Red Flag Laws now in the U.S. Senate

Sens. Rick Scott (R-FL), Lindsey Graham (R-SC), Pat Toomey (R-PA), and Bill Cassidy (R-LA) attended the initial discussions that started on Thursday. As governor of Florida, Scott implemented red flag laws and raised the age to own a rifle to 21 after the shooting at Marjory Stoneman Douglas High School in Parkland.

Following are excerpts from a Washington Examiner article titled “Constitutional troubles ahead for any red flag law compromise” by James Sweet published

My comments are in BOLD LETTERS.

“I sat down with Rick yesterday to ask him how he got that [law] passed and how impactful he thought it would be,” Sen. Chris Murphy (D-CT) said in an interview with Politico. “I think it ought to be done at the state level,” Scott responded. Murphy believes federal legislation on red flag laws could involve grants that assist states in implementing the policy.

Grants mean money and should not be an incentive or deciding factor for passing State Red Flag Laws.

Scott denied discussing “gun-related legislation” in his talks with Murphy. “Senator Scott is focused on how we can continue to make schools safe,” Scott’s spokesman said. Yet his presence at the bipartisan discussions held today raises an important question: Is there a compromise on red flag laws in the works?

Scott did us no favors in signing the FL Red Flag Law with its age restrictions on 18-20 year olds owning/possessing long guns and its unconstitutional Risk Protection Order taking up 48 pages of the 152 page law (SB 7026) and modeled after Oregon’s draconian law. As written this law does not provide Due Process. How can a seizure 2 weeks before a hearing be considered Due Process. We already had methods to seize guns including the Baker Act, Marchman Law and Court Injunctions where violence occurs. SB 7026 passed by only 1 vote in FL Senate and our own Senator Keli Stargel was the deciding vote.

In Florida, a petition for a risk protection order must be filed to start the process of removing guns from an individual’s possession. Once a petition is filed, the petitioner and respondent attend hearings to argue whether the order should be issued. “Such petition for a risk protection order does not require either party to be represented by an attorney,” according to Florida’s legal code.

If a person cannot afford a lawyer, he or she is not appointed one.

The quote highlighted in italics above is a gross misrepresentation. Law enforcement file the petition and are represented by their attorney at the hearing. In fact, some counties, like Polk have had so many RPO petitions filed that they have hired extra attorneys on contract to handle the cases. The respondent, on the other hand, must hire their own attorney if they expect to win against the accusation they may be a threat to themselves or other(s) sometime in the future.

Let’s also not forget the following facts:

  • The ex parte Risk Protection Order (RPO) is issued without notice to the respondent and can occur 24 X 7. This is a violation of the 4th Amendment.
  • The “hearing” at which the respondent is present does not take place until 2 weeks after the seizure (this is not Due Process under the 5th and 14th amendments).
  • This process does not recognize the principle of law that a person is innocent until proven guilty.
  • The rules of evidence do not involve “beyond reasonable doubt” but rather “reasonable suspicion” that the respondent may be a threat.
  • FL’s law calls for the respondent to be immediately entered into the state and federal criminal data bases (even though the RPO is supposedly a civil and not a criminal process, e.g. no crime has been committed). There is no provisions to remove the respondent found innocent from these lists.
  • An RPO can be issued up to a year after reporting a person as a threat.
  • If a respondent is found to be not a threat there are no provisions for prompt return of his/her firearms, ammo, permit nor that this property be returned in the same condition as when seized.
  • Since June 2018 when this law went into effect in Floirda of the over 5,000 RPOs issued, approximately 13% or 650 of those accused respondents have been found not to be a threat at the after the fact hearing – this is far too many and demonstrates 3 possibilities – the accusers lied and/or the LE sending the petition to Judges did not conduct a through investigation and/or the Judges rubber stamp these petitions. Not one of the false accusers have been charged with the 3rd degree misdemeanor called for in the law.
  • This law also facilitates the muting of 1st Amendment law of freedom of speech as people become fearful of stating anything that could be misconstrued as a threat. Furthermore, this law can easily be misused as a weapon against political opponents.

We don’t need Red Flag Laws to provide desperate gun control. What we need are common sense actions I previously addressed in a Call to Action 060322 against more Gun Control.

©Royal A. Brown, III. All rights reserved.

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