NY Red Flag law unconstitutional

[zukiphile]

Now, I fully agree with the 9/11 example and I argue to my anti-gun acquaintances that after 9/11 we didn't ban air travel but we did beef up security and change (forever) the flight travel experience.

And not for the better.

That episode produced some of the same problems of security theater, looking to government for an answer and safetyism. Making it more difficult to dress properly when flying, adding delays, and confiscating bottles of water and toothpaste at the hands of another layer of federal government is UBL practical joke on us all.

Children are hit by cars around schools and some of them die, but we don't ban cars within the vicinity around school because the risk is slight and the cost would be large.

There is public policy discussion about banning guns or making people take off their shoes and belts to get onto an airplane because most people don't think (wrongly) it affects their lives much.

I categorically refuse to [accept] the anti gun argument that they want to save lives .

On the nose. Children being murdered inside schools evokes a lot of emotion, but it's a rare cause of childhood death. We'd save more young lives if we banned smart phones and candy bars. If the cause of school shootings is largely social contagion, the fascination with it is part of the cause of the events, which are also exploited for policy backed by the same camp who wanted to regulate/ban arms for being too cheap, too concealable, and too easy to fix a bayonet to.

We want these mass shootings to stop.

I would like murders of all sorts to stop. I wouldn't restrict that to shootings or multiple homicides. Being the one fellow pushed onto train tracks would also be regrettable. If the conversation is fixated only on mass events that are shootings, it's fair to ask why. Shootings aren't even illegal; murders are.

 

[Tennessee Gentleman]

And not for the better.

That episode produced some of the same problems of security theater, looking to government for an answer and safetyism. Making it more difficult to dress properly when flying, adding delays, and confiscating bottles of water and toothpaste at the hands of another layer of federal government is UBL practical joke on us all.

Perhaps you have a point as I hate the extra security too. But we haven't had a repeat have we? Also, we've learned to live with it just like we should do in protecting our schools. Fire Drills, Duck and Cover (in my day) and now active shooters.

Children being murdered inside schools evokes a lot of emotion, but it's a rare cause of childhood death.

True again but you miss the point. That it is happening with a fair amount of regularity and it is horrific to the public. Might make sense to take steps to stop it rather than saying children get killed by swallowing Legos or what ever.

 

[Tennessee Gentleman]

How many people are killed by drunk drivers or other alcohol related events every year ? Over 10k every year and yet nobody is on the hill top screaming ban drinking alcohol? Where’s all the money in the anti alcohol movement?

More voters like booze than they like guns.

 

[zukiphile]

Perhaps you have a point as I hate the extra security too. But we haven't had a repeat have we? Also, we've learned to live with it just like we should do in protecting our schools. Fire Drills, Duck and Cover (in my day) and now active shooters.

"We've learned to live with it" reads to me as the government took something from us and we aren't getting it back. It isn't to our credit that we think it's OK for a TSA minion to take our fingernail clippers.

If we were focused on stopping schools from being hunting grounds for rare murder scenarios, maybe we'd stop disarming the people in them.

True again but you miss the point. That it is happening with a fair amount of regularity and it is horrific to the public. Might make sense to take steps to stop it rather than saying children get killed by swallowing Legos or what ever.

A fair amount of regularity? I don't think that's an ideal description of something that happens and captivates 24hr news channels once or twice a year. Are we still very worried about post office shootings? That was a genre before Columbine, and there have been a bunch since 1986, but I'd be hard pressed to say they happen with fair regularity.

Are individual murders not horrific to the public? Is something sadder than a child being killed by a car in the street? Isn't it disturbing to them to see someone pushed in front of an oncoming train?

Lots of things are horrific. Feeding those feelings with a new law each time isn't a reasonable way to make laws.

We do take steps to stop these events. We make it a crime to shoot people without provocation or defense. We have prohibitions on felons or anyone subject to a restraining order buying from licensees. We have probate and commitment processes for people who can't look after themselves. Turns out one of the most reliable ways to stop them is to shoot the murderer.

 

[Paul B.]

"Turns out one of the most reliable ways to stop them is to shoot the murderer."

Ahh yes, but then you've violated their civil rights. We can't be having that, now can we?
Paul B.

 

[44 AMP]

Turns out one of the most reliable ways to stop them is to shoot the murderer.

All that really does is stop one individual from doing it AGAIN. Not that it is a bad thing, but it has very little or no effect on other people committing murder, these days.

