ACLU and Red Flag Laws

So-called “red flag laws,” which provide for protective orders to remove guns from people who pose a significant risk to themselves or others, can also be a reasonable way to further public safety. To be constitutional, however, they must at a minimum have clear, nondiscriminatory criteria for defining persons as dangerous and a fair process for those affected to object and be heard by a court.

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So-called “red flag laws,” which provide for protective orders to remove guns from people who pose a significant risk to themselves or others, can also be a reasonable way to further public safety. To be constitutional, however, they must at a minimum have clear, nondiscriminatory criteria for defining persons as dangerous and a fair process for those affected to object and be heard by a court.

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A bipartisan group of House leaders in Colorado have introduced a red-flag bill that would allow law enforcement to temporarily seize the firearms of those who pose a "significant risk" of harming themselves or others.

But a surprising opponent to some red-flag legislation in the U.S. has emerged: The American Civil Liberties Union is somewhat aligned with the National Rifle Association's stance on this type of legislation.

In March, the ACLU issued a fourteen-page legislative analysis in opposition to a red-flag bill winding its way through the Rhode Island statehouse, saying it had "great concern" because the bill didn't narrowly define who could or couldn't be the subject of an extreme-risk protection order to have their guns removed and that the onus was on the accused to prove that they should have their guns back, among other issues. The ACLU (and the NRA) also opposed an Obama-era proposal that would have fed information regarding the mental health of recipients of Social Security disability benefits into the FBI's background-check database for firearms purchases. The ACLU said that the rule took away people's constitutional rights without due process.

"If we have opposed any of those bills, it's simply because there were not enough due-process protections of the individuals who were being denied their guns," says ACLU of Colorado Public Policy Director Denise Maes. "That's where we have parted ways in other states on this legislation."

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The ACLU’s analysis concludes:
“People who are not alleged to have committed a crime should not be subject to severe deprivations of liberty interests, and deprivations for lengthy periods of time, in the absence of a clear, compelling and immediate showing of need. As well-intentioned as this legislation is, its breadth and its lenient standards for both applying for and granting an ERPO are cause for great concern.

“The ACLU urges legislators to focus bills like these on addressing serious imminent threats to the public safety while safeguarding robust due process procedures before granting the courts and law enforcement agencies potentially intrusive powers over the liberty of individuals charged with no crime. A narrower bill with basic due process protections can provide the proper balance in promoting both public safety and constitutional safeguards.

“Gun violence is a deeply serious problem deserving of a legislative response, but not, Minority Report-like, at the expense of basic due process for individuals whose crimes are speculative, not real. The precedent it creates could reverberate in unexpected and distressing ways in years to come.”

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iH8DemLibz said:

Lots of folks are really hoping this ACLU-Red Flag information is true.

I don't think people fully grasp what the loss of our Due Process rights really means.

If these laws stand, it means the government can do anything it wants to you without first seeking proof and proving that you actually did something wrong.

It's beyond disturbing.

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pcfixer said:

Absolutely 100% Unjust and illegal laws are invalid.

So what did the Founders’ Due Process Clause mean? It meant that in prosecuting a person criminally or civilly, the government must honor existing law. Government may not prejudice a defendant by changing the law retroactively. Government may not prejudice a defendant by making up the rules as it goes along.
The evidence for this conclusion is, in my view, simply overwhelming.
The phrase “due process of law” was a synonym for the phrase “law of the land,” which appeared in Chapter 39 of the 1215 version of Magna Carta, and was included in later versions as well. Chapter 39 read as follows:
No free person shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any 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.


Read more: https://www.americanthinker.com/art...mean_by_due_process_of_law.html#ixzz5MeEroZW8
Follow us: @AmericanThinker on Twitter | AmericanThinker on Facebook

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GlocksAndPatriots said:

I don't think red flag laws are prime facie unjust. It really depends on the specifics. What evidence does the government need to provide? What standard of proof or review is the judge using? Does the person against whom the red flag is being sought get adequate notice? Is he allowed to have a court appointed attorney represent his interests? Are ex parte rulings ever allowed (this would be the most problematic in my book)?

