Tag Archives: Baker Act

Baker Act vs. ERPO

There’s a fad for “red flag” extreme risk protective orders that makes the pet rock craze look rational. Even the Vichy NRA backs this supposed tool to keep guns away from “dangerous” people.

Except when they claim they don’t. Oh no, says the VNRA, we only back ERPOs with “due process.” Except when they don’t.

Why the demand for ERPOs, with their intended lack of due process? If the goal is to prevent a potentially dangerous person from harming himself or others, one could implement a Florida-style Baker Act.

The Baker Act allows an adult to be involuntarily held for mental health evaluation for up to 72 hours (12 hours for a minor). The 72 hour limit conforms to the usual 72 hour maximum that criminal suspects may be held without charges.

Neither a 72 hour questioning period nor a 72 hour mental health evaluation result in a permanent or semi-permanent loss of Second Amendment human/civil rights. In either case, a loss or suspension of rights would come only after a due process hearing (indictment or involuntary committal), resulting from the outcome of the questioning or evaluation.

It is noteworthy that victim disarmament advocates, and the VNRA, do not see any need for due process before rights are violated. In fact, typical “red flag” laws do not require that the allegedly dangerous person be taken into custody at all (the VNRA suggests this as an option available to a judge in an ex parte proceeding). The target is merely one class of weapons, not the person allegedly in need of help.

One class of weapons: firearms. Not baseball bats, knives, nor even motor vehicles, which in 2016 were implicated in almost 2,000 more deaths than firearms, even though estimates of the number of motor vehicles is 138,360,614 less than the number of firearms in America. ERPOs take firearms useful for defense, but not statistically more deadly automobiles. Not even the driver’s license.

Does that sound like something meant to ensure safety?

Another difference between a Baker Act hold (or hold for questioning) and “red flag” laws is that a person held for evaluation or questioning is allowed representation and communication. The subject of a “red flag” order never has the chance for either, because the first he knws about the order is when the police show up to seize his property, or kill him. And where is the due process for someone whose firearms are taken, because someone else was subject to a “red flag” order?

Further, standard “red flag” law language imposes a long-term loss of 2A rights even if the person is never found to require treatment, nor accused of an actual crime. Typically, the accused may petition for restoral of rights after a set period. In contrast, a criminal suspect released from custody without charge retains all of the rights he enjoyed prior to questioning.

“Red flag” extreme risk protective orders protect no one. Not the accused, not anyone else whom he allegedly might harm.

ERPOs are designed from the ground up to violate the rights of gun owners without pesky things like hearings or trial. ERPOs are legislatively and judicially blessed SWATting, no guilt required.

So why does the VNRA support “red flag” ERPOs, with ex parte proceedings instead of a simple Baker Act-style law in which no one loses their constitutionally-protected rights until adjudication has occurred?

 

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