No. Go ahead. Mr. President, Jon Miltimore, who writes for the Foundation for Economics and Education writes: Red flag laws don't involve precogs seeing into the future. Yet, like precrime, they are designed to prevent a crime before it…
No. Go ahead.
Mr. President, Jon Miltimore, who writes for the Foundation for Economics and Education writes:
Red flag laws don't involve precogs seeing into the future.
Yet, like precrime, they are designed to prevent a crime
before it happens, even if it means violating civil rights in
the process.
Miltimore asks several important questions: Can people who are flagged as threats be involuntarily committed? Are they appointed legal counsel? Will a Federal database be established to track flagged citizens?
These are questions that civil libertarians should be asking, especially since many people who are red-flagged will have committed no crime.
There will simply be, like Philip Dick's ``Anderton,'' people who might commit or might be a danger to someone. Miltimore reminds us that the idea of precrime didn't originate with ``The Minority Report.'' In ``1984,'' Orwell writes that Big Brother's ``endless purges, arrests, tortures, imprisonments, and vaporizations'' are not the result of people breaking laws, for there are no laws in Oceania. These punishments, readers learn, are merely the wiping out of persons who perhaps might commit a crime at some time in the future.
Red flag laws are well-intentioned. Everyone is searching for a way to prevent the senseless massacres of school mass shootings.
I think accessing the violent criminal records of juveniles is a reasonable way to try to prevent these killings. Though, really, most States have already laws on the books that criminalize threats of violence. The problem isn't a lack of laws to stop these killers, it is a lack of persistent application of existing laws.
The shooters at Parkland and Buffalo both committed criminal threats in advance of their killing sprees, and yet law enforcement did not vigilantly prosecute them. Instead of seeking to enforce existing laws, States have, one after another, instituted red flag laws to use gun confiscation orders to try to predict crime in advance.
The problem comes in trying to create such laws and still protect the constitutional right to bear arms for the innocent.
Basic aspects of the Constitution should not be abandoned, such as the right to confront your accuser. Some red flag laws allow anonymous accusers to initiate a gun confiscation order.
That is not just, and that is not constitutional.
We should not abandon the right to legal counsel, the right to confront the evidence. Many State red flag laws allow gun confiscation orders without the defendant even knowing they have been accused of anything. Many State red flag laws allow guns to be confiscated without hearing evidence from both sides.
Jacob Sullum, in Reason, writes of Colorado's red flag law that the standard of proof for the initial gun confiscation order when the accused does not have an opportunity to respond--see, for the initial order, the accused is not present or doesn't need to be present, and the evidence comes from one side. But the standard that is used is called the preponderance of the evidence, meaning the standard used is that the accused is more likely than not to pose a significant risk.
Historically, gun rights were only removed when the defendant was convicted of a crime using a constitutional standard of ``beyond a reasonable doubt.''
As Philip Mulivor writes at PJ Media:
Because ``reasonable doubt'' has been long established as
the standard of proof for criminal cases, it must naturally
apply to judicial proceedings in which an individual, who has
not even been charged with a crime, can be stripped of a
constitutional right. Nevertheless, red-flag laws often rely
on ``a preponderance of the evidence,'' a radically
diminished standard of proof. This, above all other
injuries--
According to Philip Mulivor--
to due process, offends our system of liberty and [a] fair
trial.
Colorado's red flag law, as well as many other States', confiscates guns using a less-than-constitutional standard.
Using a preponderance-of-evidence standard, which is a standard lower than the Constitution uses for criminal cases, allows a gun confiscation order when a judge decides that it is a better than 50-50 chance of a person being a ``significant risk.''
Think about that. It is a little better than 50-50 that the person who has come before me, whom I have heard evidence only from the person who doesn't like that person--it is 50-50, maybe it is 51-49, but I am going to take away a constitutional right, whereas in a court proceeding where you are convicted of a crime, where you lose your gun rights because of a felony, the standard is beyond a reasonable doubt.
In practice, the other problem with the red flag laws is that judges will be inclined to err on the side of caution. When the only evidence comes from someone who believes the respondent poses a threat, judges will rarely, if ever, decline to issue a temporary gun confiscation order.
One might ask if our laws should allow the abridgement of a constitutional right when only one side of the evidence is presented. Imagine if the proceeding is a complaint filed by an unhappy spouse in the midst of a divorce. Most cases of divorce involve one side cheating or at least one side lying. It is exceedingly difficult to ascertain the truth in a divorce proceeding even when both sides are heard. One can just imagine what mischief might occur if divorce proceedings only allowed testimony from one side.
If you think red flag laws will be easy to adjudicate, just imagine the case involving Johnny Depp and Amber Heard.
