NY Red Flag law unconstitutional

[zukiphile]

Originally Posted by TG

So, there is, in your opinion, no other way to get guns out of the hands of say your crazy uncle other than committing him to an insane asylum? We can't come up with anything short of that would pass COTUS muster?

If his crazy uncle is really crazy, the man might not need to be locked up, but he should be protected from telephone fraudsters and be sure that someone is paying his mortgage and seeing to his medical care. He may just be incompetent and need a guardian. He shouldn't be driving, possessing arms or voting.

I believe every state has that in some form.

We also have criminal process where someone has committed "menacing" by threatening someone. That's a criminal charge for a past act.

RFLs are something different. They aren't really competency hearings, but are about someone's apprehension that the person is potentially dangerous. They aren't criminal hearings, but result in a punishment for something one hasn't done and have fewer safeguards.

[DaleA]

The big things I have against the idea of red flag laws, as currently implemented is two parts. One part is the ignoring of due process and several long established and fundamental principles of our justice system, and the second part is the hypocritical (to me) idea that removing guns (or any other "tools") and leaving the potential bad actor free to come up with, and do harm in some way, using some other tools. WHILE telling us that NOW we're "safe", because they took the gun(s) away from this dangerous person.

Amen!

The part I've highlighted is what I think people should consider and then say "just forget about it".
BUT
What annoys me a lot is that is NOT a legal consideration that can be used to block the law.

P.S. My state, MN is considering allowing the person to show up in court to contest the confiscation order. The way the MN house, senate and governorship is currently stacked, more gun control laws could get passed this year.

[Tennessee Gentleman]

Originally Posted by 44 AMP

That wouldn't be a good thing at all....I'd much prefer to actually HAVE my day in court, thank you.

Well, you may get to see that. The Tennessee Governor has asked the legislature to craft such a bill. And the Legislative Leadership is not opposing it. You won't find too many states that are more friendly to guns than TN. We'll see soon.

[Tennessee Gentleman]

Originally Posted by DaleA

and leaving the potential bad actor free to come up with, and do harm in some way, using some other tools.

I don't think that 90 something pound little girl who shot up the school would have tried that without a gun. I think had she been unable to get a gun she would have just killed herself. Having the guns gave her the ability that say a samurai sword would not.

[ballardw]

Originally Posted by Tennessee Gentleman

I don't think that 90 something pound little girl who shot up the school would have tried that without a gun. I think had she been unable to get a gun she would have just killed herself. Having the guns gave her the ability that say a samurai sword would not.

Could have waited until kids were getting out of school and just drove into a crowd.

Or <insert otheralternate method of mayhem> which are still available to anyone the way these things are being implemented.

[Aguila Blanca]

I can remember at least two cases, in my state alone, in which women were under protective orders and were shot and killed by their soon-to-be ex-husbands. This was pre-Red Flag era by a couple of decades, but a protective order was still a protective order, and the male shooters were nonetheless prohibited from possessing firearms.

Except that the prohibition was (obviously) nothing but an illusion. So if a conventional protective order is ineffective, what magic is supposed to make a "red flag" protective order any more effective?

[zukiphile]

Originally Posted by TG

I don't think that 90 something pound little girl who shot up the school would have tried that without a gun. I think had she been unable to get a gun she would have just killed herself. Having the guns gave her the ability that say a samurai sword would not.

This posits the gun as the "but for" cause of the crime. But for the firearm, it wouldn't have happened.

But for the ideas expressed in her manifesto she might not have been so angry. May we restrict communication of those ideas?

But for the hormonal therapy that is commonly thought to contribute to rage, she'd likely not be angry enough to kill. Do we need to prohibit whatever course of meds she was taking?

"But for" analysis relies on a hindsight the benefit of which prospective laws never have. Allowing government to use it to mold prospective legal prohibitions shrinks the sphere of freedom on which the government is not entitled to intrude.

[Metal god]

Amen , zukiphile !

[44 AMP]

I think had she been unable to get a gun she would have just killed herself

You can think that, doesn't make it any more likely than what I think, which is she could have gotten another gun(s) and done it anyway. OR she could have chosen some alternative method, like chaining doors shut and setting the building on fire, or any of many other possibilities.

Removing the most obvious and easiest tools (in this case, guns) to use could be a "psychological stop" the bad actor MIGHT decided to quit and give up the entire idea.

OR they could stay determined and just have to work a little harder to do what they want to do.

This posits the gun as the "but for" cause of the crime. But for the firearm, it wouldn't have happened.

THAT WAY

The people making that argument always leave off those two little words, which change an assumption, based only on their personal belief into a statement of plausible fact.

