New York’s New ‘Red Flag’ Law Illustrates the Due Process Problems Raised by Gun Confiscation Orders

New York’s “red flag” law, which takes effect tomorrow, illustrates the due process issues raised by court orders that suspend people’s Second Amendment rights when they are deemed a threat to themselves or others. The law seems designed to compound the problems created by the 2013 SAFE Act, which required mental health specialists to report people they thought “likely to engage in conduct that will cause serious harm to self or others” so police could confiscate their guns.

The new law allows a long list of people to seek an “extreme risk protection order” that bars the respondent from possessing firearms. Potential petitioners include police officers, prosecutors, blood relatives, in-laws, current and former spouses, current and former housemates, current and former girlfriends or boyfriends, people who have produced a child with the respondent, and school administrators or their designees, such as teachers, coaches, and guidance counselors. The “school personnel” covered by the law can even report a former student if he graduated within the previous six months.

As usual, “extreme risk protection order” is a misnomer. An initial, ex parte order lasting up to six business days can be obtained based on “probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others.” The purported threat need not be “extreme” or imminent. At this stage, the respondent has no opportunity to challenge the claims against him, and the experience of other states suggests that judges will routinely rubber-stamp initial orders.

After a hearing, a final order can be issued based on “clear and convincing evidence” that “the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others.” A final order lasts up to a year and can be renewed. Again, there is no requirement that the threat be imminent. And while “clear and convincing evidence” is a more demanding standard of proof than “a preponderance of the evidence” (which is enough in three states and the District of Columbia), “likely” is a slippery concept in this context.

The red flag law refers to the definition used in New York’s standard for “emergency” psychiatric commitment, lasting up to 15 days, which requires a “substantial risk of physical harm.” That is better than the standard prescribed by many other red flag laws, which typically require a “significant” risk and in some cases merely a “risk,” “danger,” or “risk of danger.” But contrary to the connotations of extreme and likely, people can lose their Second Amendment rights even when it is quite unlikely that they would use a gun to harm themselves or others.

Notably, judges may consider “any evidence,” and respondents have no right to legal representation if they cannot afford it. Nor do they have a civil cause of action against petitioners who lie, a potentially significant problem in light of all the people who are allowed to file a petition. What is to stop an in-law, cousin, ex-spouse, ex-girlfriend, or former housemate with a grudge from abusing this process by seeking to take away someone’s constitutional rights?

Theoretically, they could be prosecuted for lying, but that almost never happens. “The odds of criminal prosecut[ion] are low, even if an affidavit is sworn under
penalty of perjury,” David Kopel, a gun policy expert at Denver’s Independence Institute, noted in Senate testimony last March. “Perjury prosecutions are rare, and rarer still from civil cases….Without a strong civil remedy, there is little practical deterrent to malicious reports.”

Erie County District Attorney John Flynn, who supports New York’s red flag law, recently acknowledged the potential for mischief. “This is a huge change,” he told a local radio station. “I agree that there’s potential for abuse here….If some spouse is mad at their husband or wife, and they get into an argument, and they’re trying to just get back at their spouse, can they come to me and lie to me, say, ‘My husband’s acting erratically, he’s got a gun,’ etc., etc., when they really might not be mentally disturbed? I agree the potential is there for abuse. But all I can say is that I can see through nonsense….I’m going to be fair. I’m going to be reasonable. I’m going to use common sense. And I’m not going to willy-nilly go in and take people’s guns that have a constitutional right to keep them.”

But as Flynn acknowledged, “you don’t have to come to me”: Anyone on the long list of potential petitioners can go directly to a judge and ask for a gun confiscation order. So it’s not as if law enforcement officials like Flynn, who describes himself as “a firm believer in the right to bear arms,” will act as filters against malicious petitions. And while the judge is supposed to act as a filter, he has a strong incentive to issue an order whenever a petitioner claims someone poses a danger to himself or others. From the judge’s perspective, it is better to err on the side of suspending someone’s constitutional rights than to take the chance that something terrible will happen if he doesn’t.

“New York is proud to pass the first-in-the-nation Red Flag Bill that empowers school teachers to do something when they believe something bad is going to happen,” Gov. Andrew Cuomo proclaimed when he signed the bill last February. Cuomo imagines that vigilant, conscientious, and prescient teachers (the kind typically employed by public school systems) will prevent mass shootings by identifying would-be killers before they can strike. But what about teachers who are mistaken, or dislike a particular student, or are mistaken because they dislike that student? They can set in motion a legal process that affects not only the student but his parents, whose guns will be confiscated until they demonstrate that they are legally allowed to own them.

Such legal entanglement may seem like a small matter compared to the risk of a mass shooting. But it is bound to happen, while the violence-preventing benefit of red flag laws is purely speculative. Likewise, it is certain that many adults who do not actually pose a threat to anyone will nevertheless lose their Second Amendment rights for a year or more. That consideration seems to count for nothing in the calculations of the politicians agitating for more red flag laws.

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