We have had laws against killing people for fun or profit about as long as we have had laws. Hasn't stopped murder, yet, doubt it ever will.

Mankind is in a position unique in history now. Our technology gives instant continuous communication access to any and everyone on the planet connected to "the net" or "the web".

We could argue about people being more or less gullible than they were in the past, but there is no argument that we are exposed to information (of ALL types) at a level much higher than ever before in history.

Extremism is the order of the day now, probably because people pay more attention to extremes and so, extremism (about nearly everything) sells.

FEAR SELLS.

Everything now is "the end" of life as we know it. The end of our democracy, the end of civilization, the end of all life on earth, what ever fantasy the snake oil seller is pushing, we all have to do whatever they claim to be the solution (and pay for it) or its "the end of all!!"

The way things are being reported (including the language used) and the fact that we get it repeating endlessly 24/7/365 is, I think a large factor.

More specific to this discussion, mass shootings, and in particular those at schools where children are murdered.

What is a mass shooting?? The definition in common use at this time seems to be 4 or more people shot. (or struck by bullets). Using that standard, I hear we have had over 1,100 mass shootings this year alone. Often this is mentioned in the same breath as school shootings, with no mention at all of what a tiny fraction of a percent of the total that school shootings actually are.

Few people care if criminals shoot each other in job lots (the "good riddance" factor) but do care when innocent people (who might be themselves) are shot. And the murder of children is the most horrifying of all.

What is the answer?? What will stop this?? "Common sense" gun control won't do it. No matter how often we get told by some "expert" or study that it will. Consider this fact, we have now, more and more restrictive gun control laws than ever before. Much, much more than we had in the past, and yet at the same time, we have a much worse problem with people being shot and killed than we had then. I sense a correlation there.

Many say the increase in violence with guns is because guns are "easy/easier" to get and because there are so many. Others say there are so many because the public is buying them in greater numbers, possibly because we are being scared all the time by the news, and are pushed towards or even into "panic mode" 24/7 and people want a gun for protection. I think that a plausible idea.

As to "easy to get", not legally. 100 years ago (just to pick a number) what was the legal requirement that had to be met in order to buy a gun??

Having the money to purchase it. Period. And all the paperwork involved was a sales receipt. And, it could be mailed to your door through the US post office.

That's not even remotely the case today. Are we better off now?, safer?? Doesn't seem so to me.

What are we offered as solutions?? Feel good band-aid approaches to the problem usually. Like red flag laws.

Where is it proper to punish people because you THINK they might do something bad?? Are we to assume the govt has the ability to read minds, and be infallibly correct reading what they see?? That can only happen in fiction. It's simply not right to seize property or persons and justify doing that because of what the person hasn't done but COULD do.

isn't that a form of "profiling"??? Something we are repeatedly told is a BAD thing????

Don't red flag laws also violate the idea of equal treatment under the law??

Additionally complicating the matter is that ALL psychological evaluations depend entirely on what the individual being evaluated says. Whether done by police or medical professionals, they cannot read minds, and must rely on what they are told by the person being evaluated. And, sometimes, people lie....some can do it quite convincingly.

Not all that long ago, there was a case where the police did a "wellness check" on a guy concerns had been raised about. They talked with him, and decided he was ok, a little down because he couldn't seem to find a girlfriend, but otherwise ok. The next day that guy shot several people, stabbed several sevearal people and ran over some more with his car. I guess that evaluation was an "Oops!"

The Virginia Tech killer was actually under treatment for mental issues, but the medical professionals didn't report him as a danger because they didn't think he was....30 some dead...another "ooops" moment, I guess...

I don't have the answers, all I can do is look at what has, and hasn't worked though out history and today. And what I see today constantly reminds me of the currently popular humorous definition that says insanity is doing the same thing over and over and expecting different results....

We need to do something different. I can't say what the right thing to do, is. But I can say I don't think red flag laws, as currently written and enforced is the right direction to go in.

 

[Aguila Blanca]

"We've learned to live with it" reads to me as the government took something from us and we aren't getting it back. It isn't to our credit that we think it's OK for a TSA minion to take our fingernail clippers.

It ain't just the TSA.

This very morning I attended the naturalization ceremony for a friend of my late wife. The ceremony was held in the federal courthouse. I knew enough to leave my folding knife in the car in the parking garage, but the gal being naturalized didn't know. As we were leaving the courthouse after the ceremony, she had to detour back to the security station ... to reclaim her nail clipper.

