Laws & Rights
NY Court Tells Hochul Where to Put Those “Red Flags”
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.)
NEW YORK COURT RULES DUE PROCESS MUST BE CONSIDERED FOR ‘RED FLAG’ ORDERS
Rights Still Matter, Even in New York
A New York court affirmed that Due Process rights must be taken into consideration when enforcing so-called “red flag” laws and vacated New York’s Gov. Kathy Hochul’s executive order for enforcing Extreme Risk Protection Orders (ERPOs) or “red flag” 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 – they must be afforded due process of law.
In New York’s case, the court requires that any “red flag” order must be accompanied by a determination from a physician or psychiatrist. That’s already part of New York’s laws. The court noted that New York’s Mental Hygiene law that states, “… a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition ‘likely to result in serious harm.’ Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such an opinion must be consistent with the first doctor’s opinion.”
This is a critical distinction to how Gov. Hochul wanted New York’s “red flag” law to be administered. Her Executive Order allowed for a police officer, district attorney, family or household member, school administrator or a school administrator’s designee – which includes guidance counselors or school social workers – to petition for “red flag” 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 “red flag” orders on individuals “… 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 others…”
That left courts in the position of determining someone’s mental health state, without medical evidence to make that determination.
The Court’s ruling now requires that the supporting documentation must include a doctor’s determination. What’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
“Second Amendment rights are no less fundamental than… Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection,” wrote Judge Craig Steven Brown.
That’s not just the U.S. Constitution that protects that right but also existing New York’s Mental Hygiene Law. The court went further. It concluded that anyone subjected to a “red flag” order for more than 48 hours must have a second and concurring determination from another doctor.
NSSF has never opposed so-called “red flag” 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.
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. “Red flag” laws have utility in protecting the public but must be carefully administered so these orders aren’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 – including Due Process and Second Amendment rights.
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April 11, 2023 at 7:28 pm
When my first wife left me after 26 years of marriage, I immediately moved my guns out the state. I followed the guns to gun friendly Idaho.
April 10, 2023 at 6:19 pm
Hochul has proven that she is mentally compromised by all the unconstitutional laws and executive orders she has signed since taking office.
April 10, 2023 at 5:40 pm
Not only should at least 2 doctors affirm a person will likely do harm there should be other evidence from neighbors, co-workers, friends, etc. Ther should also be severe penalties for filing false red flags such as the case of those going through a divorce who red flags their spouse without any actual reason other than spite. That person should then get to spend the next 20 years behind bars. Kathy Hochul should be red flagged as an incompetent tyrant hell bent on skirting the 2nd amendment as well as the others. She said something to the affect when the Supreme Court struck down her CCW “may” issue laws that she will find another way to stop her subjects from obtaining and carrying firearms. Such as make 99% of the city a gun free zone. The Supreme Court took her right to be a tyrant away is what she basically said after the ruling. Talk about a person far out of touch with the founding principals of this coutry. Maybe we should ship her off to Cuba.
April 10, 2023 at 11:38 am
Red flg laws only come from a tyrannical gov. that wants to totally disarm it’s populace. Politicians have not been forced to realize they are spokespeople of the people. Since they have no common sense as sociopaths, they should constantly be monitored and reminded. These kinds of laws are in opposition to many points of the constitution and most state constitutions.
People, get off social media and constantly contact legislators. Reinforce the good ones, contact the fascist bill originators such as warner and thune and stay in touch with your own legislators. There is only 24 hours in a day, use it wisely
April 10, 2023 at 10:54 am
I sure hate to say it but NY got it right. Washington State has been taking guns on “Red Flag” crap for years now. They are still doing it with NO due process, just a complaint from anyone. Total BS. But it is still happening.
April 10, 2023 at 10:13 am
It is really wierd that the best restrction on Red Flag laws happened in liberal NY. Thanks Hoochy Coochy for forcing this decision from the court.