"It wouldn't have happened that way".

MAYBE it would not have happened at all, or MAYBE it would have, in any one of thousands of different ways. They THINK that without the gun, it would not happen, but no one KNOWS.

No law, no order, nothing written on paper can protect anyone from someone determined enough to break the law.

Only physical acts CAN.

and only the right physical acts WILL.

[Aguila Blanca]

Originally Posted by Tennessee Gentleman

I don't think that 90 something pound little girl who shot up the school would have tried that without a gun. I think had she been unable to get a gun she would have just killed herself. Having the guns gave her the ability that say a samurai sword would not.

I have to disagree.

Are you aware that the single most deadly school massacre in U.S. history did not involve firearms? No? Fire up Google and search "Bath Consolidated School massacre."

Then, while you have Google up, do a search on school+knife+attacks+China. Chinese citizens can't own guns, so by your logic Chinese schools must all be havens of complete safety. However, the reality is that such is very much NOT the case.

Here's a teaser to get you started: https://en.wikipedia.org/wiki/School_attacks_in_China

[44 AMP]

If you think taking guns out of the picture is all we need to do to be completely safe from harm, I suggest a date.

September 11, 2001

[Tennessee Gentleman]

So, I get it with all the "well she could have" manufactured poison gas (ala The Anarchist Cookbook), rented a bulldozer and ran it into the building or thru the parking lot, built a bomb (the Columbine killers did that but it didn't hurt anyone) but school kids are not getting hurt that way. They are getting shot with guns and just MHO but saying that well she could use a samurai sword to the voters prolly won't get you much. But go ahead if you wish. It's about guns cause that's what they are using in these cases.

Now, I fully agree with the 9/11 example and I argue to my anti-gun acquaintances that after 9/11 we didn't ban air travel but we did beef up security and change (forever) the flight travel experience. I think we all know that the real way to reduce school shootings is with planning, practice (just like fire drills), hardening or schools and armed security. It's become a sad fact of life in these days just like terrorism part of our lives became after 9/11. In fact, many kids were saved because the school had very good "passive" measures that kept the killer at bay. 152 rounds she fired and only killed 6.

However, we are also reading that in many cases (not the Nashville one) that loved ones know that their relative is crazy and has guns and so the question is going to be asked, how can we deal with that more effectively.

As I stated earlier, the Governor (Very gun friendly) has asked the Legislature to come up with such a law. I think if one can be crafted that has due process and punishes false reports then it might serve as a better model than the now ex parte, no Due Process, SWAT at your house the next day versions we are seeing in Blue States.

I am a 2A activist and have met with media folk and anti-gunners in local sessions but I also, look for solutions to problems. I will never advocate unilaterally conceding to any anti-gun demand (Nash Equilibrium explains this) but I also won't stick my head in the sand and say "nothing to see here". So, don't misunderstand my position.

There is one thing I think all of us, liberal and conservatives gunner and anti gun want and is therefore common ground. We want these mass shootings to stop. I think we have better ideas than the antis.

[Metal god]

The point was not to ignore guns because it “could” have been something else . The point is we have a second amendment therefore there will always be guns here even if you ban the sale of all of them from this day forward . There will still be 500 million left and I only have like half of them haha . The other point that you may not understand is laws and bans DO NOT prevent ANYTHING ! Are system is designed in a way that you must break a law to be prosecuted for breaking that law . Name one law that actually prevents anyone from doing something , because of the law/ban its now impossible to do the thing . You can’t because they don’t. Speed limit is what ….. and yet I break that law routinely. Isn’t it already illegal to kill somebody regardless of how ? And yet …. So what specifically would you propose if you were King and bound by our constitution to STOP people from using guns unlawfully???? Im all ears :-)

Now think of all the other ways people can cause harm with out guns . Bad people will do bad things regardless and even if you stopped one there are numerous more that won’t stop .

If this was about saving lives they would ban all alcohol. How many people are killed by people using so called assault weapons every year ? Less then 100 ! How many people are killed by drunk drivers or other alcohol related events every year ? Over 10k every year and yet nobody is on the hill top screaming ban drinking alcohol? Where’s all the money in the anti alcohol movement?

Not a a good example , how about malpractice???? Do you have any idea how many people die every year do to doctors screwing up . Hundreds of thousands every year !!!! Lets get real on what this is about . This is only about taking guns from law abiding citizens and nothing to do with saving lives . If it was about saving lives there are much more productive ways to spend all that anti gun money to save lives . Id suggest anyone that think the gun control groups are trying to save lives . Ask your self is that the best most efficient way to do so , or is there an ulterior motive?

