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Red Flag

USA Today is running an op-ed from Michael Hammond, Chief Counsel for GOA (oops, didn’t notice this was a year old).

But there’s a larger issue: If the Constitution can be suspended in a secret hearing, where does this lead? 

What if this newspaper could be shut down for 21 days without due process — based on a secret complaint? Or an individual could be arrested or imprisoned for 21 days? Or tortured?

I was reading NJ AG Gurbir Grewal’s directive to law enforcement about enforcement of New Jersey’s ERPO. I don’t even like the idea of the police walking out of someone’s house with a sharp pencil with this kind of due process. Guns aside, if the state wishes to seize my property, I have a right to due process. I shouldn’t be able to lose property just because the police think I’m an asshole.

And don’t give me “the police have to have probable cause to … blah blah blah.” We all know there’s a gulf between what things ideally should be and how they work in practice. “Upon arriving at the scene, based upon my training, knowledge and experience, I determined that Mr. Smith was a danger to himself and his family,” will be to red flag laws what, ​”I smelled marijuana coming from the car,” is for traffic stops.

20 Responses to “Red Flag”

  1. Andy B. says:

    “. . .there’s a gulf between what things ideally should be and how they work in practice.”

    That’s what no one ever seems able to get their head around. Law only works in one direction, usually.

    I’ll remind of my recent Old Story about being bad-mouthed for predicting that the plain-English ban on the Pennsylvania State Police maintaining a handgun registry would never be enforced, when the NRA was endorsing gun control in PA back in 1995.

    Another dimension is that when the police complain loud and long enough about something, legislators will give them the loopholes they need to get around almost any civil liberty — and law-and-order advocates will help. (Cough-Crimestrike)

    Some years back PA cops got sick of their convictions based on illegal street searches being overturned. The PA General Assembly accommodated them by making a handful of summary offenses (like “obstructing traffic” = walking in /crossing the street) into custodial offenses, meaning you can be placed under arrest for them. Courts had long held that cops were permitted to search people being placed under arrest, for the cops’ safety, and anything found in the search could be used as evidence in court, even if there had been no relevant justification for the search. So now if cops don’t like your looks, or regard you as a usual suspect for any reason, they can stop you on the street, arrest you for one of the loophole summary offenses, and search you for evidence of any other crime.

    AG Mike Fisher had promoted legislation that would have effectively repealed Pennsylvania’s equivalent to the Fourth Amendment, but it failed, thanks to resistance from both the ACLU and dissident PA gun activists. I was present at the meeting in Harrisburg where Tanya Mataksa later presented Fisher with the NRA’s “Defender of Justice” award, that would later be used to promote his campaign for governor. (Actually we boycotted the presentation portion of the meeting, but stuck around for the rest.)

  2. aerodawg says:

    “probable cause” is a license for the police to do WTF ever they want….

    I’ve said before if you have evidence someone is a danger to others, we already have all the tools necessary to take them before a court, with due process, and have them dealt with….

  3. Brad says:

    Red Flag laws have already killed at least one person in Maryland.

    I’ve yet to see any followup story about the November 2018 killing of Gary J. Willis, age 60, who was shot and killed on his own doorstep in the early morning hours, by police enforcing a Red Flag. I’ve never even seen a picture posted of the victim.

    https://www.theepochtimes.com/man-killed-by-police-during-attempted-gun-confiscation-in-maryland_2714962.html

  4. dwb says:

    Until the Supreme Court enforces the 2A as an enumerated right equal with the others, this is about as good as it gets. In fact in NJ and NY where they do not recognize any rights, they treat gun ownership as a privilege that the state can lease to citizens, this might be even better than we can hope.

    Protection From Abuse orders are widely abused, ask any divorce attorney. They are often used by people angry and looking for any advantage in custody/divorce, or simply revenge. I expect the same here.

    • Fyooz says:

      I could see somebody who smells a divorce (and PFA order) coming, and petitioning the Court for an ERPO on the divorcing party before it gets to Court.

      I think at least one abused spouse will be disarmed and murdered because of a tactically-placed ERPO.

  5. Skinnedknuckles says:

    We’ve seen how “fair” the implementation of Civil Asset Forfeitures has been. Exactly the same suspension of the Constitution as ERPO’s and will be misused just the same way. Be very afraid! Sadly the courts have upheld CAF as they have ERPO’s.

  6. Alien says:

    It’s frequently been said that law is a one-way ratchet benefitting government to the detriment of citizens. I find it difficult to contest that statement.

