Do the current proposed Congressional “Red Flag Laws” themselves exhibit Red Flags?

On January 3, 2019, Senator Marco Rubio of Florida introduced in the United States Senate his Extreme Risk Protection Order and Violence Prevention Act of 2019 (“S.7″). On February 14, 2019, Senator Dianne Feinstein of California introduced in the United States Senate her Extreme Risk Protection Order Act of 2019 (“S.506”).

On March 26, 2019, the United States Senate Judiciary Committee conducted a hearing on Red Flag Laws: Examining Guidelines for State Action (“Hearing”). Five (5) witnesses appeared at the Hearing, all of whom submitted written testimony prior thereto as well as testified at it. One of those witnesses was Professor David B. Kopel (“Kopel”) whose written testimony set forth certain criteria for assessing the conformity of such statutes to procedural due process requirements.

This post will endeavor to analyze whether S.7 and S.506 conform to Kopel’s criteria. While some may disagree that these are the proper criteria to apply, this post operates upon the assumption that these ought to be operative in determining the acceptability of, or deficiencies in, either S.7 or S.506.

The initial observation is that both S.7 and S.506 are properly limited to the function of providing possible financial grants to the States for implementing such statutory regimes. For these regimes are solely within the Police Powers of the States and thus beyond the enumerated powers of the Federal government. Nevertheless, since both S.7 and S.506 prescribe certain guidelines for determining standing and procedures, those guidelines will be expected to exert a certain coercive effect upon the States to adopt a statutory regime parallel to them; for even if more strict standards could be employed by the States, or some of them, it will be expected that the general propensity (if not universal principle) to exert minimal effort to attain an objective will discourage the States, or some of them, to be more ambitious in providing further standing limitations or procedural protections.

Let us first review Kopels’ criteria, by category and standard, of preferred requirements. Afterward I will offer my own modest reaction to any toward which I might find problematic. These criteria, due to page width and consequent formatting problems, are set forth in my PV-ERPO_Tlb-1.pdf PDF file.

The only requirements that I might find problematic are, first, providing appointed counsel for the Respondent, and, two, excessive discouragement of No-Knock Raids.

Addressing the latter first, while these entries are certainly subject to abuse, they are occasionally required. If specific restrictions are described for their employment, then these can be prudent.

A confiscation regime is a civil proceeding. Accordingly, the requirement of provision of appointed counsel could be questionable. Nevertheless, since these proceedings could be deemed quasi-criminal, such a requirement could be appropriate.

Other than these, I find Kopel’s requirements reasonable and prudent indeed.

Let us now address our attention to S.7 and S.506 to determine how their standards conform to Kopel’s requirements. While some of those requirements may not be appropriate to either bill, as its purpose is to provide financial grants and only prescribe minimum standards therefor, I will include all of them in the below table, and either fail to note an “X” in either the “Yes” or “No” column if inapplicable, infer a negative answer by its silence, or include an * when the answer is qualified.

Now let us see how well these bills measure up. This comparison, due to page width and consequent formatting problems, are set forth in my PV-ERPO_Tlb-2.pdf PDF file.

As is clear from this PDF file, both S.7 and S.506 are deficient in providing protections deemed by Kopel to be required; while the marks in the “No” column for S.506 are profuse, S.7 also exhibits numerous failing grades. This writer likewise concurs that insufficient protections are afforded to the potential respondents in these proceedings.

S.7 makes some attempts to afford protection to potential respondents, albeit not adequate in this writer’s opinion. Its profuse provisions, the verbosity being far in excess of the sketchiness of S.506, may detract from, rather than enhance, those protections.

S.506, however, makes no attempt to provide more than a facade of procedural due process. It provides only a bare skeleton, delegating to the States — a facile gesture to Federalism as §4 describes it as the “National Extreme Risk Protection Order Law” (emphasis supplied) — the task of defining the procedural requirements, none of which have to be more rigorous than the bare skeleton of S.506.

Nevertheless, an attempt will be made now to compare certain of the respective provisions in, and the anomalies of, these bills. These will be addressed, as above, in a chronological order, and thus not a ranking of the importance of these deficiencies:

1. Commencement
S.506 provides no definition of or limitation upon the persons who could file a petition, but wholly defers to State action. Theoretically, then, if each State acted likewise, any of some-325,000,000 persons could file a petition against anyone else, regardless of their facile lack of knowledge.

S.7 attempts, by its addition of 34 USC 3041(3), to limit those qualified to initiate a proceeding. Still, the breadth introduced by (3)(B), (3)(C)(ii), (3)(E), and (3)(F) allows a wide range of persons who could act from ulterior motives as well as, in some of the cases, have minimal current contact with a potential respondent. Curiously, the proposed addition of 34 USC 3042(b)(5) allows a State to limit qualified petitioners to only law enforcement officers without imposing it as a minimum requirement; by this it almost appears as an afterthought or as a cautious suggestion to the States.

