NY Red Flag law unconstitutional

[zukiphile]

If your idea iof a good RFL is one that will

Use narrow definitions of “dangerousness” that are based on objective criteria and that don’t treat factors such as lawful firearm ownership or political affiliation as presumptively suspicious;

Be temporary in nature, limited only to the period of time the person remains a danger to himself or others, and provide for the prompt restoration of firearms and corresponding rights when the danger no longer exists;

Afford strong due process protections, including burdens of proof (i.e., “clear and convincing evidence”), cross-examination rights, and the right to counsel.

Provide meaningful remedies for those who are maliciously and falsely accused, and expunge any records of petitions that are not granted;

...then you've substantively come to 44 AMP's position that,

You keep asking "how do we write a better red flag law?" What I'm getting from that is "can we? and "how do we do it if we can?"

What I'm not getting is "should we?"

I don't think we should.

Emphasis added. The heart of what is sold as RFLs are shortcuts around the safeguards listed in TG's list.

 

[44 AMP]

We know what's broke. Nuts are getting guns and shooting up public places like schools.

We have always had "nuts" We have always had guns. We have always had schools. We have not always had the problem with mass shootings (anywhere) that we are having today. Therefore, I posit that today's intensity of violence is the result of something else being "broke".

What that might be (and it may, by no means be one single thing) makes for fascinating discussion, but isn't om topic in this forum.

Federal law currently prohibits individuals from possessing firearms if they have been convicted of a felony or domestic-violence misdemeanor, have an active restraining order against them, or have been committed to a mental health institution.

Unless it is a Federal restraining order (does that even exist?) I don't think Federal law applies since State law already covers firearm possession under restraining orders which are State issued orders.

And, Fed law restricts firearms possession when involuntarily committed to a mental health institution. (the 72hr evaluation "hold" doesn't count) Someone who voluntarily checks into a mental health institution is not barred from firearms possession after they check out.

(If they were diagnosed as dangerous, they would not be allowed to check out and so their commitment would become involuntary and the law would then apply)

To be unobjectionable, red flag laws should, among other considerations:

I do not disagree with your list of things the law ought to have, but I would point out that I think it is a fallacy to use the same name "red flag" as it taints the idea with the flaws that are the red flag laws we have today.

"New and improved red flag law" wouldn't be a good idea, either. IMHO.

The problem is that very few mass public shooters have disqualifying criminal convictions or mental health histories that prevent them from legally purchasing firearms, even though they often display many signs of being a serious risk of danger to themselves or others.

This is absolutely a serious problem, for enforcement in particular, since until some law is broken, these people are not guilty of any crime, and have EXACTLY the same rights and legal protections as everyone else.

Being labeled a "nut" even a creepy, scary potentially dangerous nut is a judgement call. And under our legal system, only the courts are allowed to make that call. Not you, not I, not neighbors, family or co workers, or someone on the internet reading what someone writes there.

Taking people's opinions into account is certainly prudent, but acting on those opinions alone is not.

 

[Tennessee Gentleman]

...then you've substantively come to 44 AMP's position that,

I've explained why current laws fall short (please reread post #92) and you agreed when you said:

We've arguably had a swing to the other extreme now with the mentally ill composing a big part of urban homelessness.

You refute yourself. LOL

We need new laws to put away "some" of the homeless out there as well. But RFL is less extreme.

We have not always had the problem with mass shootings (anywhere) that we are having today.

Thus no need for RFLs in those days just for those extremely impaired types as our culture was different.

As I mentioned before. Shooting up public places especially schools due to grievance about the world not being what they want is the zeitgeist of crazytown these days. Hence the need for different tools.

Taking people's opinions into account is certainly prudent, but acting on those opinions alone is not.

Which the RFL should not do but we can still take away guns temporarily from a nut with a hearing which is more than just a neighbors opinion.

 

[Tom Servo]

as our culture was different.

Bingo.

Something in our software has gone awry. Approaching it like a hardware problem isn't going to do anything to mitigate it. We have to ask ourselves what went wrong over the last two decades and take a hard look in the mirror.

(Consider other countries that have high gun ownership rates. They don't have this problem. It's ours as a culture.)

Of course, we lack the chutzpah to do that. It's hard. So we'll waste our time and effort on stuff like gun bans and red-flag laws because politicians can tell their base they're doing something.

This is going to take a whole-of-society approach to fix. It's probably going to involve a reconsideration of social media and its role in our lives.

 

[zukiphile]

We've arguably had a swing to the other extreme now with the mentally ill composing a big part of urban homelessness.

You refute yourself. LOL

We need new laws to put away "some" of the homeless out there as well. But RFL is less extreme.

I'll not guess what you've misconstrued to come to a conclusion that I "refute [my]self", but at least you got to type "LOL".

RFLs aren't psychiatric health plans.

