Saturday, February 2, 2019

New York’s red flag bill raises red flags

Last week, the New York Senate and Assembly passed four bills focused on gun control that Governor Cuomo is expected to sign into law, maybe as soon as this week.

Among them was the so-called red flag bill which, per the Senate’s synopsis, “establishes extreme risk protection orders as a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.”

The bill allows family members, school administrators and their designees (teachers, counselors, nurses) to petition a court and then prove that the allegedly-dangerous party is likely to engage in conduct that would result in serious harm to self or others. Police officers were included in the list of petitioners, but they’ve always possessed the ability to petition the court given they dotted the “i”s and crossed the “t”s…which they, and any of the other parties, would not have to do under this bill.

For anyone who values personal liberty, due process, and the importance of just law enforcement, this should raise some serious red flags.

Despite what the lawmakers might want you to believe, families and school officials, just like every citizen, have always had the ability to address threats. It’s simple: see something, say something, call the cops. Our Sheriffs, their deputies, and their investigators are empowered to investigate, identify, and mitigate threats. It’s their job, their calling. They’ve been trained in these matters and they have the resources and wherewithal to follow through on them and assume the risk that comes from it while making sure it’s done in a manner that protects the rights and safety of all parties involved as well as those of the greater community.

Despite that, under the red flag bill regular citizens can and are encouraged to circumvent the local police and directly engage the courts. The state is enabling those who know nothing of proper policing of public safety to propose to the court that someone is a danger. The individuals making these accusations need only to provide the court a compelling reason that probable cause exists -- without the actual hard evidence that would have been collected by police.

This opens the door to so many misinterpretations -- if not purposeful abuses -- of fact. Teachers aren’t criminal investigators; now we want them to add that skill set, with a lack of appropriate training, to their large list of responsibilities? Some folks are inherently fearful of gun ownership; so who’s to say that the very presence of safely-held and safely-used guns in a household isn’t perceived as a threat to them? Many people hold vendettas; what’s preventing an angry ex-wife or a combative school board member from petitioning the courts to remove guns from one’s home?

If any of those individuals do follow through with a petition the respondent is not granted due process – not an investigation and not even a proper and full defense because it’s a hearing-based system. He can’t even have his accuser investigated for potential fabrication. All initial power is granted to the petitioner. The respondent -- now guilty before proven innocent -- can pursue an appeal, but as anyone familiar with the judicial systems knows that’s a time-consuming process that can take months, even years.

Additionally, the respondent is entitled to submit one request – just one -- at any time during the effective period of an extreme risk protection order, for a hearing at which said respondent bears the burden to prove, by clear and convincing evidence, any change of circumstances that may justify a change to the order. How can the respondent disprove accusations that never had a legitimate investigation in the first place and could have been founded upon lies?

In either case, the guns have already been removed from that person’s possession without due process -- guns that are a constitutionally-recognized right, firearms that may have been necessary for personal protection and/or putting meat on the table.

The red flag bill, despite its alleged purpose, is also disingenuous in its urgency. The whole process for the petitioner and court is allowed a 3 to 6 day window in which to take place. If the alleged gun nut was such a danger to society, then why not address the threat that very day? A lot can happen over a few days if someone is actually unhinged.

This takes us back to square one. If an individual is a genuine threat, if red flags are going up, get the police involved. They can address the potential threat immediately and properly. And, by doing so, they can initiate a more appropriate investigation and the accompanying legal review, trials, and due process.

We already have the legal framework in place to address red flags. Let’s use that before the jumping headfirst into the Legislature’s bill. Public safety and personal liberty will be better served.

From the 04 February 2019 Greater Niagara Newspapers and Batavia Daily News

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