Devil is always in the details.

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iH8DemLibz said:

Lots of folks are really hoping this ACLU-Red Flag information is true.

I don't think people fully grasp what the loss of our Due Process rights really means.

If these laws stand, it means the government can do anything it wants to you without first seeking proof and proving that you actually did something wrong.

It's beyond disturbing.

Click to expand...

pcfixer said:

And...Here is the details of current red flag law passed by GA and signed by Hogan.


https://www.marylandshallissue.org/jmain/legislation-tracker/151-veto-request-for-hb-1302

Plainly, a person who is dangerous or who “POSES AN IMMEDIATE AND PRESENT DANGER” but who does NOT possess guns is NOT covered by this bill. So, under this bill, gun owners are the new “suspect class” in the law, except that they are a targeted class rather than a class protected under the 14th Amendment. We know of no other circumstance in which the exercise of a constitutional right (the Second Amendment right of the law-abiding citizen to own a firearm) serves as a basis for singling out that class of persons for special, oppressive treatment. Because firearm ownership by law-abiding citizens is a fundamental right under the Supreme Court's decisions in Dist. Of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the state bears a special burden to justify any classification that singles out gun owners for special treatment. Under Heller, “rational basis” review is not permitted.

The bill also fails basic principles under the Equal Protection Clause of the 14th Amendment. The bill identifies as a class persons who may “POSE AN IMMEDIATE AND PRESENT DANGER” to himself or others. Any such person is a legitimate concern. Yet, this bill singles out for seizure of personal property and threat of criminal sanctions only law-abiding gun owners. The bill leaves unaddressed all other persons who may pose such dangers, including persons who may be on the verge of suicide or violent crime. Under this bill, it simply does not matter how imminent or severe the danger and no matter how deadly the other types of potential weapons that these other persons may possess or construct.

As the Supreme Court has stated, “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). That the bill authorizes seizures of property protected by the Bill of Rights makes it even worse.

Instead, the General Assembly has created the truly terrifying spectre of heavily armed SWAT teams showing up, without warning or notice, on the doorsteps of gun owners with ex parte seizure orders in hand. The potential for tragedy is obvious. As detailed below, you can be certain that this legislation will be abused by persons with animus toward a particular gun owner or toward gun owners in general. Gun owners will now have to consider whether they should go underground and be silent for fear of being subjected to this harassment. Vigorous debate is a fundamental First Amendment right. The bill is thus more than an attack on the Second Amendment. It is an attack on the Equal Protection and the exercise of First Amendment rights as well.

It gets worse. Under the bill, a judge may issue (1) an ex parte interim seizure order, (2) a temporary seizure order, and (3) seven days later (and even later if the time is extended), a final seizure order. Yet, under this bill, the respondent is not entitled to present any evidence or have that evidence considered until the final seizure order is heard. Specifically, the interim seizure order is completely ex parte and the provision for a temporary order states:

(2) IN DETERMINING WHETHER TO ENTER A TEMPORARY EXTREME RISK PROTECTIVE ORDER UNDER THIS SECTION, THE JUDGE SHALL CONSIDER:
(I) ALL RELEVANT EVIDENCE PRESENTED BY THE PETITIONER; AND (II) THE AMOUNT OF TIME THAT HAS ELAPSED SINCE ANY OF THE EVENTS DESCRIBED IN THE PETITION.

Only the petitioner’s evidence is considered. This limitation on the evidence is egregious, as a respondent served with an interim order under this bill gets notice of a temporary order hearing and may appear at the temporary order hearing. If the gun owner appears, he or she should be entitled to present evidence and have that evidence considered. Yet, as this language is written, the respondent is not entitled to present evidence prior to the entry of the temporary order and, even if allowed to do so, the court is free to ignore it and consider only the petitioner’s evidence. That is a fundamental denial of due process. So add the Due Process Clause of the 14th Amendment to the list of constitutional provisions this bill violates.