 

[Tennessee Gentleman]

"We've learned to live with it" reads to me as the government took something from us and we aren't getting it back. It isn't to our credit that we think it's OK for a TSA minion to take our fingernail clippers.

Small price to pay for having zero planes fly into skyscrapers killing thousands I would say.

If we were focused on stopping schools from being hunting grounds for rare murder scenarios, maybe we'd stop disarming the people in them.

Or rather (and better) arming and training those in them who wish to serve so.

A fair amount of regularity?

Yeah I would say depending on who you believe for the numbers. dozens or hundreds since Columbine. Certainly many many more than happened in my day.

Are individual murders not horrific to the public? Is something sadder than a child being killed by a car in the street? Isn't it disturbing to them to see someone pushed in front of an oncoming train?

Not like school shootings. Not even close.

We need to do something different. I can't say what the right thing to do, is. But I can say I don't think red flag laws, as currently written and enforced is the right direction to go in.

So back to my original thought, is it possible to write such a law and enforce it in an acceptable and lawful way?

Hint, Saying no it's hopeless prolly won't help our case and we will have them foisted on us and they will certainly be worse than if we put our noodles to work and figured it out.

 

[44 AMP]

I do not think you can write such a law that will pass Constitutional muster However if you were to try I would suggest you forget about inanimate objects and focus on the only real threat, the PERSON.

And additionally, I think that any court ruling designating a person to be a threat to public safety must require some level of investigation before being granted. Such a ruling should never be granted solely on the word of the person applying for the Extreme Protection Order.

And, in order to make that work, the law would have to set up funding and organization in the justice system specifically to handle that in the most expeditious manner possible.

Not easy, not cheap. What else has even a glimmer of protecting the rights of the innocent (and remember until conviction ALL are innocent) and giving some hope of keeping abuse of the system to a minimum.

The Constitution authorizes the seizure of a person under an official issued warrant. (Arrest warrant). And, additionally we have rules about how long people can be held in custody WITHOUT being arrested.

Further, we already have an approved "hold for evaluation without arrest or charges" period of 72hrs (as I understand it),

If a person is reported to be a threat (ERPO applied for) WHY aren't we doing that? Rather than take guns and leave them on the street, why aren't we holding them under the 72hr "psych eval" and actually evaluate if they ARE a threat, or not?

Why don't we ever hear about this possible course of action? THAT system is already in place. Why isn't that better than just seizing guns, declaring "we're safe now" and letting the (possibly) dangerous person go free???

Thoughts??

 

[zukiphile]

Small price to pay for having zero planes fly into skyscrapers killing thousands I would say.

The french don't have people flying airliners into Notre Dame, but they let you keep your nail clipper and shampoo. We should all have the modesty to know that it isn't our place to decide what others should pay for our speculation about safety.

Are individual murders not horrific to the public? Is something sadder than a child being killed by a car in the street? Isn't it disturbing to them to see someone pushed in front of an oncoming train?

Not like school shootings. Not even close.

You don't really mean school shootings though, do you? You mean school murders, because when the school [located] shooting is the shooting of one of these disturbed murders, we all sigh in relief. "School shootings" and "mass shootings" are the chosen locution of people who have an existing policy goal. Viewing the issue through their constructions may lead people to their conclusions.

I think it's useful to distinguish between amorphous levels of asserted public horror and stories that have a lot of coverage because they are seen as the most emotionally manipulative for a specific policy position.

It ain't just the TSA.

No, it isn't just the TSA, but the TSA and Homeland Security arose from an initially modest proposal for better airport security. Only after there was consensus that this would be a good idea was there a demand that it must be a federally payrolled service with an additional unionized federal workforce.

Hint, Saying no it's hopeless prolly won't help our case and we will have them foisted on us and they will certainly be worse than if we put our noodles to work and figured it out.

If you don't know what you are trying to figure out, you don't have a shot at meeting a reasoned goal. If the goal is to just add another law and make the sphere of liberty a little smaller, that's a process without a logical end.

So back to my original thought, is it possible to write such a law and enforce it in an acceptable and lawful way?

What is the gap in existing laws you are trying to close?

 

[Aguila Blanca]

Thoughts??

I agree.