[44 AMP]

How many people are killed by drunk drivers or other alcohol related events every year ? Over 10k every year and yet nobody is on the hill top screaming ban drinking alcohol? Where’s all the money in the anti alcohol movement?

They pretty much shut up and went away after 1933.

[Metal god]

They pretty much shut up and went away after 1933.

Absolutely , the issue is that there is NO enumerated right to have access to alcohol in the bill of right . If it was about saving lives they can save thousands a year with out any constitutional issues by simple outlawing alcohol . They won't because both sides of the gun control debate like to drink . In short they'd rather get there buzz on then actually do something that would make a substantial difference in saving lives .

I categorically refuse to except the anti gun argument that they want to save lives .

[zukiphile]

Originally Posted by TG

Now, I fully agree with the 9/11 example and I argue to my anti-gun acquaintances that after 9/11 we didn't ban air travel but we did beef up security and change (forever) the flight travel experience.

And not for the better.

That episode produced some of the same problems of security theater, looking to government for an answer and safetyism. Making it more difficult to dress properly when flying, adding delays, and confiscating bottles of water and toothpaste at the hands of another layer of federal government is UBL practical joke on us all.

Children are hit by cars around schools and some of them die, but we don't ban cars within the vicinity around school because the risk is slight and the cost would be large.

There is public policy discussion about banning guns or making people take off their shoes and belts to get onto an airplane because most people don't think (wrongly) it affects their lives much.

Originally Posted by Mg

I categorically refuse to [accept] the anti gun argument that they want to save lives .

On the nose. Children being murdered inside schools evokes a lot of emotion, but it's a rare cause of childhood death. We'd save more young lives if we banned smart phones and candy bars. If the cause of school shootings is largely social contagion, the fascination with it is part of the cause of the events, which are also exploited for policy backed by the same camp who wanted to regulate/ban arms for being too cheap, too concealable, and too easy to fix a bayonet to.

Originally Posted by TG

We want these mass shootings to stop.

I would like murders of all sorts to stop. I wouldn't restrict that to shootings or multiple homicides. Being the one fellow pushed onto train tracks would also be regrettable. If the conversation is fixated only on mass events that are shootings, it's fair to ask why. Shootings aren't even illegal; murders are.

[Tennessee Gentleman]

Originally Posted by zukiphile

And not for the better.

That episode produced some of the same problems of security theater, looking to government for an answer and safetyism. Making it more difficult to dress properly when flying, adding delays, and confiscating bottles of water and toothpaste at the hands of another layer of federal government is UBL practical joke on us all.

Perhaps you have a point as I hate the extra security too. But we haven't had a repeat have we? Also, we've learned to live with it just like we should do in protecting our schools. Fire Drills, Duck and Cover (in my day) and now active shooters.

Originally Posted by zukiphile

Children being murdered inside schools evokes a lot of emotion, but it's a rare cause of childhood death.

True again but you miss the point. That it is happening with a fair amount of regularity and it is horrific to the public. Might make sense to take steps to stop it rather than saying children get killed by swallowing Legos or what ever.

[Tennessee Gentleman]

Originally Posted by Metal god

How many people are killed by drunk drivers or other alcohol related events every year ? Over 10k every year and yet nobody is on the hill top screaming ban drinking alcohol? Where’s all the money in the anti alcohol movement?

More voters like booze than they like guns.

[zukiphile]

Originally Posted by TG

Perhaps you have a point as I hate the extra security too. But we haven't had a repeat have we? Also, we've learned to live with it just like we should do in protecting our schools. Fire Drills, Duck and Cover (in my day) and now active shooters.

"We've learned to live with it" reads to me as the government took something from us and we aren't getting it back. It isn't to our credit that we think it's OK for a TSA minion to take our fingernail clippers.

If we were focused on stopping schools from being hunting grounds for rare murder scenarios, maybe we'd stop disarming the people in them.

Originally Posted by TG

True again but you miss the point. That it is happening with a fair amount of regularity and it is horrific to the public. Might make sense to take steps to stop it rather than saying children get killed by swallowing Legos or what ever.

A fair amount of regularity? I don't think that's an ideal description of something that happens and captivates 24hr news channels once or twice a year. Are we still very worried about post office shootings? That was a genre before Columbine, and there have been a bunch since 1986, but I'd be hard pressed to say they happen with fair regularity.

Are individual murders not horrific to the public? Is something sadder than a child being killed by a car in the street? Isn't it disturbing to them to see someone pushed in front of an oncoming train?

Lots of things are horrific. Feeding those feelings with a new law each time isn't a reasonable way to make laws.