There are a host of other problems with the bill which are chilling in their implications. First, it allows a broad class of persons to file a petition and thus empowers persons who may possess animus against the respondent, to inflict a legal nightmare upon the respondent. Indeed, while ostensibly removing the right of “any interested person” to petition for an order (present in the original bill that passed the House),
the bill allows the same result because any person may request law enforcement to seek such an order and law enforcement is expressly permitted to serve as petitioner.
The bill, egregiously, also gives any petitioner complete legal immunity from both civil and criminal liability from any claim associated with bringing the petition as long as the petitioner asserts that the petition was filed in subjective “good faith.” Gun owners will thus become targets under this bill based on nothing more than the petitioner’s aversion to guns as the petitioner need only allege, in good faith, that they are afraid of guns and gun owners. A person wrongly subjected to this process and who is guilty of no wrongdoing has no legal remedy.

Gun owners are also hamstrung in defending themselves. The bill requires only “notice” to the respondent, yet nothing in the “notice” requirement mandates that the respondent receive an actual copy of the petition and all supporting evidence.
Nothing in this bill ensures that the respondents have the right to cross-examine the petitioner or enjoy compulsory process. And, as noted, the bill does not even obligate the judge to consider the respondent’s evidence until the final hearing, long after his constitutionally protected personal property has been seized by law enforcement. There is also no standard by which a lay judge must assess the issue of whether the respondent poses an “immediate danger” prior to seizing a person’s property. District judges are not mental health professionals. Such judges are competent at assessing “probable cause” for crimes, but they have no expertise in the field of mental health or at predicting future crimes. The risk of wrongful deprivation is apparent. These are all basic violations of due process.

Finally, this bill is wholly unnecessary. Maryland already has, under Section 10 of the Health General Article, MD Code, Health - General, § 10-622, et seq., an established procedure for an emergency mental health evaluation of an individual who presents a danger to the life or safety of any individual. Gun owners are not singled out for special oppression. Any person may petition for such an emergency evaluation. Petitions filed by lay persons must first be evaluated for actual “probable cause” by a judge. (Section 10-623). If the judge finds probable cause, or if the petition is filed by an enumerated mental health professional, the person’s firearms are not taken under some ex parte writ. Rather, the person himself is taken for an evaluation to an emergency facility where the person can request a voluntary admission or a determination can be made as to whether that person meets the requirements for involuntary admission. (Section 10-624). If the person is involuntarily admitted, the person is entitled to a hearing within 10 days of initial confinement, at which time the evidence must show, by clear and convincing evidence that person has a mental disorder, needs in-patient care and presents a danger to himself or others. (Section 10-632).

At that hearing, if the person is involuntarily committed the hearing officer may also determine whether the person “cannot safely possess a firearm based on credible evidence of dangerousness to others” and, if so, may order the person to surrender to law enforcement authorities any firearms in the individual's possession and refrain from possessing a firearm “unless the individual is granted relief from firearms disqualification in accordance with § 5-133.3 of the Public Safety Article.” Nothing less than these sorts of procedures is constitutional. See Zinermon v. Burch, 494 U.S. 113 (1990); Kansas v. Hendricks, 521 U.S. 346 (1997). There has been no showing that these procedures, established as recently as 2013, are inadequate.

The foregoing mental health procedures focus on the individual, and seek to treat the individual while at the same time depriving that individual of ready access to firearms. By contrast, the procedures set forth in HB 1302 only deprive that person of firearms. In short, the bill is both unconstitutional and poor public policy. For all these reasons, we respectfully request a veto.

Sincerely,

Mark W. Pennak
President, Maryland Shall Issue, Inc.
1332 Cape St. Claire Rd #342



This is a violation of due process. And Yes, Prima Facia UNJUST law. Better definition would be Tyranny!

