Extreme Risk Protection Orders; Gun Violence Restraining Orders; Risk Protection Orders; Risk Warrants; Procedures for the Seizure and Retention of a Firearm. These various names, some descriptive, some cryptic, are all referring to the general idea more commonly know as Red Flag Laws.
Red Flag Laws are a hot topic among progressive media, Democrats, and a few Republicans hoping to curry favor with the former groups. As I write, about a third of the states have already adopted some version of these laws, and the Federal Government is attempting to encourage more states to do the same.
What are Red Flag Laws?
Succinctly stated: Red Flag Laws create ex-parte proceedings where a judge can remove a subject’s Constitutional right to own and bear arms without notifying the subject. The judge then orders local police to seize the subject’s firearms and notify him that his rights have been removed.
Am I being dramatic by referring to the person’s whose rights are being removed as the subject? No. I am using the exact language California uses to refer to the person. In other states he may also be called the Respondent, but he has no option to respond until after his rights are removed! Thus subject is a more fitting name.
Hallmarks of Red Flag Laws
The subject is not allowed at the hearing where the Judge will consider removing his firearms and his firearm rights. Only the petitioner is at this hearing.
The subject does not have to be notified that a petition has been filed to remove his firearm rights. Many proponents of these laws argue that such notice would be counter productive in that the subject could act on the knowledge ahead of time.
No Cost to File
There is no cost to petitioner to file a petition under Red Flag Laws. Further, there is often help provided by the court or other groups to assist the uninformed in filing such petitions.
Red Flag Laws provide for emergency hearings and fast action. This includes mandates to have a hearing on the same day of filing a petition, procedures to act over the weekend, and 24-hour mandates to act.
To meet these abbreviated schedules, the courts have little to no time to research the claims of the petitioner. The judge is left with only the testimony of the petitioner; the very person who wants to have the subject’s firearm rights removed. There is no cross examination or counter presentation from the subject.
No Due Process
Without notice and the opportunity to respond, the subject is denied a hearing, the chance to cross examine the witnesses, an attorney, and generally all forms of due process. He is then subjected to an unConstitutional seizure of his property.
Proponents of these bills, including SC Senator Lindsey Graham, argue that due process will be provided after the subject’s firearms are removed. ‘Justice delayed is justice denied’ however. Further, it fails to acknowledge the very real possibility that a subject will never have the opportunity for a hearing. Consider the case of Mr. Gary J. Willis who was executed in his own home by the police following a Red Flag Law order. His day in court will never come; yet the State seized his life and called the execution legal.
Relaxed Burden of Proof
To typically lose one’s firearm rights requires a criminal conviction with a standard of proof Beyond a Reasonable Doubt. (Not to mention due process and an attorney!) Under Red Flag Laws, the standard of proof is lowered to Clear and Convincing Evidence or even a Preponderance of the Evidence. What does that mean?
A Preponderance of the Evidence merely means more-likely-than-not. It is the legal equivalent of 51%. This standard of proof may be fitting for civil liability, but it has no place in our courts when a Constitutional right is at stake.
The Clear and Convincing Evidence standard of proof is little better. This standard is something greater than more-likely-than-not, but not quite the Beyond a Reasonable Doubt of criminal convictions. It’s use is also civil in nature and should not be the standard when removing a Constitutional right.
Failure to Provide Legal Counsel
Red Flag Laws, unlike other legal processes to consider one’s mental status or criminal proceedings, do not include provisions to provide an attorney for the subject. Rather, the subject has to find and hire his own attorney after his rights have already been removed. No other removal of Constitutional rights can be accomplished without the state providing an attorney for at least an indigent defendant.
Congress has not passed Red Flag Laws yet. However, the Senate, led by South Carolina Senator Lindsey Graham, is considering a Federal grant program for Red Flag Laws.
Knowing there is little Constitutional foundation for direct Federal action and, more importantly, not enough support from current senators, the current proposal by Senator Graham is a Federal grant program that encourages states, through the payment of money, to pass Red Flag Laws.
Federal money would be used in part to pay for public education about Red Flag Laws to ensure the new laws are used and, of course, to create support for the same.
Red Flag Laws create an environment ripe for abuse. Petitioners bare little to no cost for filing and are mostly, if not entirely, shielded from legal liability for their actions. Subjects do not learn their rights have been removed until the police are pounding on the door and demanding the surrender of all firearms and ammunition.
The subject has no option to cross examine the witnesses against him, bring his own witnesses, raise a defense, or even respond before the loss of his rights. When his ‘day in court’ finally comes, he enters already judged and is asking for the return of what is his rather than defending his rights.
Judges are handicapped. Without hearing from the subject, the view presented will be one sided and there will be little to no ability to probe the witnesses or present alternative fact. The Judge will be presented with only one foreordained conclusion, and failure to act will certainly result in major headlines should the subject ever commit a crime.
But what about here in South Carolina?
While South Carolina does not, per se, have a Red Flag Law, there is proposed legislation. It includes all of the hallmarks above. Worse yet, the proposed burden of proof for an emergency ex-parte hearing is probable cause. Merely a justifiable suspicion.
Our Legislature proposes to entrust this extreme power to the probate courts of each county. These Judges are publicly elected and spend the majority of their time handling the uncontested matters of administering estates. To charge them with the responsibility of removing Constitutional rights knowing that any misstep will be publicized among their voters will place them, and South Carolina gun owners, in an unfortunate position where the favored default action will be the removal of guns until more is learned.
Will our Legislature act? The chance at this time is low, but our financially savvy Republicans have a hard time resisting a Federal grant. Therefore the chances for a South Carolina Red Flag Law will increase significantly if Senator Lindsey Graham is successful in creating a Federal program to pay states that implement the law.
Don’t like the sound of Red Flag Laws? Call Senator Graham’s office at 864-250-1417 and leave the Senator a message.