I’ve previously observed that, for a “Senior Legal Policy Analyst,” Ms. Swearer seems to have a limited grasp of legal issues; particularly “red flag” laws. Or pretends so.
Once again, she is pushing “properly crafted” “red flag” laws.
In a nation with a constitution with a Fifth, Sixth, and Fourteenth Amendment, and where Truax v. Corrigan, 257 U.S. 312 (1921) yielded a SCOTUS decision that due process must take place before a taking, before an abrogation of constitutionally protected rights, there is no such thing as a properly crafted “red flag” law.
The sort of laws Swearer describes as good “red flag” laws, are not. She describes the existing, standard protective order: accuser presents real evidence, hearing is held in which the accused — who must be informed — can have legal representation and present his defense, and the judge rules. If the ruling is in favor of the accuser, now firearms may be taken.
By deliberate intent, “red flag” laws:
- Allow no-due process ex parte proceedings in which the accused’s first warning is when the police arrive to SWAT him.
- Far from facing his accuser, it is unlawful for anyone to tell the accused who did it to him until his eventual hearing.
- Lower the standard of evidence to the level of I feel that something might happen sometime, but I can’t prove it or I’d file a police report so they could get an arrest warrant.
- When a ex post facto hearing is eventually held (laws vary from two weeks to a month after the seizure of property), the burden of proof is shifted to the accused. He must prove his innocence of something that hasn’t happened and for which there may have been no credible evidence was going to… because if there was, he could have been arrested already.
That is what makes a “red flag” law: No due process, gossip as evidence, and forcing the accused to prove his innocence. Anything else is a standard, existing protection order process.
Those elements are bad enough. The practical implementation of the laws is worse. In no “red flag” law I have reviewed* is there any requirement to take the allegedly “dangerous” person into custody; neither for “public safety” nor for a mental health evaluation. Florida’s perfunctory nod to that is a requirement that law enforcement merely inform the accuser if they are planning to — eventually — Baker Act the accused.
The accused is so dangerous that he must be SWATted on no notice and forcibly disarmed, but so safe he can be left on the loose to obtain other weapons?
Florida and Colorado allow the initial “hearing,” in which the accuser’s application is considered, to be conducted telephonically. Even an accused murderer deemed too dangerous to transport from jail to courthouse gets a video hearing so the judge can consider little things like the defendant’s demeanor and credibility as demonstrated by gestures, body language, and facial expressions.
The federal “encourage the states to SWAT innocent people” bill includes a pretend protection in the form of a felony perjury charge for a false report. But how does a prosecutor prove that the accuser didn’t really “feel” that “something” “might” happen “sometime”?
“I turned out to be wrong, Your Honor, but I honestly ‘felt’ that at the time.”
So why are people pushing for “red flag” laws? Why does Swearer think they’re so great? Do they honestly believe that they will reduce gun violence, and that makes the constitutional shredding worth it?
Florida passed its “red flag” law in March 2018. They are reportedly flagging an average of five people per day. 2019 data isn’t in yet, but an analysis of 2018 homicide, firearms-related homicide, and suicide numbers strongly suggests otherwise: post-red flag, homicides went up; firearms-related homicides went up; and suicides increased dramatically.
The suicide statistics — suicide rate held steady at 14.1/100K for two years, then suddenly jumped to 15.3/100K post-passage — suggest the law is making that worse. Imagine a borderline suicidal person suddenly betrayed by an anonymous accusation from a supposed loved one, his property stolen without a chance to defend himself; perhaps he’ll cross that borderline now, from potential to successful suicide. Would a depressed person choose not to seek professional help lest a well-meaning busybody “help” him by violating his human/civil rights?
“Red flag” laws are clearly unconstitutional. Far from helping, they may be aggravating the situation.
Protection order procedures with due process already exist in every state. Every state already has a Baker Act equivalent law to take at-risk people into custody for evaluation. “Red flag” laws are not needed… for the advertised purpose.
Which begs the rhetorical question of, “Why push for them?” In some cases, it appears to be ignorance of existing laws. That should not be the case for a “senior legal analyst.”
But consider the backlash to Presidential candidates suggesting the use of overwhelming military force against civilians to confiscate firearms in bulk (and how far we fallen when credible candidates could even think of such a thing). They cannot do it. It is impossible. That is why every “assault weapon” ban proposed prior to the current psychotic Congress grandfathered existing arms; even Feinstein understood the problems of kicking millions of doors because the occupants are well-armed.
If you go at it piecemeal, one firearm owner at a time, you can “boil the frog.” Pass a “red flag” law, use pretend “evidence” against someone who has done nothing, give him the semblance of a day in court, and you can sneak up on everyone. And if you happen to round up an occasional person who really was at risk, the people-controlling politicians and media will be happy to put him on display as the posterboy for wonderful ERPOs. “See? It works! Never mind that he was one in a few thousand.”
And you don’t even need expansive “assault weapon” definitions, because you’re taking everything anyway.
* I freely admit that I have not analyzed every law that has been passed, nor have I analyzed the results of those laws as I did with Florida. I lack the resources to do that. Unlike a “senior legal analyst” funded by a ritzy foundation with tens of millions of dollars to throw around, I do what little I can on my own time and dime. As is, I have to add airtime to my 4.5 year-old dumb flip-fone a bit at a time as I can scrape up the money, and I sold my 23 year-old truck a few months ago. If you would like to see more, and more in-depth, analyses feel free to hit my tip jar below.
[Permission to republish this article is granted so long as it is not edited, and the author and The Zelman Partisans are credited.]
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