One American Citizen

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Friday, January 31, 2020

Red Flag Laws are Unconstitutional, But Can They Be Constitutional?

     Red Flag laws are the newest form of legislation aimed at curbing gun violence. They are intended to stop someone before they commit the act. It sounds great on the surface but they are unconstitutional in their current form. Right now, police, a family member, or an acquaintance can petition the courts to issue a Extreme Risk Protection Order to execute a search warrant and remove any firearms from the person. The judge in the case has ultimate authority to issue or deny the petition. Once the firearms are removed, the person then has the right to a hearing in front of that same judge, generally within 10 days. On the surface it seems like a good thing, and it can be at times, but is it legal to do that? Let's look at the 4th and 5th amendment of the Constitution.

The 4th amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  
     The Fourth Amendment is pretty self explanatory. We have the right to have security from unjust intrusion by the government with out probable cause. Probable cause is a widely debated phrase on what is considered probable cause. For this law to be constitutional, the fear of another person would need to be considered probable cause. The legal definition of probable cause in regards to search warrants is:

"Sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime."
-www.dictionary.law.com 
      I have highlighted words in this definition because they are important to this case. Nealy every legal definition of "probable cause" will include the word "crime". It is safe to say that for someone to have probable cause, they must first think their was a crime committed. So if these Red Flag laws are put in place to prevent crime, how can a search warrant be issued before a crime has been committed? They legally can't. Their is no provision in the fourth Amendment for the assumption a crime is imminent. Does this mean the intent of these laws are bad? No. It just means they need to find a constitutional way to do it

The 5th amendment says:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

      The Fifth Amendment contains some key language as highlighted above. The critical phrase here is "without due process". Due process is one of the most important right we the people have. It is derived from the Magna Carta which reads

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

     Without due process, the state could imprison you without a trial and arbitrarily say you are guilty of a crime. In the US, we are innocent until proven guilty, and without probable cause they cannot legally come in and take your guns. The proponents of these laws claim that due process is not violate because you have the right to plead your case before the judge. They seem to forget that they have already deprived you of your property without legal probable cause because no laws are broken. It is not illegal to own firearms unless you are a felon or have been deemed unfit. A crime must have occurred for a search warrant to be legal. 
     These laws are meant to protect the public from a potentially dangerous person. I personally like the idea, especially with the epidemic of mental illness spreading across this country. I feel that I have come up with a reasonable solution that fits within the bounds of the constitution. Instead of issuing warrants for the guns, let the police do the work. When someone comes forward with valid concerns and evidence to support those claims, the police make contact with that person. Since police can legally detain someone for a short amount of time for evaluation of mental illness, give the person the option to go with them for a psych evaluation, or they can temporarily surrender their firearms voluntarily. If the person decides to go with the police, they are immediately given an evaluation by a licensed psychiatrist. If the psych evaluation comes back clean the person is free to go like nothing happened. If the person surrenders their firearms voluntarily, they then have the right to a psych evaluation and a hearing before a judge to get their firearms back. If the person is deemed unfit by the psychiatrist, then a hearing is held so the person can plead their case and protection order can be ordered by a judge and the firearms seized by the state if its warranted by the evidence. This would require the state make clear and detailed criteria for what conditions would deem a person unfit. Evidence of threats or harassment would be paramount in the decision making process.
     This strategy satisfies the Constitution because there is no warrant without probable cause, there is no involuntary seizure of property, and it satisfies due process because a person has the right to a hearing before their property is seized. This way guns are only taken against a persons will if the state has legally admissible evidence that the person is deemed unfit. 
     The reasoning behind Red Flag laws is good, and they can be legally enforced. These laws have the potential of stopping would be shooters before they happen, and they can be done without violating a persons rights. In their current form, I fear that this will eventually turn into Swatting 2.0 where people petition courts just to get back at people and that will lead to people dying on both sides of the door.


-American Citizen

PS: This is my opinion, I am not a lawyer and am completely open to debate over this if you think I am wrong.
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