Raising The Red Flag For Due Process
Published: August 28th, 2019
By: Joe Angelino

Raising the Red Flag for due process (Submitted photo)

There is an old saying; you can eat a whole elephant one bite at a time. This is analogous to accomplishing any difficult task using patience and a step-by-step, methodical fashion.

That’s exactly what is happening with efforts to remove firearms from as many people as possible through legislation. Little bites here and there are nibbling away at our constitutional right to bear arms. The most recent effort is called Red Flag laws. New York’s red flag law went into force last Saturday; exactly 180 days after Governor Cuomo signed the bill with his invited guest, House Speaker Nancy Pelosi seated at his side.

The governor’s comment after signing the red flag law was “This is a big step forward for common sense gun safety…” which alludes to additional steps planned in the war on the Second Amendment. In this case, the governor’s use of the term common sense is what some people feel is another word for an unconstitutional act.

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The newest law in our state is found in the Civil Practice Law and Rules, article 63-A; Extreme Risk Protection Orders (ERPO). If ever there was an example of a flawed law, this is one. You know a piece of law is poorly conceived when the left-leaning ACLU and the ultra-right NRA agree that individual rights to due process are being trampled upon.

The gist of the ERPO law is any gun owner may have to surrender their right to possess firearms because of interactions with others. The law includes a list of people who can tell a judge “that person makes me nervous and he might hurt me, or himself because he owns firearms.” Some of the people who can make this powerful accusation are; school teachers, cops, sports coaches, ex-spouses, current spouses, former roommates, in-laws, baby-mommies and more.

The initial ERPO is an ex parte court order, which means it is signed by a judge hearing only one side of the case. The gun owner probably won’t know they are the subject of a court proceeding until the local police arrive at the front door with the emergency protective order in hand which acts as a search warrant for firearms.

No one wants firearms in the hands of the mentally unstable. That’s why New York already has laws which address this very subject. Penal Law section 265.01(6) makes it a crime for a person certified as not mentally suitable to possess a firearm.[*see end note] Additionally, under our current laws concerning Orders of Protection, a judge can already order firearms taken from a person who is the subject of an O.O.P.

If you care to read the new Extreme Risk Protection Order law you’ll realize it only speaks about the removal of firearms. There is no order or course of action which mentions mental health treatments or examinations for the gun owner. If the gun owner complies with the court order, they are not taken into custody; it’s only their guns which are collected. If the judge’s initial decision is somehow reversed, don’t expect the confiscated weapons getting returned anywhere near as fast as they were taken.

Under the US Constitution, when a person goes to court they do so under the assumption they are innocent and the state must prove beyond a doubt the defendant is guilty. Under the red flag laws, it is just the opposite; the respondent must prove himself to a judge they are worthy of exercising their rights. This little detail won’t matter to the majority of citizens – unless it happens to you. Eventually, the gun owner is provided a chance at a hearing, but there’s no provision for a court-appointed attorney. Even after a hearing, there are few judges will overturn their own previous decisions.

Many years ago New York did the right thing and started the Child Abuse Hotline and created a class of people known as “Mandated reporters” of child abuse. This hotline has done a great job alerting authorities to neglected and abused children. It has also been falsely and unlawfully abused by so many people for various reasons of revenge, a law was enacted making it a crime to specifically make a false child abuse report (NYS Penal Law section 240.50-4). The red flag laws need a similar statute.

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The threshold to take away someone’s constitutional rights should be much harder to cross than what is in this new law. There should be some sort of corroboration or investigative steps to validate and assist a judge before they circumvent the presumption of innocence, the burden of proof and confiscation of personal property. But in the shadow of the recent mass shootings in Texas and Ohio, knee jerk reactions must be taken which show some sort of action on the part of elected officials. A paraphrased Benjamin Franklin quote fits nicely here; “those who would give up liberty to purchase a little temporary safety deserves neither liberty nor safety.”

*NYS Penal Law section 265.01(6) was enacted in the early 1980s by petition of Chenango County District Attorney John Marshall after a man named Clifford Tuthill, a mentally unwell individual, shot his wife in the head for not changing the television channel quickly enough at their apartment on Birdsall Street in Norwich.


Gene Ralno
3 years ago
Politicians who support this notion will regret the day they ever heard of red flag laws. It's like reacting to a neighbor threatening passersby with a hammer by calling the police and demanding they take his weapon. Their legacies will carry a Supreme Court scolding and perhaps be the landmark of their careers. The Supreme Court isn't about to jeopardize its own reputation by reducing the ability of private citizens to defend themselves. It's especially important to the justices because currently, half the nation's murders occur in only 63 counties while the other half are spread across the other 3,081 counties. Said another way, 15 percent had one murder and 54 percent of the nation’s counties had no murders at all.
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