The Real Dangers of Red Flag Laws Transcript and Sources
The Real Dangers of Red Flag Laws
Red Flag Laws, also known as Extreme Risk Protection Orders, are civil orders by judges demanding that individuals hand over their guns to police. They have had a recent surge across America on the heels of the media intensifying coverage of mass shootings. Though Red Flag laws are not completely new in that Connecticut passed the first one in 1999, their growth has been exponential in the past few years.
As of early 2020, 14 other states have enacted Red Flag laws, including Indiana, Florida, Vermont, Maryland, Rhode Island, New Jersey, Delaware, Massachusetts, Illinois, California, Washington, Oregon, Nevada, and New Mexico. And many more state legislatures are contemplating passing them.
In order to fully understand why Red Flag laws pose such a problem to individual liberty and due process, it’s important to look at the specific procedures common to Red Flag laws so you can see how they can be used as a tool for oppression.
One of the most concerning aspects of Red Flag laws is that the initial proceedings take place ex parte, that is, without the accused present to defend. Because of this, a judge only gets to hear one side of the story: the side that is petitioning to confiscate an individual’s firearms.
This proceeding flies in the face of due process because it effectively means that a judgment has been made without the chance for the accused to prevent their loss of property before the seizure takes place.
When the firearms are taken, typically, the accused must hand them over immediately or face criminal charges for refusal to obey a court order.
This combines the worst elements of civil and criminal court by making the confiscation of guns a lowered standard for enactment, and the punishment for failure to obey a higher one.
And judges rarely rule against confiscation.
Because judges are afraid that if they don’t go through with the order, and something bad happens, they will be blamed.
Talk about perverse incentives.
Once the guns have been seized, most courts shift the burden of proof onto the accused with a requirement of providing “clear and convincing” evidence that they are not a threat. So not only is the accused stigmatized by the Red Flag law, they are now treated as a wrongdoer who must prove their innocence thanks to the proceedings taking place in civil court instead of criminal.
This proceeding flies in the face of the 4th and 5th amendments as it essentially forces defendants to provide information to prove their innocence instead of putting the onus on the state to prove criminal intent.
The accused is at another disadvantage in civil court, as they do not have a right to an attorney if they cannot afford one as would be obtained in a criminal proceeding.
This means that those who are wrongfully targeted and lack resources are not only suffering the expense of trying to get their firearms back, but they will have to pay a good lawyer 10, 15, even 20 thousand dollars to fight the confiscation at the initial hearing.
Red Flag laws, as applied in this manner, can be used to disarm lower-middle-class to poor persons because they cannot afford the time and resources to put forward a good defense and prove their innocence.
The proceedings are also difficult for the defendant as the hearing to get one’s guns back typically takes place soon after confiscation, often within a two-to-four week window. For many, this sudden attack will disrupt their jobs, making it difficult to handle the hearing process while also trying to provide for themselves and their families.
Cash-strapped defendants will be disproportionately harmed by the expense of fighting a Red Flag order with such limited time before a failure to appear leads to a permanent loss.
That’s right! Failure to attend the hearing after confiscation means that the firearms seized are forfeited to police custody, essentially turning Red Flag laws into back-handed civil asset forfeiture for gun owners.
Beyond the difficulties of the proceedings, one should also carefully weigh how the supposed purpose of Red Flag laws is met as compared to reality.
Advocates claim that Red Flag laws are a surefire way to prevent imminent harm.
But is that true?
One of the most glaring deficiencies in the supposed efficacy of Red Flag laws is that the people whose guns are being confiscated because they are supposedly clear and present dangers are otherwise left free to carry out their assaults.
Red Flag laws do not detain the accused, so someone who may be a serious threat is still otherwise free to go and harm their intended victim or victims using other means, possibly even, by procuring another firearm.
An evil person who is bent on causing harm could readily get a gun on the black market or, as has been noted by a Marion County prosecutor in Indiana, the accused could go and just buy another gun from a retail store as some states’ Red Flag orders aren’t automatically placed to the National Instant Criminal Background check system.
If someone were truly an imminent threat, how does taking their guns, but leaving them free to murder using a knife, car, poison, or some other weapon, really stop their machinations?
The fact is – it doesn’t. As anyone who is committed to committing an atrocity will go ahead with their evil plans using some other means.
Another spurious claim Red Flag law advocates make is that Red Flag laws help those who are suicidal.
Those who claim that Red Flag laws are helping suicidal people really haven’t thought through what Red Flag laws do in empirical reality. If someone is genuinely suicidal, having armed police confront the accused may lead to police firing shots at the accused if they also come out armed. Truly suicidal people can readily take an easier route with, “suicide by cop.”
Further, someone struggling with suicidal thoughts, but who otherwise is open to change, is not going to be feeling better about themselves by being Red Flag’d. The last thing someone struggling needs is to be told there is something wrong with them while police barge into their house and forcibly confiscate their property.
Red Flag laws for suicidal people is a tone-deaf solution that ignores the underlying issues as to why they feel worthless in the first place.
These laws do not give counselling, mentorship, or guidance to help alleviate whatever underlying problem may have led to suicidal thoughts. All they do is stigmatize and threaten those already in a distraught place, and ensure that the accused has to face a costly process if they want to have their property back, as if that’s going to help them feel less depressed.
Perhaps the worst part of Red Flag laws though, is how they can be weaponized by exes, co-workers, and political opponents.
Red Flag laws have already been used as a revenge tactic, from a prisoner Red Flag’ing police officers at a jail house, to a mother red flag’ing an officer who shot her son several years prior because her son ran at the officer with a knife.
Red Flag laws have also already been used as a political tool of persecution. The Broward County police department, the one famous for failing to protect children at the Parkland school shooting, used social media monitoring to go after a gun owner who criticized gun control protests by March for Our Lives.
The order was filed for nothing more than posting a picture of an AR build and, in another post, criticizing March for Our Lives activists online. In that situation, the judge fortunately had the sense to throw the case out.
Even though that man got his guns back, he still essentially “lost” as he had to fund a lawyer out-of-pocket to represent him in court.
What these examples show is that Red Flag laws have been, and will continue to be, used as a tool for persecution, from a revenge tool to a speech silencing tool.
When the government can come and take your property and treat you as guilty until you prove your innocence, you’re not in a limited constitutional republic. You’re in a police state where your anti-gun neighbors are empowered to disarm you at the beckoning of gun-grabbing politicians and police.
If we don’t work together to stop Red Flag laws, soon enough, anyone who speaks about their love of firearms, and makes any criticism of gun control or politicians demanding gun control, will be targeted.
No one will be safe to express themselves without fear of reprisal.
So…how can we change minds and push against these Red Flag laws? Start with sharing this video and have a discussion with others. Many simply do not understand the nuances of Red Flag laws as the laws are promoted with rhetoric that doesn’t match the reality.
In addition, be sure to support gun rights organizations such as Firearms Policy Coalition in their lawsuits against Red Flag laws, and support content creators like yours truly who are educating people and debunking gun-grabber lies.
And, importantly, be a support for those who may be feeling distressed, whether that’s a friend or a relative who could use someone to talk to. You can be the change you want to see in helping others see value in living life to the fullest.
Together, we can change minds and foster a culture for firearms freedom.
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