Basic due process protections need to be added to red flag bill says ACLU
The Rhode Island ACLU released a report on Friday analyzing the “red flag” legislation (H7688 / S2492) being fast tracked through the General Assembly that would “allow family members and law enforcement officers to petition a judge to issue an ‘extreme risk protective order‘ (ERPO) against an individual who legally owns firearms but who is alleged to pose a ‘significant
The Rhode Island ACLU released a report on Friday analyzing the “red flag” legislation (H7688 / S2492) being fast tracked through the General Assembly that would “allow family members and law enforcement officers to petition a judge to issue an ‘extreme risk protective order‘ (ERPO) against an individual who legally owns firearms but who is alleged to pose a ‘significant danger of causing personal injury to self or others.’”
Red flag laws have been passed in five states: Connecticut, California, Washington, Oregon and Indiana.
The ACLU, in their report, writes:
“People who are not alleged to have committed a crime should not be subject to severe deprivations of liberty interests, and deprivations for lengthy periods of time, in the absence of a clear, compelling and immediate showing of need. As well-intentioned as this legislation is, its breadth and its lenient standards for both applying for and granting an ERPO are cause for great concern.
“The ACLU urges legislators to focus bills like these on addressing serious imminent threats to the public safety while safeguarding robust due process procedures before granting the courts and law enforcement agencies potentially intrusive powers over the liberty of individuals charged with no crime. A narrower bill with basic due process protections can provide the proper balance in promoting both public safety and constitutional safeguards.
“Gun violence is a deeply serious problem deserving of a legislative response, but not, Minority Report-like, at the expense of basic due process for individuals whose crimes are speculative, not real. The precedent it creates could reverberate in unexpected and distressing ways in years to come.”
Rhode Island Governor Gina Raimondo signed a “red flag” policy on February 26. Raimondo is the first governor in the United States to take such an action. Though there is now a policy in place, red flag legislation, such as that proposed by House Speaker Nicholas Mattiello (Democrat, District 15, Cranston), would still be needed, said Raimondo, as there is no law on the books that would allow the police to remove guns from a person’s possession, and Raimondo cannot establish such a policy by executive order. Representative Marcia Ranglin-Vassell (Democrat, District 5, Providence) has introduced similar legislation in the House. Senate Majority Whip Maryellen Goodwin (Democrat, District 1, Providence) is introducing legislation in the Rhode Island State Senate.
The report lists several concerns, including:
- The court order authorized by this legislation could be issued without any indication that the person poses an imminent threat to others.
- The order could be issued without any evidence that the person ever committed, or has even threatened to commit, an act of violence with a firearm.
- The court order would require the confiscation for at least a year of any firearms lawfully owned by the person and place the burden on him or her to prove by clear and convincing evidence that they should be returned after that time. If denied, the person would have to wait another year to petition for return of his or her property.
- The person could be subjected to a coerced mental health evaluation, and the court decision on that and all these other matters would be made at a hearing where the person would not be entitled to appointed counsel.
- With the issuance of an order, police would have broad authority to search the person’s property.
- The standard for seeking and issuing an order is so broad it could routinely be used against people who engage in “overblown political rhetoric” on social media or against alleged gang members when police want to find a shortcut to seize lawfully-owned weapons from them.
- Even before a court hearing was held, and a decision was made, on a petition for an ERPO, police could be required to warn potentially hundreds of people that the individual might posed a significant danger to them.
- Without the presence of counsel, individuals who have no intent to commit violent crimes could nonetheless unwittingly incriminate themselves regarding lesser offenses.
The report notes that the ACLU “believes that there are many ways that the state can try to address this issue through the regulation of firearms without infringing on the constitutional rights of residents to bear arms. For example, we have not opposed efforts to restrict the types of weapons available for purchase, or many other gun control measures that have been introduced in the past and that courts have found to be reasonable regulation of Second Amendment rights.”
Bills banning the sale and use of “bump stocks” will also be heard in both committees, and a ban on assault weapons will be heard in the Senate.
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