As Sullum points out, there is--from the judge's point of view, ``The possible downside of rejecting a petition''--a serious downside--``the death of a respondent or someone else--will weigh
heavily on the judge's mind, while the temporary deprivation of the subject's constitutional rights will seem trivial by comparison.''
The presumption will be, if the temporary order, where you only heard evidence from one side, was granted, that the judge is taking a real risk by overturning or not granting the permanent order when evidence is actually heard on both sides.
So you begin with a temporary order--it is ex parte; you don't have legal counsel; evidence is only heard from one side--but then you get to the next stage and you say: Well, the person gets justice later. They are going to get a lawyer. There will be a proceeding. There will be due process at a later date.
Yet the cards are stacked because think of the perspective of the judge, think of the predicament of the judge. He now has before him an emergency order that says this person is a dangerous person. For him or her to rule otherwise, they are taking a big risk because the first judge or the first ruling said this person is dangerous. Now the judge has to say and has to somehow attest and prove and live with themselves that he is now attesting this person is not a danger.
But the first hearing was only one side of the evidence. The first hearing may have been an aggrieved party in a divorce. It may have been an unhappy person who doesn't like you at work. It may have been someone who doesn't like your political views and is reading online and says, that so-and-so had a picture of a gun, or that so-and-so made some sort of violent innuendo. Read Twitter. Find out how much of that is going on. There is a danger to this.
It is not that anyone is downplaying the sad, awful nature of these massacres and that we don't want to stop them, but we should do it in a fashion consistent with the Constitution.
With the red flag law, the initial hearing has evidence only from those who accuse you of something. That cannot be justice. The bedrock aspect of justice in our country is that you get legal counsel, that there is a debate back and forth.
Go to family court--and you think some of this won't originate from family court? You think there is not going to be an angry spouse who says: My husband cheated on me. My husband is a hunter. I am going to accuse him of something so I can get his guns taken away from him.
You have to hear both sides. How could you only hear from the angry spouse? In divorce, we don't hear from one side. How could we have a hearing where you take away an amendment--or take away a constitutional right from the Bill of Rights without hearing evidence on both sides?
You say: Well, we will hear it at the second hearing 14 days later.
The problem with the second hearing is you now have a judge who feels the incumbent pressure of not changing an initial ruling, a feeling of, well, we have already decided this person is a threat, and now I have to take the responsibility of guaranteeing they are not a threat.
See, if you had the jurisprudence, if you had the due process in the first hearing, then you wouldn't have to worry so much about it being fair in the second hearing. If you have time to go before a judge, I see no reason why you don't have time to have your attorney present. They have time enough to have a hearing. They have time enough to hear the person accusing you. Shouldn't they have time enough to have someone defending you?
In Colorado, a temporary gun confiscation order lasts for about 14 days, at which point the judge has to schedule a hearing where the accused finally has a chance to challenge the claims.
At this second proceeding, the legal standard is a little greater--at least in Colorado. It goes from preponderance or 50-50--slightly better than 50-50--it goes from a standard of that to a standard that is ``clear and convincing evidence.''
Under Colorado's red flag law, though, the first gun confiscation order needs to show imminent risk, but when you get to the second order, interestingly--the order that is going to last a year--you don't have to prove that the person is an imminent risk; all you have to say is that they might be a risk at some point in time. So we have lost sort of the imminence to it.
In 14 days, the imminence is gone, and now we have a proceeding where we are going to hear evidence on both sides, and you can have counsel-- not always guaranteed counsel, but you at least can have a lawyer present. In order to remove a gun confiscation order, though, and recover one's Second Amendment rights, the burden, though, is now placed on the accused.
So there is something that is very, very common and is throughout all of our jurisprudence: that you are innocent until proven guilty; the burden is on the government. But now, once you have gone through one of these gun-restraining orders, in order to get your rights back, you have to prove that you are not a risk. The burden is now on the accused to prove that either you are sane or that you are not a risk. It is proving a negative. If you never were a risk, how do you prove that you are no longer a risk? How do you prove you are the negative of something? How do you prove that you are not a risk? This turns typical jurisprudence on its head. Instead of innocent until proven guilty, the burden is for the accused to prove his or her innocence. This is the opposite of what our jurisprudence system was founded upon.
Sullum writes:
If the judge issues a [gun confiscation order], it lasts
for 364 days unless the subject seeks early termination and
shows by clear and convincing evidence that he [or she] does
not pose a significant risk.
Rhode Island's red flag law is similar, remaining in effect for about a year before the accused can challenge it.
For the accused to restore his Second Amendment rights, once again, the burden is on the accused to prove they are innocent.
The ACLU of Rhode Island asks an important question: How does one prove this negative, and how does one do it with such a high burden of proof? The ACLU concludes that in ending a gun confiscation order, ``the burden should be on the GOVERNMENT to prove by clear and convincing evidence that it should remain in effect, not on the accused to halt the continued imposition.''