...then you've substantively come to 44 AMP's position that,

I've explained why current laws fall short (please reread post #92) and you agreed when you said:

You've misunderstood. Postwar disregard for the rights of psychiatric patients, a policy decision to de-institutionalize a large population psychiatric patients, and laws that deny people their rights without due process are substantially different issues. That the first two topics bear on how many people are institutionalized doesn't mean that denying due process in RFL hearings is a corrective for a general policy of de-institutionlization of psychiatric patients.

I've re-read your post #92. The traits of the law you say you'd like aren't the traits of a RFL. You concur with 44 AMP in his conclusion that we shouldn't have RFLs.

 

[Aguila Blanca]

TG, in response you've posted a list of results, but not how they would be implemented. If all of your results are embedded in legislation, the result is no RFL of any kind as that term is currently used.

I was going to make the same observation. Listing a bunch of hoped-for results is not at all the same thing as drafting specific language that accomplishes those hoped-for results.

Studies of red flag laws in Connecticut and Maryland show that in a significant percentage of cases, petitions are either not granted in the first place, or petitions that were initially granted are rescinded upon further review, and the person’s firearms are returned.

It's ironic that you chose Connecticut as an example. I know of at least two cases in Connecticut, dating to before their red flag law was enacted, in which male spouses were under protective orders that barred them from possessing firearms. In both cases, the male spouses nonetheless obtained firearms and murdered their soon-to-be ex-wives in public venues.

Those are just two examples that give the lie to the promise/premise the red flag laws will magically make everyone safe, so we should all rejoice at the curtailment of constitutional rights that red flag laws represent.

 

[Tennessee Gentleman]

You've misunderstood.

I understood completely. You opined (correctly) that the crazy laws are messed up and far too lenient so that we have too many crazies (homeless) running around. I agree and add that we have too many nuts with guns running around as well. Therefore, we need a tool to get those guns away from those nuts.

I've re-read your post #92. The traits of the law you say you'd like aren't the traits of a RFL. You concur with 44 AMP in his conclusion that we shouldn't have RFLs.

Now YOU misunderstand. What I mentioned are not the traits of some RFLs NOW, but they could be modified. The RFL that I imagine would be the tool to fix the crazy/insanity procedures that you already pointed out as deficient in your post earlier. I think I'm bringing you along here. Oh, and LOL!

 

[Tennessee Gentleman]

Something in our software has gone awry. Approaching it like a hardware problem isn't going to do anything to mitigate it.

We ain't going back Tom. Sorry, no more Father Knows Best.

Until we get better control on nuts, hardware will have to be addressed as well. For the nuts that is.

People like this friend of the Las Vegas shooter that I posted before will need to be aware of RFLs and rather than write letters to the nut not to kill folk rather turn them in and get their guns away from them till they can get on their meds or therapy.

 

[Tennessee Gentleman]

Listing a bunch of hoped-for results is not at all the same thing as drafting specific language that accomplishes those hoped-for results.

Did you read what they found out on the Las Vegas shooter that I posted to you(Post #97)? I bet an RFL would have helped.

 

[44 AMP]

Did you read what they found out on the Las Vegas shooter that I posted to you(Post #97)? I bet an RFL would have helped.

Nixon told CNN he never conveyed his concerns about Paddock to authorities because “he didn’t know [Paddock] was going to do anything” and “couldn’t read [Paddock’s] mind.”

If this is true, RFL would not have made any difference at all,
He would not have used it.

 

[zukiphile]

TG, I'm chasing this down because I think it's illustrative of your approach here to RFLs.

You've misunderstood.

I understood completely. You opined (correctly) that the crazy laws are messed up and far too lenient so that we have too many crazies (homeless) running around.

No, that wasn't what I had opined. You've not distinguished between the due process problems in in patient psychiatric care in the 1950s and 1960s, and a policy shift to de-institutionalize a population in the 1980s, but conflate them as different settings on "the crazy laws. Despite missing this a couple of times, you express your confidence that you "understood completely".

Your posture on this tracks with your resistance to information about how criminal law and guardianship function to restrict people.

I've re-read your post #92. The traits of the law you say you'd like aren't the traits of a RFL. You concur with 44 AMP in his conclusion that we shouldn't have RFLs.

Now YOU misunderstand. What I mentioned are not the traits of some RFLs NOW, ...

Repeating what I've just asserted does not suggest that I've misunderstood your text.

... but they could be modified.

A law so modified isn't an RFL. That's why your current position is substantively indistinguishable from 44 AMP's.

The RFL that I imagine would be the tool to fix the crazy/insanity procedures that you already pointed out as deficient in your post earlier.

Where you've manifested a misunderstanding of incompetency hearings or the issue of psychiatric treatment (which are not the same issue), your speculation about what would fix them is unlikely to persuade.