2. Risk of Injury
Neither S.7 nor S.506 impose a high standard of prospective adverse consequences if a confiscation order is not entered. S.7 only requires a showing of significant danger, while S.506 even eliminates the adjective and is satisfied with just a showing of danger. Neither then is consistent with their titles of addressing extreme risk. Further, the criterion of just danger seems overly-broad, would “cast too wide a net”, and often can merely be in the “eye of the beholder”.

3. Burden of Proof
This it would seem is the most-important deficiency in the bills.

While S.7 fortunately does require proof at the adversarial hearing by clear and convincing evidence, it permits the entry of an ex parte temporary confiscation order upon only a finding of probable cause; as this does not satisfy even the preponderance of evidence, much less the clear and convincing, standard, it clearly seems inadequate. This writer considers Kopel’s argument — if an unopposed application cannot at least satisfy a clear and convincing standard then there would not seem much merit to it — persuasive.

S.506 fails even more than S.7 in this regard. For an ex parte temporary confiscation order it only requires a finding of reasonable cause. And for the adversarial hearing it allows entry of a confiscation order by only a preponderance of evidence. Along with its other provisions, S.506 seems to consider requiring confiscation to be the default posture.

4. Ex Parte Temporary Confiscation Order Evidence
If the standard for the burden of proof justifying entry of such an order were high enough, then neither bill would be fatally deficient in this regard. It is of course common practice for Temporary Restraining Orders to be determined and entered based upon affidavit only.

S.7 does require the petition to be accompanied by a sworn affidavit “stating the specific facts that give rise to reasonable fear of significant dangerous acts” and requires for the entry of a temporary order “detailed allegations based on personal knowledge that the respondent poses a significant danger”. It also requires the court to “conduct a hearing, either in person or by telephone”. If it also imposed a higher standard of proof, this procedure would seem sufficient.

S.506, though, in addition to the same inadequate standard of proof, fails to provide for like submission of necessary evidence. It permits the entry of an order if “the application alleges that the respondent poses a danger of causing harm”, with the application being “on a form designed by the court … that … describes the facts and circumstances justifying … an extreme risk protection order … and … is signed by the applicant, under oath.” Those with familiarity with court forms providing for check boxes allows them to apprehend that merely minimal and cursory allegations may well suffice.

5. Surrender of Firearms
S.7 appears to provide for sufficient procedural protection upon this aspect. While not explicit, the various sections providing for surrender indicate that voluntary compliance will be allowed. No necessary confrontation between law enforcement and respondents is envisioned.

S.506 again is less accommodating. As it defines an extreme risk protection order as either “a written order or warrant”, it suggest that No-Knock Raids may be a standard feature of its regime.

6. Storage of Firearms
Both S.7 and S.506 provide adequate provisions upon this aspect. However, S.7 is superior as, in addition to storage by law enforcement and Federal Firearm Licensees, it allows storage by responsible third persons, presumably acceptable to the respondent. Further, S.7 provides an express prohibition upon any action (or inferentially inaction) by a custodian that would deleteriously affect or impair the rights of the owner in the firearms.

7. Notice to Respondent
While both S.7 and S.506 refer to providing notice to respondents, neither prescribes that this will be promptly effectuated, much less within any defined period after entry of a temporary order or the issuance of a hearing notice. This obviously allows for potential abuse and, especially in the case of an ex parte temporary confiscation order, possible dangerous situations.

8. Conduct of Adversarial Hearings
Here also, as with the Burden of Proof aspect, there is an inexcusable failure to conform to procedural due process requirements.

S.7 provides that a court “may conduct the hearing required under clause (i) [the adversarial, not the ex parte, hearing] by telephone …” The respondent then is apparently deprived of the right of cross-examination, and possibly even of sworn testimony being required of the petitioner. This is wholly unacceptable.

S.506, if possible, is even more egregious. It provides no standards for the conduct of the hearing — not even telephonic “testimony”. Apparently, the only evidence it would require of the petitioner is the sworn application. S.506, it would seem, now introduces the novelty of “show trials” into American jurisprudence.

9. Malicious Prosecution Sanctions
S.7 at least endeavors to discourage abuse of its procedures. For it requires the States to enact a statute that any making of false statements under oath in these proceedings would constitute a Felony. While it would presumably apply also to respondents, any petitioner would likewise be subject thereto.

This should discourage any clearly-unjustified petition. However, since some prosecutors conceivably could be loath to prosecute these felonies, provision should have been made also for a civil remedy, as it would be under the control of the wronged respondent. No such provision exists.

S.506, as expected, makes no provision for either.

Other deficiencies exist in both statutes. Among these are some questionable categories of evidence treated as admissible, particularly those recited in S.7. However, this post is verbose enough as it is. Suffice it to say that the foregoing should demonstrate both bills require radical amendments in order to conform to well-established principles of American jurisprudence.

WAYNE A. SMITH
Sanilac County, Michigan USA
06 April 2019

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