We do take steps to stop these events. We make it a crime to shoot people without provocation or defense. We have prohibitions on felons or anyone subject to a restraining order buying from licensees. We have probate and commitment processes for people who can't look after themselves. Turns out one of the most reliable ways to stop them is to shoot the murderer.

[Paul B.]

"Turns out one of the most reliable ways to stop them is to shoot the murderer."

Ahh yes, but then you've violated their civil rights. We can't be having that, now can we?
Paul B.

[44 AMP]

Turns out one of the most reliable ways to stop them is to shoot the murderer.

All that really does is stop one individual from doing it AGAIN. Not that it is a bad thing, but it has very little or no effect on other people committing murder, these days.

We have had laws against killing people for fun or profit about as long as we have had laws. Hasn't stopped murder, yet, doubt it ever will.

Mankind is in a position unique in history now. Our technology gives instant continuous communication access to any and everyone on the planet connected to "the net" or "the web".

We could argue about people being more or less gullible than they were in the past, but there is no argument that we are exposed to information (of ALL types) at a level much higher than ever before in history.

Extremism is the order of the day now, probably because people pay more attention to extremes and so, extremism (about nearly everything) sells.

FEAR SELLS.

Everything now is "the end" of life as we know it. The end of our democracy, the end of civilization, the end of all life on earth, what ever fantasy the snake oil seller is pushing, we all have to do whatever they claim to be the solution (and pay for it) or its "the end of all!!"

The way things are being reported (including the language used) and the fact that we get it repeating endlessly 24/7/365 is, I think a large factor.

More specific to this discussion, mass shootings, and in particular those at schools where children are murdered.

What is a mass shooting?? The definition in common use at this time seems to be 4 or more people shot. (or struck by bullets). Using that standard, I hear we have had over 1,100 mass shootings this year alone. Often this is mentioned in the same breath as school shootings, with no mention at all of what a tiny fraction of a percent of the total that school shootings actually are.

Few people care if criminals shoot each other in job lots (the "good riddance" factor) but do care when innocent people (who might be themselves) are shot. And the murder of children is the most horrifying of all.

What is the answer?? What will stop this?? "Common sense" gun control won't do it. No matter how often we get told by some "expert" or study that it will. Consider this fact, we have now, more and more restrictive gun control laws than ever before. Much, much more than we had in the past, and yet at the same time, we have a much worse problem with people being shot and killed than we had then. I sense a correlation there.

Many say the increase in violence with guns is because guns are "easy/easier" to get and because there are so many. Others say there are so many because the public is buying them in greater numbers, possibly because we are being scared all the time by the news, and are pushed towards or even into "panic mode" 24/7 and people want a gun for protection. I think that a plausible idea.

As to "easy to get", not legally. 100 years ago (just to pick a number) what was the legal requirement that had to be met in order to buy a gun??

Having the money to purchase it. Period. And all the paperwork involved was a sales receipt. And, it could be mailed to your door through the US post office.

That's not even remotely the case today. Are we better off now?, safer?? Doesn't seem so to me.

What are we offered as solutions?? Feel good band-aid approaches to the problem usually. Like red flag laws.

Where is it proper to punish people because you THINK they might do something bad?? Are we to assume the govt has the ability to read minds, and be infallibly correct reading what they see?? That can only happen in fiction. It's simply not right to seize property or persons and justify doing that because of what the person hasn't done but COULD do.

isn't that a form of "profiling"??? Something we are repeatedly told is a BAD thing????

Don't red flag laws also violate the idea of equal treatment under the law??

Additionally complicating the matter is that ALL psychological evaluations depend entirely on what the individual being evaluated says. Whether done by police or medical professionals, they cannot read minds, and must rely on what they are told by the person being evaluated. And, sometimes, people lie....some can do it quite convincingly.

Not all that long ago, there was a case where the police did a "wellness check" on a guy concerns had been raised about. They talked with him, and decided he was ok, a little down because he couldn't seem to find a girlfriend, but otherwise ok. The next day that guy shot several people, stabbed several sevearal people and ran over some more with his car. I guess that evaluation was an "Oops!"

The Virginia Tech killer was actually under treatment for mental issues, but the medical professionals didn't report him as a danger because they didn't think he was....30 some dead...another "ooops" moment, I guess...

I don't have the answers, all I can do is look at what has, and hasn't worked though out history and today. And what I see today constantly reminds me of the currently popular humorous definition that says insanity is doing the same thing over and over and expecting different results....

We need to do something different. I can't say what the right thing to do, is. But I can say I don't think red flag laws, as currently written and enforced is the right direction to go in.

[Aguila Blanca]

Originally Posted by zukiphile

"We've learned to live with it" reads to me as the government took something from us and we aren't getting it back. It isn't to our credit that we think it's OK for a TSA minion to take our fingernail clippers.