How many times have we seen various members here and on other forums ask if a convicted felon is so dangerous that he/she isn't allowed to touch a firearm, why is he/she allowed out on the streets? Why don't we apply that same logic to potential mass shooters. If they're so dangerous that they sholdn't be allowed to possess firearms, why are they free to possess gasoline and Bic lighters, or motor vehicles, or knives, or axes?

 

[44 AMP]

Not only are they free to obtain other means of mayhem, they are free to use what funds they possess to purchase other guns, on the illegal market. Where the only requirement is having the cash to meet the asking price.

Literally it is a situation where after the guns they had are seized they could be replaced, leaving the "potential" mass murderer in exactly the same position as they were before the seizure, only out the money they had to spend.

So, current red flag enforcement violates our rights, tramples on due process and at most leaves the potential killer merely inconvenienced for a few days, IF THAT, with a net gain in public safety of ZERO. or possibly even less, since the potential killer is now aware they are being watched and will most likely hide their plans and ambitions better, leaving the authorities even more in the dark than they were before. (assuming they even bother to keep an eye on the potential "killer". The might consider taking the guns ended all threat and not bother to keep an eye on someone they probably should....)

How in hell does anyone think this is a good idea?

 

[Tennessee Gentleman]

What is the gap in existing laws you are trying to close?

I think the bar is higher for taking away someone's liberty and committing them to an facility than it should be for temporarily taking away their guns.

The french don't have people flying airliners into Notre Dame, but they let you keep your nail clipper and shampoo.

Not when I was there.

I think school shootings/murders are viewed with much greater horror than a child injured or killed in a car wreck.

Why don't we ever hear about this possible course of action? THAT system is already in place.

Apparently the bar is higher to take away one's liberty than temporarily taking away someone's guns?

Why isn't that better than just seizing guns, declaring "we're safe now" and letting the (possibly) dangerous person go free???

Because crazy people with guns can and often do more damage more quickly than those same kooks trying to make poison gas or use a knife? Guns are effective at killing others easily and that's why we want them for self defense. As I have said before, in the Nashville case, the 90 pound young lady couldn't/wouldn't IMHO have done the damage she did with a bulldozer or 18 wheeler. The gun gave her the easiest and best means to kill others. So, if we could have gotten her guns away then perhaps she could have progressed with her therapy?

If you don't know what you are trying to figure out, you don't have a shot at meeting a reasoned goal. If the goal is to just add another law and make the sphere of liberty a little smaller,

I think we know what we want but we gunners might need to input it rather than have others do it not so friendly for our side. It's a problem. I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

 

[Tennessee Gentleman]

So, current red flag enforcement violates our rights, tramples on due process and at most leaves the potential killer merely inconvenienced for a few days, IF THAT, with a net gain in public safety of ZERO.

So could one be crafted that was more effective?

 

[Aguila Blanca]

As I have said before, in the Nashville case, the 90 pound young lady couldn't/wouldn't IMHO have done the damage she did with a bulldozer or 18 wheeler. The gun gave her the easiest and best means to kill others.

You didn't read up on those Chinese school knife attacks I mentioned earlier, did you?

 

[zukiphile]

What is the gap in existing laws you are trying to close?

I think the bar is higher for taking away someone's liberty and committing them to an facility than it should be for temporarily taking away their guns.

If you don't know what you are trying to figure out, you don't have a shot at meeting a reasoned goal. If the goal is to just add another law and make the sphere of liberty a little smaller,

I think we know what we want but we gunners might need to input it rather than have others do it not so friendly for our side. It's a problem. I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

Emphasis added.

So, current red flag enforcement violates our rights, tramples on due process and at most leaves the potential killer merely inconvenienced for a few days, IF THAT, with a net gain in public safety of ZERO.

So could one be crafted that was more effective?

The synthetic colloquy above helps to clarify. You want to shrink the sphere of liberty for people you assess as nuts "who might have a violent (even if temporary) impulse".

The problem with your question about what could be crafted is the purpose of the COTUS itself. Constitutionally limited government can't properly be expanded just because you or I think someone is a nut and articulate some reason to take their rights. You may find that a frustration when trying to find common ground with people who also want to shrink rights and expand the scope of government, but it's also to your benefit when someone who thinks you are a nut wants to take your rights. You should hope there is no answer to your question.


I'm not a fan of hers, but Ayn Rand made an interesting point. She posited that when someone proposes to take your rights or property, that isn't an invitation to conversation and compromise; it's a declaration of war against you. There's a limit to the utility of her view on communication, but the underlying idea that finding compromise with a hostile idea isn't an inherently laudable task deserves attention.

