And even at that hearing (when it finally happens), due process is turned inside out and upside down. One of the purported bedrocks of our legal system is supposed to be that an accused is innocent until proven guilty. If you are on trial for a crime, you don't have to say a word. The prosecution has to present enough evidence to convince the jury of your guilt, and your defense can consist entirely of shooting down the credibility of the prosecution's evidence and witnesses.

With red flag laws, the accused is guilty until proven innocent. His property has already been seized by the government, and at the post-seizure hearing instead of the accuser having to prove that the subject of the order IS a danger, instead the subject of the order is forced to prove that he is NOT a danger.

That's not the way our legal system is supposed to work.
 
T

Tennessee Gentleman

New member
I'm not disagreeing with you guys at all and I KNOW what can happen with Orders of Protections during divorces and such.

But for arguments sake, the shooter in Nashville was obviously messed up and if her parents had known she had guns would have no way to get them away from her.

Plus, my perception, is that it is hard as the devil to get someone involuntarily committed and some of these shooters don't exhibit the criteria needed to put them away. I think it is really hard to institutionalize someone and I think the demand is for something else. Not a total commitment but something less that gets the guns away. I don't think the shooter here exhibited such behavior to get them fully committed.

Anyway, I am with you on the ex parte thing. That dog don't hunt but I wonder if there could be an answer like we did with domestic abuse where the police arrest and take in the guy even if the wife won't press charges.

Thanks for your input. As to giving aid and comfort, sometimes if you get ahead of your opponent you get a better deal?
 
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