In states with red flag laws, critics are raising due process concerns. Are they right? | Thursday Morning Coffee

State Rep. Movita Johnson-Harrell speaks at a rally during Gun Violence Awareness Day on Wednesday, June 5, 2019 (Capital-Star photo by John L. Micek)

Good Thursday Morning, Fellow Seekers.

With yet another mass shooting refocusing public attention on America’s protracted debate over gun control, there appears to be bipartisan consensus around one potential remedy: So-called ‘Red Flag’ laws that would allow a court to seize someone’s weapons if it’s believed they pose an immediate threat to themselves or to public safety.

In all, 17 states, along with Washington D.C. have such statutes. And the data appears to indicate that they’re working. Nonetheless, civil libertarians have raised due process concerns. That includes Pennsylvania, where Red Flag laws are now before the state House and Senate.

Our friends at Stateline.org neatly summed up the current, nationwide debate over due process in a piece posted earlier this week, finding that “most red flag laws are vague on what constitutes a ‘significant danger’ [to public safety], which gives courts broad discretion to seize firearms, Parris said. And in some states, respondents are not guaranteed representation in court, since these are civil and not criminal matters.”

(Source: Stateline.org)

In the year since Florida enacted its Red Flag law in the wake of the mass shooting at Marjorie Stoneman Douglas High School in Parkland, Fla., attorney Kendra Parris told Stateline that she’s defended around 20 clients who were facing risk protection orders.

Parris told Stateline the statute is “almost like a shiny new toy for law enforcement,” who have been “filing them left and right.” Since Parkland, six states, and Washington D.C. have enacted such statutes, Stateline reported.

Dave Kopel, the research director at the Denver-based Independence Institute, a libertarian think tank, chimed in, telling Statelinte that legislatures “have taken the same approach President Donald Trump spoke in favor of in March 2018: ‘Take the guns first, go through due process second.'”

(Capital-Star file photo)

Pennsylvania state Rep. Todd Stephens, the Montgomery County Republican who’s sponsoring a Red Flag bill in the majority-GOP state House, told the Capital-Star earlier this year that he’s gone through his bill line-by-line to dispel critics’ fear about any infringement on their constitutionally protected due process rights.

Stephens bill provides for both the short-term seizure of someone’s weapons as well as a longer, months-long ban that carries with it a higher standard of evidence.

“Gun owners across Pennsylvania don’t realize that they can be disarmed for life without a judge ever saying a word,” Stephens told the Capital-Star, referring to state and federal law banning someone from owning a gun if they’ve been subject to an involuntary commitment. “So when you compare [extreme risk protection orders] with what the status quo is, it’s a win for gun owners.”

The Senate Judiciary Committee is set to hold two days’ worth of hearings on gun-safety measures on Sept. 24 and Sept 25. A Senate Red Flag proposal, sponsored by Sen. Tom Killion, R-Delaware, is likely to be on the docket for those hearings.

In an Aug. 23 op-Ed for the Capital-StarKillion wrote that his legislation would protect due process rights “of all involved.”

“This law would create a transparent process in which judges can only order the relinquishment of firearms if there is compelling evidence that individuals pose a serious danger,” he wrote. “Long-term orders can only be issued after a full hearing is held, at which all parties can appear and present evidence.”

Democratic Gov. Tom Wolf has urged lawmakers to pass the Red Flag bills when they return to session later this month.

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An award-winning political journalist with more than 25 years' experience in the news business, John L. Micek is The Pennsylvania Capital-Star's Editor-in-Chief. Before joining The Capital-Star, Micek spent six years as Opinion Editor at PennLive/The Patriot-News in Harrisburg, Pa., where he helped shape and lead a multiple-award-winning Opinion section for one of Pennsylvania's most-visited news websites. Prior to that, he spent 13 years covering Pennsylvania government and politics for The Morning Call of Allentown, Pa. His career has also included stints covering Congress, Chicago City Hall and more municipal meetings than he could ever count, Micek contributes regular analysis and commentary to a host of broadcast outlets, including CTV-News in Canada and talkRadio in London, U.K., as well as "Face the State" on CBS-21 in Harrisburg, Pa.; "Pennsylvania Newsmakers" on WGAL-8 in Lancaster, Pa., and the Pennsylvania Cable Network. His weekly column on American politics is syndicated nationwide to more than 800 newspapers by Cagle Syndicate.

1 COMMENT

  1. ERPOs are dangerous to liberty. In technical terms, they call it an ex parte order. These orders violate due process, which is a guaranteed protection for Americans in the U.S. Constitution. It’s serving punishment on an American for not doing anything wrong. For a comparison, it would be like confiscating an automobile from an alcoholic, being suspicious that he will cause a death.. It’s “guilty until proven innocent.” The burden of proof is not on the accuser as in every other legal case, with the accused having a right to confront and cross-examine their accuser; but instead, placed on the gun-owner victim who’s property is being confiscated without due process. This is not how our system of justice works in America.

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