A civil right is a civil right
Even if you don't like it.
In August of 2019, on the old blog, I wrote an open letter to Representative Dan Crenshaw regarding his support of so-called “red flag laws”:
Dear Representative Crenshaw,
I'd like to take a moment of your time to talk to you about your "Red Flag Law" proposition; specifically about two concerns that I, and every other gun owner in these United States has.
The first is that while I appreciate your assurances that there will be "robust due process protections", I'm going to respectfully opine that you are incorrect. There will be no "robust protection" of due process for gun owners, no matter what you believe.
The reasons are the same reasons that there are no "robust protections" for those persons who are the subject of Emergency Protection Orders.
You see, Representative Crenshaw, "robust protections" means nothing more than a bucket of warm rodent expectorant if the police, the District Attorneys, and the judges decide it doesn't.
If you have sanctions against malicious filing of a Red Flag order, what good are they if the police refuse to investigate allegations of misuse? And they will. Oh, if they're called on the carpet about the lack of investigations, they'll look sorrowful and tell you that they just don't have the manpower for that sort of thing.
You can't look me in the face and tell me that the San Francisco Police Department is going to do a damned thing about those damned dirty gun-owners getting screwed over by false Red Flag orders.
Where is the "robust protection of due process" if the police aren't sanctioned for refusing to investigate?
If you have sanctions against misuse of Red Flag orders, what good are they if the District Attorneys refuse to accept a case of misuse of Red Flag "In The Interests Of Justice"?
And they will. Their explanation will be that they're worried that prosecuting malicious Red Flag cases might deter someone from a legitimate filing, an explanation they'll give with a pious look upon their face.
You can't guarantee the gun owners of this nation that the Seattle District Attorney is going to think that bad Red Flag orders aren't just something those barbarous gun-owners just have to endure.
So where is the "robust protection" if the DAs aren't sanctioned for refusing to accept cases involving malicious use of the Red Flag law?
When the judges dismiss fraudulent Red Flag cases from the bench — again, "In The Interests Of Justice" — where is the "robust protection of due process"?
You can't tell me with a straight face that there's a judge in Boston, or Chicago, or New York City that gives a damn if gun-owners get screwed over by an unlawful Red Flag order.
And your answer cannot be: "I don't know". This is your dead albatross, Representative. "I don't know" is an unacceptable answer. You'd better figure it out right the hell now.
Second is Mission Creep.
Let us postulate that you get a Red Flag Law passed that does everything you promise it will.
Doubtful, but let's imagine this.
So, what happens next Session when the gun-grabbers find a Law That Absolutely Must Be Passed, and stick an extra line in there about expanding your Red Flag Law?
Now what?
You have a bill that no congressman in their right minds is going to vote against ... and it expands your Red Flag law to allow Internet acquaintances to petition for a Red Flag order.
For better or worse this is your dead albatross, Congressman — what are you going to do when (not if) gun-grabbers start "fixing" your Red Flag Law by adding amendments and addendums into "Can't Not Pass" bills?
"I don't know" is not an acceptable answer, Representative Crenshaw. Figure it out now.
I sincerely believe that you are trying your best in a sticky political situation, but I think your Red Flag Law is going to wind up biting a whole bunch of people in the arse.
I don't really care if it torpedoes your career, but I do care that your misguided desire to "Do Something" is going to bite a lot of American gun owners in the butt.
I doubt if you'll ever see this, but if you do, I hope you at least think about the issues I have brought up in this letter.
Cordially,
LawDog
While I seriously doubt that that letter had anything to do with now-former Rep. Crenshaw losing his comfy, tax-payer-funded position, a small, vicious part of me hopes it had some small effect.
Anyhoo, we currently have an absolutely wonderful example of the first part of that above letter happening in Florida.
Like him or hate him, James O’Keefe is a bit of an oik. However, regardless of your opinion of him, he has a civil right1 to own firearms.
Matthew Tyrmand, a former member of the Project Veritas board — who may, or may not, have issued threats against O’Keefe — who lives in Brooklyn, New York filed a domestic violence restraining order against O’Keefe — who lives in West Palm Beach, Florida. About 1,220 miles apart. The civil case was, apparently, for stalking.
In furtherance of this civil case, on 23 APR 26, officers from the West Palm Beach (FL) Police Department confiscated Mr. O’Keefe’s firearms in response to a Risk Protection Order2 issued by the civil court.
About 24 hours later, another judge overturned the Red Flag seizure of the firearms, and ordered them returned.
Two notes here:
1) I will bet a sack of doughnuts that Tyrmand will face absolutely zero sanctions for what appears to be a blatant misuse of a Red Flag order. I will further bet that there will be absolutely zero investigation to determine if he did, in fact, deliberately misuse a court order to strip someone of a civil right. And if asked why a person who has allegedly used the legal process to blatantly violate the civil right of another American is freely allowed to do it, law enforcement, prosecutors, and judges will whinge about using one of the excuses I listed in my above letter to Rep. Crenshaw.
Folks, if you want people to take your idiot Red Flag Laws seriously3, you better damned well start stomping hard on obvious flagrant abuse of them. And by “stomping hard” I mean honest criminal investigation of alleged misuse/abuse of them, and honest prosecutorial effort. A jury finds you guilty of abuse/misuse of a Red Flag law — violating someone’s civil right — then you get a felony conviction on your record.
Period.
2) Somebody4 is going to snivel that O’Keefe suffered a “minor, temporary inconvenience”, and that a “minor, temporary inconvenience” balanced against “the interests of public safety” is no big deal.
Goodness. A civil right is a civil right. If “the interests of public safety” outweighs one civil right, then “the interests of public safety” outweighs all civil rights.
I will guarantee you that in every city of 100,000 population or more there are multiple locations responsible for the majority of crime in that city. There are multiple locations responsible for more deaths via drug overdose (“Interests of Public Safety”), and more deaths via drug turf wars than all of O’Keefe’s firearms put together.
I mean, if “the interests of public safety” are worth a 24-hour “minor, temporary inconvenience” suspension of James O’Keefe’s 2nd Amendment civil rights, then surely “the interests of public safety” are worth a 24-hour “minor, temporary inconvenience” suspension of someone’s 4th Amendment civil rights, right?
See how this works? Red Flag laws is a road we do not want to go down. Civil rights are civil rights, and we don’t get to treat one as sacrosanct, and another as inconvenient. If one requires probable cause to be suspended, than they all require probable cause to be suspended.
If a civil right can be stripped on an allegation in a civil court5 — no probable cause required — that starts a ball rolling nobody really wants to deal with.
Y’all need to listen to me on this one … but you won’t.
Ian
Yes, the 2nd Amendment is a civil right.
A Red Flag Law.
Not me — red flag law are bloody stupid — but the Public in general.
The Usual Suspects.
Remembering that the burden of proof in a civil court is “preponderance of the evidence” instead of the “beyond a reasonable doubt” burden of criminal court.
Why would we expect that? How many other false accusations get punished? The child support industry would collapse if false accusations by women were punished.
First let me say that "shall not be abridged" should be the end of the story. But second, I"m trying to picture gov't types NOT abusing red flag laws. Look what they do with "Civil Asset Forfeiture.