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NY Court Tells Hochul Where to Put Those “Red Flags”

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Yes, mental health matters … but this is still America.

Every time some lunatic decides to murder other people for a lunatic reason, America goes through a period of reflection about mental health and its role relating to the Second Amendment. That’s a fine and worthy discussion to have, but it’s important to remember that the Second Amendment isn’t the only right we have. We’re also protected by our due process rights … because here in America, we don’t punish people for having weird opinions. We don’t permanently remove basic human rights from citizens who haven’t done anything wrong. This isn’t Minority Report, and we don’t prosecute crimes that haven’t happened. Furthermore, Kathy Hochul’s “red flag” may very well be the “normal opinion” of more than half the country. So what to do? Well, according to a New York court, here’s what they can’t do. (Whew.)

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NEW YORK COURT RULES DUE PROCESS MUST BE CONSIDERED FOR โ€˜RED FLAGโ€™ ORDERS


By Larry Keane

Rights Still Matter, Even in New York

A New York courtย affirmedย that Due Process rights must be taken into consideration when enforcing so-called โ€œred flagโ€ laws and vacated New Yorkโ€™s Gov. Kathy Hochulโ€™s executive order for enforcing Extreme Risk Protection Orders (ERPOs) or โ€œred flagโ€ orders. That is consistent with what NSSF has said from the beginning about ERPOs. If an individual is going to be deprived of fundamental constitutional rights, they must be afforded the opportunity to examine and challenge evidence brought against them โ€“ they must be afforded due process of law.

In New Yorkโ€™s case, the courtย requiresย that any โ€œred flagโ€ order must be accompanied by a determination from a physician or psychiatrist. Thatโ€™s already part of New Yorkโ€™s laws. The court noted that New Yorkโ€™s Mental Hygiene law that states, โ€œโ€ฆ a personโ€™s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition โ€˜likely to result in serious harm.โ€™ Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctorโ€™s opinion must be obtained and such an opinion must be consistent with the first doctorโ€™s opinion.โ€

Doctorโ€™s Opinion

This is a critical distinction to how Gov. Hochul wanted New Yorkโ€™s โ€œred flagโ€ law to be administered. Herย Executive Orderย allowed for a police officer, district attorney, family or household member, school administrator or a school administratorโ€™s designee โ€“ which includes guidance counselors or school social workers โ€“ to petition for โ€œred flagโ€ orders. There was no requirement that a licensed medical professional to opine on the mental state of the individual in question. Her Executive Order required state police to file โ€œred flagโ€ orders on individuals โ€œโ€ฆ when there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or othersโ€ฆโ€

That left courts in the position of determining someoneโ€™s mental health state, without medical evidence to make that determination.

The Courtโ€™sย rulingย now requires that the supporting documentation must include a doctorโ€™s determination. Whatโ€™s more, is the Court recognized that Second Amendment rights are foundational individual liberties and the state must clear a high bar when taking action to deprive someone of those rights.

Not a Second-Class Right

โ€œSecond Amendment rights are no less fundamental thanโ€ฆ Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection,โ€ wrote Judge Craig Steven Brown.

Thatโ€™s not just the U.S. Constitution that protects that right but also existing New Yorkโ€™s Mental Hygiene Law. The court went further. It concluded that anyone subjected to a โ€œred flagโ€ order for more than 48 hours must have a second and concurring determination from another doctor.

NSSF has never opposed so-calledย โ€œred flagโ€ laws, so long as they provide procedural and substantive due process. Of the 19 states and the District of Columbia that have these laws on the books, none include sufficient or adequate due process protections. A New York Supreme Court has now held that they must be included.

High Hurdle

The firearm industry wants to keep firearms out of the hands of those who cannot be trusted to responsibly possess them. That includes prohibited individuals, those suffering through a mental health crisis or suffering suicidal ideations and unsupervised children. โ€œRed flagโ€ laws have utility in protecting the public but must be carefully administered so these orders arenโ€™t abused to disarm lawful gun owners.

The bar must be higher than mere accusations that someone is likely to harm themselves or others. ERPOs that would deprive a citizen of their constitutional rights must provide meaningful due process protections including allowing an individual to examine and rebut any evidence presented to a court for consideration. For that reason, NSSF has significant concerns with ex parte orders, which are issued without notice to the individual who is the subject of the order. And, on the truly rare occasion when there are exigent circumstances to justify an ex parte order, due process requires a very prompt post-deprivation hearing.

The New York judge got it right with this decision. We should be providing all the tools necessary for law enforcement to protect the public against criminals and mentally-deranged individuals that have no respect for life or law. Those protections, though, should never come at the cost to our foundational freedoms โ€“ including Due Process and Second Amendment rights.

 

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