This is the ACLU of Rhode Island saying the burden should be on the government the same way the burden is traditionally in any other court proceeding in our country. You don't have to prove you are innocent; the government must prove you are guilty.
If the government is going to take away your Second Amendment right, shouldn't the government have to prove that you are either a threat or that you are guilty of something?
Eagle County Sheriff James Van Beek notes that when the subject of a gun confiscation order tries to have it terminated, ``the burden of proof is not on the [government], as it is in every other legal case, but instead, is placed on the [accused] to prove that the accusations are wrong.''
Sheriff Van Beek explains that ``proving one's sanity could be very difficult, as it is highly subjective.'' But proof of one's sanity is not enough to remove a valid gun confiscation order since the accused can be a threat even if determined to be sane.
Van Beek also worries that ``if a person is truly in a mental crisis, this aggressive approach will create even greater stress, possibly resulting in a violent overreaction, as their personal property has been taken without a crime ever having been committed.''
In Maryland, this is precisely what happened. When police attempted to serve a gun confiscation order, a fight ensued. The person was startled by it. He had never heard there was a problem. They showed up at his house, and he ended up dying in the ensuing altercation.
When police seize guns from the subject of a gun confiscation order, Sheriff Van Beek notes, ``[t]here is no warning or ability to defend themselves against the charges.''
In addition, if troubled individuals understand that seeking care exposes them to the risk of a gun confiscation order, some may be inclined to avoid psychiatric help.
With the large universe of people who can initiate a gun confiscation complaint, from ex-girlfriends, to former roommates, to grandparents, to in-laws, to second cousins, Sullum concludes that ``the opportunities for malice or honest error are multiplied.''
In some ways, the process really is biased throughout because of the risk
aversion on the part of the judge. Once a gun confiscation order is issued and the accused has been labeled a threat, many judges will simply not want the responsibility of judging otherwise because of the deadly consequences if they are wrong.
Sullum concludes:
Given that bias, the indeterminacy of ``significant risk,''
and the difficulty of predicting [an accused's] behavior, it
seems inevitable that the vast majority of people who lose
their constitutional rights under this sort of law will [in
actuality] pose no real threat to themselves or others.
Philip Mulivor, writing at PJ Media on the constitutional deficiencies of gun confiscation orders, points out another deficiency. He says:
The Void-for-Vagueness Doctrine, a cornerstone of American
jurisprudence, requires laws to be written ``in a manner that
does not encourage arbitrary and discriminatory
enforcement.''
He goes on to say:
By forcing a judge to predict a person's future criminal
behavior in the absence of any violation of law, red-flag
statutes descend to the most disreputable level of
``arbitrary and discriminatory'' legislation.
Mulivor concludes that ``due process is always denied when a law fails to comport with the Vagueness Doctrine's imperative for clear and consistent standards.''
Fortunately, the Vagueness Doctrine--
This is also Mulivor's point--
is most likely to prevail when an ambiguous law threatens a
constitutional right, such as free speech or the right to
keep and bear arms.
The ACLU of Rhode Island has written perhaps one of the best reasoned critiques of red flag laws.
The ACLU of Rhode Island writes:
We are deeply concerned about [the red flag law's] breadth,
its impact on civil liberties, and the precedent it sets for
the use of coercive measures against individuals not because
they are alleged to have committed any crime, but because
somebody believes they might someday commit one.
The ACLU of Rhode Island writes that the court order authorized by this legislation would be issued without any indication that the person poses an imminent threat to others. The order would be issued without any evidence that the person ever committed, or has even threatened to commit, an act of violence with a firearm.
The ACLU continues: The Rhode Island red flag law--that the standard for seeking and issuing an order is so broad it could routinely be used against people who engage in overblown political rhetoric on social media.
Realize what we are talking about here. We are talking about red flag laws being used against people for overblown political rhetoric. If you have been on social media, that is 90 percent of what is on social media.
This is, once again, the ACLU of Rhode Island: Without the presence of counsel, individuals who have no intent to commit violent crimes could nonetheless unwittingly incriminate themselves regardless of lesser offenses because, when they are brought in without a lawyer, they can be questioned as to other things that could possibly be illegal.
``The heart of the legislation''--Rhode Island's gun confiscation orders--``requires speculation--on the part of both the petitioner''-- the accuser--``and judges--about an individual's risk of possible violence.''
Mulivor writes:
But psychiatry and the medical sciences have not succeeded
in this realm, and there is no basis for believing courts
will do any better.
He concludes that the potential impact on individuals subject to these gun confiscation orders involves much more than a long-term seizure of lawfully owned firearms.
