Suspension without pay?
Buffalo shooting: Extreme risk protection orders could help stop Ohio mass killings| Rogers
There is a statutory remedy that can authorize preventive actions against warned mass shootings: extreme risk protection order laws. They allow law enforcement and sometimes family members to petition a court for an emergency order to deprive the dangerous individual of access to guns.
“Red flag” laws. Everyone’s — especially this alleged Yale graduate, past attorney, and adjunct law professor — favorite due process deprivation to stop something that might happen, maybe, sometime.
But at least Douglas Rogers tries to back up his claim with case law.
Sort of. Specifically…
There is no legal prohibition against extreme risk protection orders.
The Supreme Court “has recognized, on many occasions, that where a state must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the Due Process Clause.
That sounds definite, eh? Take a closer look. Rogers didn’t actually cite the case from which he’s quoting, but it didn’t take much of a search to find that language in Gilbert v. Homar, 520 U.S. 924 (1997). SCOTUS found:
In the circumstances here, the State did not violate due process by failing to provide notice and a hearing before suspending a tenured public employee without pay. Pp. 928-936.
Wait. Suspension without pay is on an equal level with confiscation of property (firearms)?
Look at some facts of the case:
“respondent was arrested by state police and charged with a drug felony.”
Sufficient evidence to support probable cause to believe that a crime had been committed.
“Petitioners, ESU officials, suspended him without pay, effective immediately, pending their own investigation.”
Suspended without pay. Not fired, not fined. Based on a probable cause arrest.
Compare that to the typical “red flag” “extreme risk” order”
A complaint that someone might pose a threat in the future. Not an allegation that a crime had been committed.
Property, in the form of firearms, is taken.
As the Court noted, suspension without pay based on a probable cause arrest was a temporary inconvenience; no money was taken, just new payments suspended (for a period when the respondent wouldn’t be working to earn that pay).
A red flag confiscation order, based on a a wild guess rather than a committed crime, results in the taking of property. More specifically, it’s the taking of constitutionally-protected — Second Amendment — property, without due process.
I’m seeing some significant differences between the scenarios, Rogers. Perhaps a better SCOTUS citation on the actual taking of property would be Truax v. Corrigan (1921);
“The due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns” […] “a law which operates to make lawful such a wrong as is described in plaintiff’s complaint deprives the owner of the business and the premises of his property without due process and cannot be held valid”. (emphasis added)
Hearing first, then taking.
I fear for the clients of attorneys taught by this former adjunct law professor.
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Good stuff, Carl. It is more very useful information in the fight against the pernicious red flag laws.