At the state capitol in Augusta Monday, Maine lawmakers got an earful from both sides in a hotly-debated push to adopt a so-called “red flag” law, the generic term for legislation that would legalized Extreme Risk Protection Orders (ERPO) that allow people deemed to be “at risk” to have their firearms seized by police.
The confiscations are supposed to be “temporary,” but that might happen only after the subject of an ERPO comes to court to argue his case, and that happens only after the guns are seized. According to Red Flag critics, it amounts to being considered guilty until proven innocent, which flies in the face of the doctrine of presumed innocence that has been a cornerstone of American justice.
Earlier this month, Second Amendment Foundation Executive Vice President Alan Gottlieb raised some red flags of his own, noting, “We’ve…seen (court) cases where people have been falsely accused, and it has essentially ruined their lives. Nobody should be subjected to such legal abuse, essentially being considered guilty until they prove themselves innocent, and in the meantime having their Second Amendment rights suspended or revoked. After all, this is still the United States, not a police state.”
According to the Portland Press Herald, State Sen. Rebecca Millett (D-Cape Elizabeth) said the legislation “provides a tool to help law enforcement officers protect our loved ones from deadly tragedies.”
“I have heard from law enforcement officials from across the state who say the tools we have in place right now just aren’t enough,” she stated.
Not everyone agrees with her. The story quoted psychiatrist Dr. Art Dingley of Farmington, who called the law “a distraction.”
“It’s a shiny object which diverts our attention from the true mission, and the true mission is to address the root causes of despair and violence,” he asserted.
The newspaper said opponents “portrayed the bill as an unconstitutional gun grab that could put police officers at risk without any mandatory follow-up evaluation or counseling.”
By no small coincidence, two people at Washington, D.C.’s Heritage Foundation, writing in the Daily Signal, had this to say about Red Flag laws: “Red flag laws can be important in combating these types of firearm-related violence, but such laws must also respect due process protections, be limited in duration, and refrain from broadly undermining the Second Amendment rights of gun owners who aren’t a danger to themselves or others.”
Amy Swearer is a legal policy analyst at the Meese Center for Legal and Judicial Studies at The Heritage Foundation, and Peyton Smith is a member of the foundation’s Young Leaders Program.
They noted that Colorado Gov. Jared Polis had recently signed a Red Flag law, making it the 15th state to adopt such legislation.
Swearer and Smith observed, “Every state’s red flag law is different, and some are unquestionably worrisome.”
However, in discussing Colorado’s law, the authors insist that this does not amount to “gun confiscation.” Firearms are only temporarily taken.
“No person’s constitutional rights should be revoked, even temporarily, without first affording him or her meaningful due process protections,” Smith and Swearer write. “Colorado’s law generally ensures that the process for restricting firearm access via a red flag law has the same protections in place as its process for involuntarily committing someone to mental health treatment.
“Once a petition is filed for a yearlong order, the court must hold a hearing within 14 days.
There, the defendant is entitled to legal counsel and the full array of due process protections for a civil commitment hearing—including the right to testify, to present evidence, and to cross-examine witnesses.
“The burden of proof is on the petitioner to show by clear and convincing evidence that the individual is a significant risk of danger because of his access to firearms.
“If the petition is for a 14-day emergency order, the hearing must be held within one court day, but it may be done without the defendant present.”
And therein could be a problem because of the Sixth Amendment provision that an accused person has a right to be “confronted with the witnesses against him.” That cannot happen if the defendant is not present.
Under Colorado’s law, they note that “the petitioner must show that the risk of harm is in the ‘near future,’ and must seek a full-fledged hearing for a yearlong order or else the emergency order expires after 14 days and the individual must have their firearms returned.”
Then comes the question: Should someone who files a baseless Red Flag petition in order to harass a gun owner face criminal prosecution?
The debate may boil down to simply making certain that all of these questions are addressed before seizing someone’s property and, even temporarily, depriving that person of their Second Amendment rights.
This is where cooler heads must prevail.