Article from Reason by Jacob Sullum.
When President Donald Trump endorsed “red flag laws” on Monday, he described them as providing “rapid due process” to people accused of posing a threat to themselves or others before suspending their Second Amendment rights. Sen. Lindsey Graham (R–S.C.), who plans to introduce a bill aimed at encouraging more states to enact such laws, says they should provide “robust due process.” But as I note in my column today, due process is neither rapid nor robust under most existing red flag laws, which 17 states and the District of Columbia have enacted. There is little reason to think the situation will improve as more states rush to do something about mass shootings.
Testifying before the Senate Judiciary Committee last March, David Kopel, a gun policy expert at the Independence Institute in Denver, emphasized the importance of procedural safeguards aimed at protecting the constitutional rights of respondents in gun confiscation cases. Kopel’s recommendations include requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders (which are issued without an adversarial process) only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, letting them sue people who file false and malicious petitions, and giving them advance notice of confiscation orders. Here are some of the ways existing laws fall short of those criteria.
Who can file a petition?
According to a handy summary prepared by the Giffords Law Center to Prevent Gun Violence, just five states (Connecticut, Florida, Indiana, Rhode Island, and Vermont) require that petitions come from police officers or prosecutors. In the other 12 states and D.C., lots of other potentially aggrieved (or well-meaning but mistaken) people, such as blood relatives, in-laws, current and former cohabitants, current and former intimates, physicians, and mental health specialists, can also file petitions. A pending California bill would add employers, co-workers, and school personnel to that state’s already lengthy list of potential petitioners.
When are ex parte orders allowed?
Every state and D.C. allow judges to issue gun confiscation orders without giving the respondent a chance to rebut the claims against him. In some states, the standard for such ex parte orders is minimal. New York requires “probable cause” to believe the respondent is “likely to cause serious harm” to himself or others. Other states are stricter. Vermont requires showing by “a preponderance of the evidence” that the respondent poses “an immediate and extreme risk.”
Read the entire article at Reason.
Image Credit: Jim Greenhill from McLean, USA [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)]