It ain't just the TSA.

This very morning I attended the naturalization ceremony for a friend of my late wife. The ceremony was held in the federal courthouse. I knew enough to leave my folding knife in the car in the parking garage, but the gal being naturalized didn't know. As we were leaving the courthouse after the ceremony, she had to detour back to the security station ... to reclaim her nail clipper.

[Tennessee Gentleman]

Originally Posted by zukiphile

"We've learned to live with it" reads to me as the government took something from us and we aren't getting it back. It isn't to our credit that we think it's OK for a TSA minion to take our fingernail clippers.

Small price to pay for having zero planes fly into skyscrapers killing thousands I would say.

Originally Posted by zukiphile

If we were focused on stopping schools from being hunting grounds for rare murder scenarios, maybe we'd stop disarming the people in them.

Or rather (and better) arming and training those in them who wish to serve so.

Originally Posted by zukiphile

A fair amount of regularity?

Yeah I would say depending on who you believe for the numbers. dozens or hundreds since Columbine. Certainly many many more than happened in my day.

Originally Posted by zukiphile

Are individual murders not horrific to the public? Is something sadder than a child being killed by a car in the street? Isn't it disturbing to them to see someone pushed in front of an oncoming train?

Not like school shootings. Not even close.

Originally Posted by 44 AMP

We need to do something different. I can't say what the right thing to do, is. But I can say I don't think red flag laws, as currently written and enforced is the right direction to go in.

So back to my original thought, is it possible to write such a law and enforce it in an acceptable and lawful way?

Hint, Saying no it's hopeless prolly won't help our case and we will have them foisted on us and they will certainly be worse than if we put our noodles to work and figured it out.

[44 AMP]

I do not think you can write such a law that will pass Constitutional muster However if you were to try I would suggest you forget about inanimate objects and focus on the only real threat, the PERSON.

And additionally, I think that any court ruling designating a person to be a threat to public safety must require some level of investigation before being granted. Such a ruling should never be granted solely on the word of the person applying for the Extreme Protection Order.

And, in order to make that work, the law would have to set up funding and organization in the justice system specifically to handle that in the most expeditious manner possible.

Not easy, not cheap. What else has even a glimmer of protecting the rights of the innocent (and remember until conviction ALL are innocent) and giving some hope of keeping abuse of the system to a minimum.

The Constitution authorizes the seizure of a person under an official issued warrant. (Arrest warrant). And, additionally we have rules about how long people can be held in custody WITHOUT being arrested.

Further, we already have an approved "hold for evaluation without arrest or charges" period of 72hrs (as I understand it),

If a person is reported to be a threat (ERPO applied for) WHY aren't we doing that? Rather than take guns and leave them on the street, why aren't we holding them under the 72hr "psych eval" and actually evaluate if they ARE a threat, or not?

Why don't we ever hear about this possible course of action? THAT system is already in place. Why isn't that better than just seizing guns, declaring "we're safe now" and letting the (possibly) dangerous person go free???

Thoughts??

[zukiphile]

Originally Posted by TG

Small price to pay for having zero planes fly into skyscrapers killing thousands I would say.

The french don't have people flying airliners into Notre Dame, but they let you keep your nail clipper and shampoo. We should all have the modesty to know that it isn't our place to decide what others should pay for our speculation about safety.

Originally Posted by TG

Not like school shootings. Not even close.

You don't really mean school shootings though, do you? You mean school murders, because when the school [located] shooting is the shooting of one of these disturbed murders, we all sigh in relief. "School shootings" and "mass shootings" are the chosen locution of people who have an existing policy goal. Viewing the issue through their constructions may lead people to their conclusions.

I think it's useful to distinguish between amorphous levels of asserted public horror and stories that have a lot of coverage because they are seen as the most emotionally manipulative for a specific policy position.

Originally Posted by AB

It ain't just the TSA.

No, it isn't just the TSA, but the TSA and Homeland Security arose from an initially modest proposal for better airport security. Only after there was consensus that this would be a good idea was there a demand that it must be a federally payrolled service with an additional unionized federal workforce.

Originally Posted by TG

Hint, Saying no it's hopeless prolly won't help our case and we will have them foisted on us and they will certainly be worse than if we put our noodles to work and figured it out.

If you don't know what you are trying to figure out, you don't have a shot at meeting a reasoned goal. If the goal is to just add another law and make the sphere of liberty a little smaller, that's a process without a logical end.

Originally Posted by TG

So back to my original thought, is it possible to write such a law and enforce it in an acceptable and lawful way?

What is the gap in existing laws you are trying to close?