Warrantless search case involving gun confiscation

[Aguila Blanca]

The difference I see that distinguishes a warrant from a RFL seizure order is that the warrant requires an allegation of probable cause that a crime has occurred. An RFL seizure order revolves around an ex parte application about a applicant's misgivings about future conduct. That indicates to me that there is no probable cause that would have been sufficient for a warrant in the RFL initial hearing.

I see the probable cause standard of allegation lacking in both warrantless seizures that fit no recognized exceptions and RFLs as the common thread that could support a 4th Am. challenge to an RFL order.

I agree. I don't think an ex parte hearing, or an order issued pursuant to same, amounts to even "reasonable" suspicion, let alone probable cause. I am not a fan of and I am not defending red flag laws.

In the context of discussing the Caniglia case, though, I think that from the perspective of a police officer a court order issued pursuant to a red flag law is as good as a search and seizure warrant. It's not the job of the officer on the street to second guess the constitutionality of an order signed by a judge.

The cops in the Caniglia case didn't have either a search warrant or a red flag law seizure order. In fact, I don't even know if Rhode Island has a red flag law (although, given its location, I would be surprised if they don't).

 

[Jim Watson]

Provisions of red flag laws may be challenged under the Fourth Amendment,
and those cases may come before us.

"This is not a RFL case, but I read Alito's concurrence as (almost?) inviting a RFL challenge."

Right. I take it a step further. 'We know those red flag laws are crook, just run one through channels.'

 

[Metal god]

I think we may agree in principle, but I disagree in specifics. My state happens to have one of those accursed "red flag" laws. I think ours is fairly typical of those I have read about. Under the "red flag" law, there IS a hearing, and there IS a court order (which, I submit, is functionally equivalent to a warrant) to confiscate firearms. The problem is that the subject of the order (hereinafter referred to as the "victim") is not notified of the hearing or afforded an opportunity to be heard or to present a defense

LOL - A dimestic FISA court , hmm what could go wrong . Any legal hearing that bares the defendant from even knowing it’s going on is bull . Even in good faith how would an attorney fight for your rights with out ever talking with you . If “your” attorney only has “facts” the state gives them how is that fare in any sense of the word .

The only way I would ever consider a red flag law as being ok , that is “consider” not except . Is if the person or entity claiming your rights should be violated would face stiff penalties ( large fines , jail time or being fired ) if the court rules the evidence does not support a warrant. There must be a large disincentive for people that want to make false claims when the accusations involve stripping someone of there constitutional rights .

 

[Aguila Blanca]

LOL - A dimestic FISA court , hmm what could go wrong . Any legal hearing that bares the defendant from even knowing it’s going on is bull . Even in good faith how would an attorney fight for your rights with out ever talking with you . If “your” attorney only has “facts” the state gives them how is that fare in any sense of the word .

Under the red flag law in my state -- and I believe most other states that have them are similar -- the subject of the order (hereinafter referred to as the "victim")) doesn't have a lawyer representing him/her/it at the initial hearing, so there's no question of an attorney representing you without talking to you. There is no lawyer representing the victim at the initila, ex parte hearing. That's why the initial hearing is called an "ex parte" hearing. "Ex parte" is taken from Latin, as many of our legal terms are, and in this context it means a hearing involving only one side of the dispute.

https://www.law.cornell.edu/wex/ex_parte

It's not that the victim is "barred from" the hearing. The victim doesn't even know about the hearing, and is not represented at the hearing.

The best known (so far) case of a red flag law being totally abused for revenge is the case of a woman in (IIRC) Colorado whose son was shot and killed by a police officer after the son had threatened the officer with a knife and ignored repeated commands by the officer to drop the knife. The officer['s body cam video is (or was) available on YouTube. The cop retreated at least 50 or 75 feet while repeatedly telling the youg man to drop the knife. In the end, the kid charged the cop -- so the cop shot him.