    What concerns me is the persistent ratcheting toward what might be a very reduced set of corrective options.

  7. Joe says:

    The Gun Rights Community has pretty much lost “Rank and File” Cops.

    These Red Flag Laws enable the armed workers of The State to Petition themselves to strip you of your Rights………let that sink in.

    • Fyooz says:

      not sure there’s incentive for them to go making dynamic entries on known armed people.
      they already don’t like domestic violence calls, and ERPOs promise to be exponentially more lethal to them than DVs.

      • Andy B. says:

        “they already don’t like domestic violence calls, and ERPOs promise to be exponentially more lethal to them than DVs.”

        Naturally I have an Old Story to go with that. :-)

        When I was a kid we had our own rifle ranges — right out the back door, and a longer-range one with a benchrest, about a 1/4 mile away. We did a lot of shooting.

        When I was about high school age, my crowd of friends were a bunch of guys who were no better than late-teen boys ought to be.

        One time the police wanted to question me about some goings-on. A friend who was already in custody overheard the following conversation:

        One detective said to the other “You better go pick up B. for questioning.” The other said “Why don’t you go pick him up?” The first said, “I know — let’s send a patrolman to pick him up.” When they flagged a patrolman who was passing through the office, he declined and said “I know — why don’t we just send a plain-clothesman he won’t recognize, and have him ask him to stop in?”

        Which they did, and I did, and then went home. I’ve always thought of that as an example of “An armed society is a polite society.”

        In those days the NRA required an LEO or military officer to endorse new memberships, so when I was 18 and wanted to join, I used one of those detectives as my endorser; they hoped to befriend me on the odd chance I might someday rat out my friends about some petty mischief. Think “community policing.”

    • Mike V says:

      The brass maybe but not the rank and file, at least in most state. They’re gun owners too.

  8. Bram says:

    Own a gun and lose all your Constitutional Rights. The opposite of how it was designed.

    • Joe says:

      Essentially making all of our Rights nothing more than a fixed non-combinable set of Privileges that the Government can revoke whenever it wants…….Just like in…….Australia.

      Isn’t “Democratic Socialism”/”Social Democracy” wonderful?

    • Andy B. says:

      “Own a gun and lose all your Constitutional Rights. The opposite of how it was designed.”

      That principle is as American as apple pie. Plug in almost any civil liberty, and you’ll find as example in our history.

      Plug in “Exercise freedom of speech” for “own a gun” and think about how many people were imprisoned or deported for practicing it, during and immediately after WWI.

  9. Lance Lot Link says:

    One thing that seems nobody has noticed yet is there is no requirement that the person being red flagged actually has a gun.

    Imagine the hilarity that will occur when the cops show up at 4 AM with guns drawn, on a non gun owner being told to hand over his or her guns.

  10. Will says:

    Have a nice and/or large gun collection, and live in a state that already has de facto registration?

    Want to bet that someone who has access to that list isn’t salivating over having his buddies go collect it for him to cherry-pick it?

    Think you’ll ever get some/all back, providing that you survive the collection process, and the lack of protection for however many years it takes to retrieve them? Will they look similar to the Katrina guns at that point?

    Want to bet there won’t be associated legal, social, and business/employment problems generated by having a RF order hit?

    Want to bet that more people die in botched RF collections, on both sides?

  11. Chris says:

    I like how “recently acquired firearms” establishes cause for a Red Flag in NJ.

    Exercising your rights is apparently cause for their revocation. It’s like saying that you have freedom of religion, unless you actually go to a church.

  12. Alpheus says:

    Sean Sorrentino made a good point in a recent “Assorted Calibers Podcast” that, strictly speaking, Red Flag Laws *are* due process, and will more than likely will hold up in court. Cynically, I think he’s probably right.

    Having said that, the *stupidest* thing about this law is: hey, this guy *might* be dangerous. Let’s go take all his guns! And now that we have him, he’s free to do whatever.

    If the guy’s so dangerous, what’s to stop him from going to his kitchen drawers now, to get himself a knife? Or get in his car and run people over? Or go to the gas station and get himself a can of gasoline and some matches? Or to pull out his bat from the closet? Or he pulls out a pistol from his night stand, because the police only thought to empty his gun safe?

    If he’s not dangerous, then he should keep his guns. If he *is* dangerous, he’s going to be dangerous, even without guns.

    Having said that, I am deeply annoyed that “due process” has been watered down to the point where even Red Flag laws qualify — and I am distressed by how readily law makers and judges are willing to trample on our rights, regardless of how stupid such a law might be.

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