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pcfixer said:

And...Here is the details of current red flag law passed by GA and signed by Hogan.


https://www.marylandshallissue.org/jmain/legislation-tracker/151-veto-request-for-hb-1302

Plainly, a person who is dangerous or who “POSES AN IMMEDIATE AND PRESENT DANGER” but who does NOT possess guns is NOT covered by this bill. So, under this bill, gun owners are the new “suspect class” in the law, except that they are a targeted class rather than a class protected under the 14th Amendment. We know of no other circumstance in which the exercise of a constitutional right (the Second Amendment right of the law-abiding citizen to own a firearm) serves as a basis for singling out that class of persons for special, oppressive treatment. Because firearm ownership by law-abiding citizens is a fundamental right under the Supreme Court's decisions in Dist. Of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the state bears a special burden to justify any classification that singles out gun owners for special treatment. Under Heller, “rational basis” review is not permitted.

The bill also fails basic principles under the Equal Protection Clause of the 14th Amendment. The bill identifies as a class persons who may “POSE AN IMMEDIATE AND PRESENT DANGER” to himself or others. Any such person is a legitimate concern. Yet, this bill singles out for seizure of personal property and threat of criminal sanctions only law-abiding gun owners. The bill leaves unaddressed all other persons who may pose such dangers, including persons who may be on the verge of suicide or violent crime. Under this bill, it simply does not matter how imminent or severe the danger and no matter how deadly the other types of potential weapons that these other persons may possess or construct.

As the Supreme Court has stated, “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). That the bill authorizes seizures of property protected by the Bill of Rights makes it even worse.

Instead, the General Assembly has created the truly terrifying spectre of heavily armed SWAT teams showing up, without warning or notice, on the doorsteps of gun owners with ex parte seizure orders in hand. The potential for tragedy is obvious. As detailed below, you can be certain that this legislation will be abused by persons with animus toward a particular gun owner or toward gun owners in general. Gun owners will now have to consider whether they should go underground and be silent for fear of being subjected to this harassment. Vigorous debate is a fundamental First Amendment right. The bill is thus more than an attack on the Second Amendment. It is an attack on the Equal Protection and the exercise of First Amendment rights as well.

It gets worse. Under the bill, a judge may issue (1) an ex parte interim seizure order, (2) a temporary seizure order, and (3) seven days later (and even later if the time is extended), a final seizure order. Yet, under this bill, the respondent is not entitled to present any evidence or have that evidence considered until the final seizure order is heard. Specifically, the interim seizure order is completely ex parte and the provision for a temporary order states:

(2) IN DETERMINING WHETHER TO ENTER A TEMPORARY EXTREME RISK PROTECTIVE ORDER UNDER THIS SECTION, THE JUDGE SHALL CONSIDER:
(I) ALL RELEVANT EVIDENCE PRESENTED BY THE PETITIONER; AND (II) THE AMOUNT OF TIME THAT HAS ELAPSED SINCE ANY OF THE EVENTS DESCRIBED IN THE PETITION.

Only the petitioner’s evidence is considered. This limitation on the evidence is egregious, as a respondent served with an interim order under this bill gets notice of a temporary order hearing and may appear at the temporary order hearing. If the gun owner appears, he or she should be entitled to present evidence and have that evidence considered. Yet, as this language is written, the respondent is not entitled to present evidence prior to the entry of the temporary order and, even if allowed to do so, the court is free to ignore it and consider only the petitioner’s evidence. That is a fundamental denial of due process. So add the Due Process Clause of the 14th Amendment to the list of constitutional provisions this bill violates.

There are a host of other problems with the bill which are chilling in their implications. First, it allows a broad class of persons to file a petition and thus empowers persons who may possess animus against the respondent, to inflict a legal nightmare upon the respondent. Indeed, while ostensibly removing the right of “any interested person” to petition for an order (present in the original bill that passed the House),
the bill allows the same result because any person may request law enforcement to seek such an order and law enforcement is expressly permitted to serve as petitioner.
The bill, egregiously, also gives any petitioner complete legal immunity from both civil and criminal liability from any claim associated with bringing the petition as long as the petitioner asserts that the petition was filed in subjective “good faith.” Gun owners will thus become targets under this bill based on nothing more than the petitioner’s aversion to guns as the petitioner need only allege, in good faith, that they are afraid of guns and gun owners. A person wrongly subjected to this process and who is guilty of no wrongdoing has no legal remedy.