The bereaved mother used the state's red flag law to try to have the officer's guns taken away. She perjured herself on the complaint by claiming that she had standing to file the complaint because she and the officer "had a child in common." It took a year, but she was eventually charged with perjury and arrested.

The problems with these red flag laws are many. First, of course, is the ex parte nature of the initial hearing. Following closely behind that is the rather wide definition of who is entitled to file a complaint. That varies from one state to another. In my state, the red flag law as originally adopted a couple of years ago required that the request for the order be filed (or signed/supported) by two police officers. This year's revision removed even that protection. Now the complaint can be filed by almost anyone. Frankly, it makes me glad that I'm well beyond the dating age because with the wide-open definition of who can come after you, I'd be afraid to date anyone today. Break up with a vengeful significant other, and that person would have full legal power to swear out a "red flag" complaint against you.

Scary stuff.

 

[Metal god]

It's not that the victim is "barred from" the hearing. The victim doesn't even know about the hearing, and is not represented at the hearing.

I was only trying to make general points . I know the victims have no official representation but there must be someone there weighing there rights ???? My point was if that person ( judge or whomever ) never gets to hear from the other side how on earth can that be constitutional . I somewhat understand the FISA "theory" but that does not sit well with me domestically .

The bereaved mother used the state's red flag law to try to have the officer's guns taken away. She perjured herself on the complaint by claiming that she had standing to file the complaint because she and the officer "had a child in common." It took a year, but she was eventually charged with perjury and arrested.

Ha , perjury not even close enough to a disincentive . Ok yes perjury would be the crime but how many years in prison did she serve ? How many hundreds of thousands of dollars was she forced to pay . Likely none and maybe plead down to probation at best , NOPE not good enough . There must be mandatory penalties and harsh ones at that to include state officials loosing there jobs for supporting claims that turn out to be false . To be clear I'm not saying "knowingly false" I'm saying false period . It's the states responsibility to be right in this type of cases not the victims obligation to prove the state wrong after the fact . I'd even add no state official can be party to the case if they are with in 5 years of retirement to avoid state employees being asked to sign paper work a couple days before they retire to avoid penalty . Maybe even fired and loss of retirement .

 

[Aguila Blanca]

It's not that the victim is "barred from" the hearing. The victim doesn't even know about the hearing, and is not represented at the hearing.

I was only trying to make general points . I know the victims have no official representation but there must be someone there weighing there rights ????

No, there is NOT anyone there to represent the subject of the potential order. That's the point. That's what makes it an "ex parte" hearing -- only one side is represented.

The defendant -- the party I consider to be the "victim" -- doesn't even know about the initial, ex parte hearing. In most cases, the first thing he/she/it will know about it is when the police arrive to confiscate the firearms.

 

[Metal god]

Oh ok it was my understanding standing the judge weighs your rights against the aligations . I did not know the judge was simply a formality and they are just there to give the green light to make it “legal”

I now understand better about the red flag law/s .

 

[mehavey]

Call it a "confiscatory search warrant process" and you wouldn't be far off.



.

 

[5whiskey]

Oh ok it was my understanding standing the judge weighs your rights against the aligations . I did not know the judge was simply a formality and they are just there to give the green light to make it “legal”

I now understand better about the red flag law/s .

The victim (subject of the seizure) has zero knowledge of or representation at the initial hearing. There is a subsequent hearing in which the victim may fight the seizure and have his property returned. I know this leaves a sour taste, but the premise is there will be “eventual” due process. Ex parte hearings have been in use in many states for years, long before red flag laws. These are usually in the for, of domestic restraining orders barring someone from entering their own (shared) home, having any contact with their spouse OR kids (!), and even seizing firearms. These types of actions have done at least some good over the years. Kids don’t need to live in a house with a meth lab or sexual predator, a woman needs a way to get away from a man that beats her black and blue, etc. At the same time, they have been abused a ton. And almost every case where the use was legitimate, the subject of the ex parte hearing committed an underlying crime for which arrest is appropriate. That kind of makes the ex parte hearing a little moot.