I think Dave Kopel clearly expressed our concerns.
David B. Kopel testifies at the hearing, "Red Flag Laws: Examining Guidelines for State Action," at the US Senate Committee on the JudiciaryUnited States Senate Committee on the JudiciaryHis list of what must be present to avoid due process issues:
Such orders can be legitimate when fair procedures accurately identify dangerous individuals. Such laws include the following features:
- Petitions initiated by law enforcement, not by spurned dating partners or relationships from long ago.
- Ex parte hearings only when there is proof of necessity.
- Proof by clear and convincing evidence, which has been corroborated.
- Guarantees of all due process rights, including cross-examination and right to counsel.
- Court-appointed counsel if the respondent so wishes.
- A civil remedy for victims of false and malicious petitions.
- Safe and orderly procedures for relinquishment of firearms.
- Strict controls on no-knock raids.
- Storage of relinquished firearms by responsible third parties.
- Prompt restoration of concealed carry permits for the falsely accused.
- Prompt return of firearms upon the termination of an order.
- Renewal of orders based on presentation of clear and convincing proof.
- Not allowing time-limited orders to be bootstrapped into lifetime federal prohibition.
The above features can be found in some state laws, as will be detailed below.
But the laws being pushed by Everytown lacks these due process protections, because the primary purpose of the law is to enable due process violations.
In 2018, the Conference of Chief Justices asked the Uniform Law Commission (ULC) to draft a model red flag law. The ULC convened a Study Committee representing a wide range of perspectives, such as the National Sheriffs Association, International Association of Chiefs of Police, psychiatric experts, state courts, pro-gun and anti-advocates, pro-gun and anti-gun state legislators, and others. I was a member of the ULC Study Committee. The Committee overwhelmingly voted to recommend that the ULC move forward with drafting a model law. Support for a model law came from across the political spectrum, including all the state legislators, law enforcement, and the courts. Overt opposition to the model law was expressed only by the Giffords Law Center, which preferred that legislators use only Giffords/Bloomberg model, and not the more careful and balanced approach that would likely be produced by the Uniform Law Commission. Perhaps as a result of lobbying from Giffords and Bloomberg, the Uniform Law Commissioners later voted not to draft a model law.
Why did Bloomberg object to the ULC drafting a model law that would satisfy due process concerns?
Because they wanted a law that enabled due process abuses.
And that's what we're getting.
About a third of gun confiscation orders are wrongly issued against innocent people.
Any procedure that allows a judge to hear only one side of a case necessarily will produce a high error rate. Data from the two states with the oldest confiscation laws so demonstrate. In Connecticut, confiscation orders may be issued ex parte. Later, the respondent will have an opportunity to tell his or her side of the story in court. In Connecticut, once a judge eventually hears the respondent’s side of the story, 32 percent of confiscation orders are overturned.1 A study in Marion, County, Indiana, reported similar results. As will be detailed below, Connecticut’s 32 percent reported error rate is likely an underestimate, since government officials pressure respondents not to retain counsel and contest orders.
Error rates for newer laws based on the Giffords/Bloomberg model, are likely to be even higher. Connecticut requires that a petition must be filed by two law enforcement officers, and they must have conducted an independent investigation. Indiana requires that petitions be filed by law enforcement. The Giffords/Bloomberg system, though, allows petitions to be filed by a very wide variety of people, including ex-girlfriends or ex-boyfriends. The Giffords/Bloomberg system has no requirement for corroboration of any evidence. Indeed, for Colorado’s HB 19-1177, which will soon become law, legislators removed a requirement that evidence be “corroborated.”