I'm aware of the draw of civility and compromise. One way to resolve the tension between the bad ideas of people to whom you speak and the coherence of your own understanding is to explain the legitimacy of constitutional limits and the existence of existing state powers. The world is full of nuts and it's a dangerous place in a thousand ways. People who propose to fix the world by growing the state make both worse.

 

[Tom Servo]

I want to make the sphere of liberty smaller for nuts who might have a violent (even if temporary) impulse.

Back to first principles, that makes the sphere of liberty smaller for EVERYONE. Eventually they'll tell us that ANYONE at ANY TIME, could snap and do something awful. That'll become an excuse for all sorts of overbearing measures, and they still won't stop this.

So, if we could have gotten her guns away then perhaps she could have progressed with her therapy?

Perhaps. And perhaps we can take every person who registers the slightest bit of eccentricity and throw them straight into a mental hospital for the rest of their lives. Where does it end?

I remember an incident right after Columbine in which a high-school principal addressed a school assembly. He told the students, look to your left. Now look to your right. One of those people could be the next school shooter.

What does that DO to people as a group? It encourages them to shun and suspect anyone who's a little odd or different. It stigmatizes people who won't do any harm, and ultimately, the ones who ARE going to do harm slip through the cracks.

Incidentally, the Columbine shooters? On the radar. In fact, the county DA had a search warrant for the older kid's house they never served. Parkland? The police had been to that guy's house more than three dozen times. Sandy Hook? Same thing.

This is largely a failure for our systems to follow up when they should have, and it makes "red flag" laws redundant at best.

 

[zukiphile]

Incidentally, the Columbine shooters? On the radar. In fact, the county DA had a search warrant for the older kid's house they never served. Parkland? The police had been to that guy's house more than three dozen times. Sandy Hook? Same thing.

This is largely a failure for our systems to follow up when they should have, and it makes "red flag" laws redundant at best.

I quoted this because it bears not only repeating, but understanding.

The police in those episodes didn't know that the people involved would murder someone. If the police knew there was a murder imminent they could have done something, but they didn't know. We've all seen video of the sort The Civil Rights Lawyer puts out where a PO thinks he should do something even if the law doesn't allow him to. The problem isn't insufficient police power.

Imperfect and limited knowledge is a permanent facet of the human condition. No law fixes that.

 

[Tennessee Gentleman]

So, I think I've demonstrated that I support and would require due process to limit such liberty so I won't respond to the slippery slope arguments. Further, I won't respond to "well they could use knives, bulldozers or poison gas" stuff either because the issue is about guns.

Also, I am not a psychologist but my understanding is crazy (like everything else) is not a "one size fits all" and is also time sensitive sometimes and a spectrum.

Several years ago (pre-1968) we had much greater access to guns but virtually no mass school shootings.

The guns haven't changed but something in the crazy world has. I've read many theories about why but I think many like me are willing to explore tools that might help correct that.

I'm not an expert on mental health (and so far I don't think any of you are either) and I'm not an expert on state by state insanity laws (again I don't see many of you are either) but their appears to be a need to craft better tools for crazy folk who have guns other than commitment to an insane asylum for conceivably the rest of their lives which is (and should be) very very hard to do. Since I lack that knowledge then my arguments might not be as good as they could be. I acknowledge that.

I know this site well and the mental orthodoxy about guns that is here as well. However, it seems we have a problem with mental health and access to guns that needs addressing in addition to hardening special places like schools. As I mentioned before, this problem did not exist really in the relatively distant past. So, my posts mostly to generate discussion on whether it is possible to craft laws that better allow our institutions to (using due process) deal better with the issue of nuts with guns.

 

[Metal god]

Imperfect and limited knowledge is a permanent facet of the human condition. No law fixes that.

Did you just answer all your own questions with that statement? Although you may have just said it best , I believe that’s been everybody’s point . ( imperfect, limited, permanent, human , no law fixes ) and you propose taking people’s property and or locking them up without allowing the person to challenge your assertions, with that much certainty on your side ? That is the very thing. The bill of rights in the constitution is designed to prevent.

will not respond to , well they could use knives, bulldozers or poison gas" stuff either because the issue is about guns.

OMG , No it’s not ! It’s about how you raise your children and mental health . Just like drunk driving deaths are not about the car ! The one thing I agree with you so far is not wanting to respond anymore :-(