TG, in response you've posted a list of results, but not how they would be implemented. If all of your results are embedded in legislation, the result is no RFL of any kind as that term is currently used.

I was going to make the same observation. Listing a bunch of hoped-for results is not at all the same thing as drafting specific language that accomplishes those hoped-for results.

There's a problem with TG's framing.

First, he is repeatedly invoking "but for" causation, then speculating that but for an element an RFL might have prevented, a murder would be avoided. In cruder form, this is the sort of reasoning supports magazine capacity limits. He couldn't have fired so much if he'd only had a five round magazine!

Secondly, he asks what might be changed, but it turns out that everything that makes an RFL an RFL needs to be changed. That's a rejection of the underlying concept of pre-criming people.

Finally, there's the tenor of responses. A person could misunderstand that you are asking what specific measures should be enacted. When that's pointed out, to fail to respond substantively in a second entirely different way looks intentionally evasive.

 

[Tennessee Gentleman]

If this is true, RFL would not have made any difference at all,
He would not have used it.

Oh, that's probably a good bit of hindsight rationalization on his part for not doing the right thing. He wants to avoid criticism for staying silent. I get that.

Point is, there was no tool available then for him to use to really deal with it. The guy had made no specific threats and he wasn't crazy enough outwardly to get him committed under laws in place then and with the great difficulty of doing it (as zukiphile has pointed out) he didn't undertake it. The authorities couldn't really do anything so his telling them would have just pissed off his friend with no action taken.

So, really we don't know whether he would have used it or not but that isn't the point. Whether people will obey or use laws should not the criteria for making them.

You know, I don't post on here too much, mostly on the road. Also, this is a pretty solid ideological silo and has a lot of mental orthodoxy (other than arguing .45 vs 9mm) so it gets tedious.

However, from time to time it is interesting to pick a topic and ask some questions.

What is interesting in this case is that you and zukiphile (who I sometimes agree with) really make my case for me and you can't see it.

It's kind of amusing. You have admitted that there is something out there in crazy world that is causing these mass shootings which begs the question of what tools would be effective stopping them. You even talked about how RFLs would walk the line and that you would not oppose a law that included due process.

zukiphile has conceded that that the crazy laws and policies are too loose today as a reaction to them being too severe in the past and so they are inadequate (homeless people)

BUT, when guns are brought up and those admissions you guys have made are combined with an idea that was first suggested by "them" then up go the ideological walls and its "hell no we won't go". Human nature is funny.

The RFL as I described earlier has legs, meaning it is not going away. I really think you guys know that too. You know there will be tipping points on these shootings and the body politic will respond. Actually, in many states they already have (including VERY gun friendly ones like mine)

Now, I realize that lawmakers prolly ain't coming here to read about how to craft these laws. But I really think if tools are going to be made to address gun violence that our community should be a part of it. That is NOT a traitorous compromise but merely a way to look at and perhaps solve a problem? You know, "vote and the choice is yours, don't vote and the choice is theirs". Keep in mind that demographics are changing and the Gen Z crowd may not be online with TFL.

Let's get back to what could be done as we know and have conceded that status quo ain't gonna stand.

 

[Tennessee Gentleman]

TG, I'm chasing this down because I think it's illustrative of your approach here to RFLs.

I know, it's fine. I'm not going to answer some of your points as I don't think they are relevant so don't get mad at that please. Same with others who post poems and cliques like "What don't you not understand about shall not be infringed!"

No, that wasn't what I had opined. You've not distinguished between the due process problems in in patient psychiatric care in the 1950s and 1960s, and a policy shift to de-institutionalize a population in the 1980s, but conflate them as different settings on "the crazy laws.

It was the changes in such laws that deinstitutionalized all the nuts. One follows the other. Law drives policy. Again, you make my point

A law so modified isn't an RFL. That's why your current position is substantively indistinguishable from 44 AMP's.

Yes it is. RFL is just a name. You are conflating the way they've been crafted in some states (with no input from our community) with what they could be with our input.

AMP 44 and I agree that due process should be a part of it and I have described such. However, he admits that there is something different going on today in crazy world and so do you (homeless) that was not around 60 years ago but then are blinded by ideology on what to do about it as "they" first offered it as a solution.

but it turns out that everything that makes an RFL an RFL needs to be changed.

Again just a name. We can define it or "they" can.

That's a rejection of the underlying concept of pre-criming people.

Did you like that movie! LOL.

No, it's just a tool to deal with the rather recent meme of nuts with guns shooting up places.

 

[zukiphile]

I'm not going to answer some of your points as I don't think they are relevant...

Not intuiting what is relevant is one of the problems with your approach.

It was the changes in such laws that deinstitutionalized all the nuts. One follows the other. Law drives policy. Again, you make my point.

No, I don't. The changes in the 1980s weren't due process shifts.

If you don't understand the point, pretending it's a different one doesn't help your position.