Gun owners are also hamstrung in defending themselves. The bill requires only “notice” to the respondent, yet nothing in the “notice” requirement mandates that the respondent receive an actual copy of the petition and all supporting evidence.
Nothing in this bill ensures that the respondents have the right to cross-examine the petitioner or enjoy compulsory process. And, as noted, the bill does not even obligate the judge to consider the respondent’s evidence until the final hearing, long after his constitutionally protected personal property has been seized by law enforcement. There is also no standard by which a lay judge must assess the issue of whether the respondent poses an “immediate danger” prior to seizing a person’s property. District judges are not mental health professionals. Such judges are competent at assessing “probable cause” for crimes, but they have no expertise in the field of mental health or at predicting future crimes. The risk of wrongful deprivation is apparent. These are all basic violations of due process.

Finally, this bill is wholly unnecessary. Maryland already has, under Section 10 of the Health General Article, MD Code, Health - General, § 10-622, et seq., an established procedure for an emergency mental health evaluation of an individual who presents a danger to the life or safety of any individual. Gun owners are not singled out for special oppression. Any person may petition for such an emergency evaluation. Petitions filed by lay persons must first be evaluated for actual “probable cause” by a judge. (Section 10-623). If the judge finds probable cause, or if the petition is filed by an enumerated mental health professional, the person’s firearms are not taken under some ex parte writ. Rather, the person himself is taken for an evaluation to an emergency facility where the person can request a voluntary admission or a determination can be made as to whether that person meets the requirements for involuntary admission. (Section 10-624). If the person is involuntarily admitted, the person is entitled to a hearing within 10 days of initial confinement, at which time the evidence must show, by clear and convincing evidence that person has a mental disorder, needs in-patient care and presents a danger to himself or others. (Section 10-632).

At that hearing, if the person is involuntarily committed the hearing officer may also determine whether the person “cannot safely possess a firearm based on credible evidence of dangerousness to others” and, if so, may order the person to surrender to law enforcement authorities any firearms in the individual's possession and refrain from possessing a firearm “unless the individual is granted relief from firearms disqualification in accordance with § 5-133.3 of the Public Safety Article.” Nothing less than these sorts of procedures is constitutional. See Zinermon v. Burch, 494 U.S. 113 (1990); Kansas v. Hendricks, 521 U.S. 346 (1997). There has been no showing that these procedures, established as recently as 2013, are inadequate.

The foregoing mental health procedures focus on the individual, and seek to treat the individual while at the same time depriving that individual of ready access to firearms. By contrast, the procedures set forth in HB 1302 only deprive that person of firearms. In short, the bill is both unconstitutional and poor public policy. For all these reasons, we respectfully request a veto.

Sincerely,

Mark W. Pennak
President, Maryland Shall Issue, Inc.
1332 Cape St. Claire Rd #342



This is a violation of due process. And Yes, Prima Facia UNJUST law. Better definition would be Tyranny!

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GlocksAndPatriots said:

Agreed re: this law. My point is only that a legislature COULD draft a forfeiture law that would not violate due process. It seems that that isn't usually the case, unfortunately.

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TexDefender said:

Well, thankfully the gun grabbers can't and that is to our advantage. I'm all for due process and such.

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GlocksAndPatriots said:

I'd prefer a return to reinstitutionalization than worrying about guns.

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TexDefender said:

As long as there is due process.

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TexDefender said:

Seems to me this is bound for the SCOTUS in the end. Which is probably for the best, Maryland's legislature ability to write a reasonable, good and sound law is severely lacking. Which is a good thing.

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