This is once again from the Rhode Island ACLU. They point out that without a right to appointed counsel, respondents can be forced to submit to a mental health evaluation, be subject to fairly widespread notifications even before a court order has been used against them, face contempt proceedings and prison for failing to abide by any part of the order and unwittingly place themselves in danger.
So the Rhode Island red flag law actually requires that people be notified that you are a risk to them, that they are a potential victim, before the order is issued. So we are not talking just about the lack of due process in the sense that you don't have a lawyer there, you may not have been accused of a crime or informed that you might be potentially going to commit a crime, but, also, in advance of the judge even making the judgment, the police are told that if this accusation is being made, they must inform people.
So you have to imagine the innocent. We can all imagine the guilty. We say: Lock `em up. Take away their guns.
But imagine the innocent. Imagine someone who is innocent and he is in a divorce proceeding and his angry spouse calls up and says, He's a threat. They go, and even before the judge makes the court order, the judge and the police say: We must inform those who he might be a threat to.
What if that involves his business place? Are we going to inform his boss? Are we going to inform his friends? We are going to call all the schools in the area.
What if they are innocent? You haven't even heard the evidence that is only coming from one side. What if they are innocent? Can you imagine a person's life--entire life--being ruined? How do you ever get employment again? Do you think he could be fired if the boss has now been called by the police and they say: We have a gun order against this guy because we think he's a threat. He might be a threat to his fellow employees; he might be a threat to his wife; he might be a threat to schools. We are going to do this, and we are letting you know so you can be aware.
Who wants that person to work with them?
If you are doing a background check years later and they have had a gun confiscation order in their background, who ever wants to work with this person?
So you have to imagine what happens to the innocent. We can all imagine the terrible, horrible murdering psychopaths who committed these massacres and how we want them locked up, how we want to prevent the killings.
But you have to imagine when you have sweeping laws, what are the potential abuses of the law. You have to imagine what it would be like to be an innocent person accused of something in a divorce proceeding where it escalates and they ask for a gun confiscation order and it is based on malice and it is based on lies and deceit and anger over a broken marriage.
This can and will happen. It happens in family court every day. The difference between a divorce and a gun confiscation order is that in a divorce, if it is very messy, you hear both sides. In a gun confiscation order, the initial order to take away a gun, in almost every red flag law, involves only the judge and the accuser. Nobody believes that to be justice. It has never been justice.
I mean, when people point out the injustice of systems in legal systems, they go back to Venice, and they point out the doge. They had a lion's mouth, and you could put your complaint in the mouth, and it was anonymous, and they would make people walk the Bridge of Sighs to prison or to death.
That wasn't justice. We point that out as the height of injustice-- anonymous accusations, hearing only one side.
There are some people who argue that the bedrock of our jurisprudence is the adversarial process of the legal system. The adversarial process is: You get a lawyer, the other side gets a lawyer. And you know what? We go one step further in our system. The government has a lawyer. You have a lawyer. But you know what? The presumption is that you are innocent.
We start out with the presumption of the individual being innocent, and we add the hurdle to the government--the burden of proof that they must prove your guilt. And in the Constitution we say for a criminal offense, we must prove the guilt beyond a reasonable doubt. And yet we are talking about taking away fundamental constitutional rights with only hearing the evidence from one side and the standard would be a preponderance of the evidence.
What is a preponderance? It is 50-50. And if it is 51-49, we think the person may be a threat. But we have only heard from their spouse, and we didn't hear from them. We only heard from their estranged spouse or we only heard from the person who is angry with them from work or we heard only
from the person from the opposite political persuasion that read their writings on the internet.
We can see. We can all see the mischief for this.
So I wish, in the middle of this, in the middle of these tragedies, that we would think of what we could do.
New York has already got these red flag laws. New York has got lots of them. New York has got a lot of gun control, and yet the shooting happened in Buffalo.
But the kid in Buffalo had made a threat. It is a felony to make a threat to kill others. He could have been prosecuted.
So I fear, even with this law, if we don't pay attention to the laws we already have, if we don't persist and persevere in prosecuting these kids that show this danger--we already had--it is not that we just had the signals they might; they are committing crimes. Why don't we prosecute them? Why don't we use the laws on the books? But I would say that there is a big risk today to encouraging, across the country, jurisprudence where you don't have legal representation, where the adjudication is based on evidence only from one side, and then you finally get your day in court and you get your lawyer, and everybody is petrified of reversing a decision where you have been named a threat.
I think we want the same thing in the end. My hope, though, is that people would be very careful because I would not want to see a day where we change and reverse justice in our system such that people are guilty until proven innocent.
The bedrock of American jurisprudence is ``innocent until proven guilty.'' The burden is on the government. And until we can make red flag laws consistent with innocent until proven guilty, we should reject them.