Yes it is. RFL is just a name. You are conflating the way they've been crafted in some states (with no input from our community) with what they could be with our input.

That is incorrect, "RFL" is also a description. RFLs describe laws that have been enacted and have a common set of traits. There is no way for you to be a part of a reasonable discussion of RFLs where you dispute their substance.

Other than you, no one has conflated what an RFL is with your amorphous wish about what other laws might be.

AMP 44 and I agree that due process should be a part of it and I have described such. However, he admits that there is something different going on today in crazy world....

Your use of "However" indicates that you think that more people you dismiss as "nuts" or "crazy" somehow negates a need for due process.

That's an error.

...then are blinded by ideology on what to do about it as "they" first offered it as a solution.

You should refrain from thinking you know why other people think as they do when you have this much trouble determining what other people think.

A commitment to due process isn't just a gun control issue. Fidelity to constitutional text and process isn't an ad hoc polemic tool deployed against people on another team who got to a good idea first.

Quite a few gun owners are fans of RFLs because the venn diagram of gun owners and people who understand and value constitutional protections has only partial overlap.

Your attribution of motive is simple and incorrect.

zukiphile has conceded that that the crazy laws and policies are too loose today as a reaction to them being too severe in the past and so they are inadequate (homeless people)

No, that isn't what I asserted. That you wrote it after being corrected indicates a problem. The benign explanation is that you've hit a cognitive limit. The other possibility is worse.

 

[44 AMP]

Whether people will obey or use laws should not the criteria for making them.

44 AMP disagrees with this, on principle. An old and sound leadership principle, "Never give an order you know will not be obeyed".

Whether or not people will use or obey a law should not be the sole criteria used when crafting a law, but is should be one of the things that must be considered.

We are not in dispute that there could be better "tools" (laws) to use to try and reduce the problem of people shooting people because they feel like it.

What we are chasing around is what a better tool would be, and how should it be made, and used.

You can drive a nail with a rock. A hammer is better. A sledge hammer can do it, though its not the most efficient tool for that. Sometimes you can tighten or remove a screw with a butter knife. Sometimes, nothing but a purpose built screwdriver will work.

But before you can do any of that, in order for there to be any possibility of it working, you have to correctly identify where the nail has to go, or which screw is the loose one.

Remember where this thread started. A Red Flag law was ruled unconstitutional because it did not meet the requirements of due process.

Therefore, including due process (which meets Constitutional standards) is a minimum requirement to any new law, otherwise its a waste of effort, and potentially harmful.

and, just for the record, I don't care if it was my side or their side who came up with a the idea. I judge the idea on its own merits or lack of same.

I think RFLs as we currently have them, and use them are a bad idea.

Come up with your trial balloon, I'll do my best to play flak gunner. If I can't shoot holes in it, you MIGHT have something worth pursuing.

 

[Tennessee Gentleman]

44 AMP disagrees with this, on principle. An old and sound leadership principle, "Never give an order you know will not be obeyed".

Really? I know you don't believe that silliness. Murder? Theft? C'mon man.

We are not in dispute that there could be better "tools" (laws) to use to try and reduce the problem of people shooting people because they feel like it.

I know we agree.

Come up with your trial balloon, I'll do my best to play flak gunner. If I can't shoot holes in it, you MIGHT have something worth pursuing.

Already did. Your turn.

 

[Aguila Blanca]

Come up with your trial balloon, I'll do my best to play flak gunner. If I can't shoot holes in it, you MIGHT have something worth pursuing.

Already did. Your turn.

No, you didn't. You posted a list of criteria that you think an acceptable law might address, but you didn't draft anything in actual legalese. At least two of us have asked you for your proposed law, and so far you haven't done anything other than offer a wish list.

 

[44 AMP]

Really? I know you don't believe that silliness. Murder? Theft? C'mon man.

C'mon man yourself, of course I believe in "that silliness". Murder, Theft, things like that are orders (laws) it is expected that people would obey.

A law requiring the seizure of assets from everyone from Tennessee who might be able to type with their left hand, is one I would expect few (if any) people to obey or make use of.

How ridiculous do you want to get? The point of "never give an order you know won't be obeyed" is that if you know it won't be obeyed, its because its wrong, or a bad law, and so going ahead and issuing the order is not only pointless, it damages the people's respect for the issuing agent, and for law in general.

Did you not see that point?

 

[Metal god]

Lmao , I can’t believe you guys are still at it . NO ! He does not get any of your / My / our points . That’s why you all are still beating this dead horse.

As far I can tell this is not a good faith debate on TG part . I don’t know if it’s always been that way or if at some point it changed but it appears one is only waiting to talk rather then listen then talk

 

[Tennessee Gentleman]

but you didn't draft anything in actual legalese.

Since I ain't no lawyer then that is as good as you get. Waiting for yours and 44 AMP's.