2019 Leg Session, Civil Liberties, Constitutional Law, Criminal Justice, Legal, Politics, Rob Natelson

Natelson: Red Flag bills latest assault on Bill of Rights

“Progressives” are using Red Flag bills as weapons in their war on the Bill of Rights.

Red Flag bills are measures authorizing confiscation of firearms, often without notice or opportunity to be heard. Confiscation is triggered by police or individuals (“petitioners”) who claim the owner might be a risk to self or others.

Unless these bills are very narrowly drafted, they obviously threaten the Second Amendment right to keep and bear arms. But they also can be employed to attack the Fourth Amendment right of privacy, the Fifth Amendment right against uncompensated takings of property, the Sixth Amendment right to jury trial and to confront opposing witnesses, and the Fourteenth Amendment’s guarantee of due process of law.

House Bill 19-1177 just passed the Democrat-controlled Colorado House of Representatives. In some ways it is more extreme than a comparable measure recently passed in New York.

In our system of justice, it is unusual for a court to issue an order affecting a person’s rights without giving that person an opportunity to be heard. Such orders generally are issued only to protect the petitioner against imminent danger by preserving the status quo for the short time before an early hearing. To obtain such an order, the petitioner usually must meet a high burden of proof and post bond to protect the other party from potential damage due to false accusation.

HB 19-1177 authorizes orders without notice or opportunity to be heard, and the standards applied are very different. First, these orders do not merely preserve the status quo. They authorize officials to confiscate a victim’s firearms and concealed-carry permit for 14 days.

Secondly, the risk need not be particularly high: Despite the measure’s references to “extreme risk,” the measure requires only “significant risk”—a term that in legal usage can fall well short of probable.

Third, the risk need not be imminent; it can be hypothesized for any future time.

Fourth, the standard of proof is low (a fair preponderance of the evidence). Since the victim is unaware of the proceedings and can’t defend himself, in most cases the petitioner’s allegations and exhibits will suffice.

Finally, the measure requires no bond, even if the petitioner is wealthy enough to afford one.

As a result, innocent people can be stripped arbitrarily of their property and their means of self-defense. The mostly likely victims will be women, the elderly, and the poor. Some petitioners may be evil-doers seeking vengeance or seeking to disarm future prey.

Once the 14 day period expires, if the petitioner decides not to proceed further (perhaps because the victim is now dead), the order expires. But the bill’s sponsors provided no guarantee the victim’s property would be restored in a timely manner, if at all; and it sought to force the victim to reapply for his concealed carry permit.

Only last-minute amendments provided for return of the victim’s property and any concealed-carry permit.

If the petitioner wants the order to last more than 14 days, then the measure requires what it calls a “hearing.” But perhaps on the pretext that this is not a criminal prosecution, the hearing violates normal Bill of Rights standards. There is no jury. The judge may rely on affidavits instead of personal testimony, thereby rendering cross-examination impossible. Some hearings may be held by telephone rather than in person, rendering it more difficult to assess witness credibility.

An order issued after this so-called “hearing” may last nearly a year. Even after it expires, there is no restoration of any concealed-carry permit.

Liberals of a prior generation crusaded to end property seizures without prior notice. Capping their efforts was the celebrated Supreme Court decision of Sniadach v. Family Finance Corp. (1969), which held that even temporary seizure without a hearing violates the 14th Amendment Due Process Clause. Just last month, the Supreme Court’s four old-style liberals joined the other justices in ruling that states could not impose excessive forfeitures of property, even on those found guilty of a crime.

But today’s “progressives” are not the liberals of your daddy’s generation. They have a strong totalitarian streak. They should be kept well away from positions of power. We have given them the fair hearing they would deny others—and they have confessed.

Rob Natelson is senior fellow in Constitutional Jurisprudence at the Independence Institute, a free market think tank in Denver. He has published extensively on the Constitution and is the author of The Original Constitution: What It Actually Said and Meant. A version of this article originally appeared in Town Hall.

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