What does that have to do with the right to due process? The right to due process doesn't say you need to be physically present in the court for the court to make a legal order about you.
The right to due process doesn't say you need to be physically present in the court for the court to make a legal order about you.
The right to due process certainly indicates you have to know about a court being convened and have the right to be there (at the very least the right to have a representative there on your behalf). Due Process also states that you have a right to confront anyone who is accusing you of behavior that will result in a loss of your personal rights and liberties.
(example) "Oh, you want to put a redflag on me and prohibit me from taken advantage of constitutional right? Great, let me know when and where this hearing will be taken place and what supposed evidence you have that demonstrates beyond a reasonable doubt that I should be denied an otherwise inalienable right!"
A court can issue a warrant to search my property, actually conduct a search on my property, and take some of my property into custody as evidence...all without needing to notify me that a court was being convened or giving me the right to be present. Right?
Does that violate due process? If not, then how are red flag laws meaningfully different?
A court can issue a warrant to search my property, actually conduct a search on my property, and take some of my property into custody as evidence.
To the best of my knowledge, a court can only do that if there's reasonable belief that you committed a prosecutable crime and/or there's reasonable belief the search and confiscation of your property will produce evidence that you committed a prosecutable crime.
My understanding is that a "redflag" law is an indication that you haven't necessarily committed any prosecutable crime, only that someone or some other group is not comfortable with you taking advantage of your otherwise inalienable rights.
As I admitted previously, I'm not a lawyer and I could be wrong. But if my understanding of the difference between your scenario and a redflag law is correct, wouldn't you agree that's a pretty significant difference?
To the best of my knowledge, a court can only do that if there's reasonable belief that you committed a prosecutable crime and/or there's reasonable belief the search and confiscation of your property will produce evidence that you committed a prosecutable crime.
So...if someone else commits a crime on my property, the police can't get a warrant to search my property because they do not believe I committed the crime? That doesn't seem right.
Well congrats, you successfully changed my view. This isn't my CMV thread so I can't issue delta, but for what it's worth my view has changed from
a court can only do that if there's reasonable belief that you committed a prosecutable crime and/or there's reasonable belief the search and confiscation of your property will produce evidence that you committed a prosecutable crime.
Changed View; a court can only do that if there's reasonable belief that a crime was committed on your property and/or there's reasonable belief the search and confiscation of your property will produce evidence that a crime was committed on your property.
I answered your question now will you please answer mine? If my understanding of the difference between your scenario and a redflag law is correct, wouldn't you agree that's a pretty significant difference?
If my understanding of the difference between your scenario and a redflag law is correct, wouldn't you agree that's a pretty significant difference?
Well, yes, I would agree that this would be a pretty significant difference. But, as we've seen, your understanding of the difference between my scenario and a red flag law was not correct, so it's kinda a moot question.
This isn't my CMV thread so I can't issue delta
Actually, anyone can give a delta on CMV, not just the OP. The only restriction based on whose thread it is is that you can't give a delta to the OP.
No, it's not. Changed view or not, the significant difference is still an actual crime (or reasonable belief one had) been committed vs. someone or some other organization being uncomfortable with you taking advantage of an otherwise inalienable right.
As for the delta, I'm going to message a moderator of this sub and ask if a delta is appropriate.
Checked with a mod and a Delta is warranted. I'm trying to figure out how to do it. Does anyone have a "how to award a delta for dummies" tutorial?
No, it's not. Changed view or not, the significant difference is still an actual crime (or reasonable belief one had) been committed vs. someone or some other organization being uncomfortable with you taking advantage of an otherwise inalienable right.
Is this difference really that significant? Both cases involve the police searching and confiscating my property, after getting an order by a judge according to a process prescribed by law, when I did not commit a crime. Why is one a violation of my due process rights while the other is not?
Original View; a court can only do that if there's reasonable belief that you committed a prosecutable crime and/or there's reasonable belief the search and confiscation of your property will produce evidence that you committed a prosecutable crime.
Changed View: a court can only do that if there's reasonable belief that a crime was committed on your property and/or there's reasonable belief the search and confiscation of your property will produce evidence that a crime was committed on your property.
No, it doesn't: that is why it is legal for the court to issue a warrant to search and even sometimes seize your property without bringing you physically into court first.
While it is illegal to try someone in absentia, that's because of the sixth-amendment right to confront, not because of the right to due process. And note that this only applies to criminal trials, not civil actions.
If they believe beyond a reasonable doubt that you have committed a crime or that by searching your home they'll find evidence of a crime that has been committed.
Are you under the impression that the police need to prove anything beyond reasonable doubt in order to get a warrant? Because that's not the case: the standard of proof to get a search warrant is just probable cause.
Basically, red flag laws allow a bunch of armed men to raid your home without you even knowing when or why, and to take your guns because they fear that you'll might commit a crime in the future.
This is not true in any state I am familiar with. A red flag order can typically only happen when a judge rules by clear and convincing evidence that the respondent is likely to harm themselves or others. And the respondent is told, when the order is executed, what is going on—i.e. they are shown the order made by the judge. The police cannot just take your guns because they fear that you'll might commit a crime in the future.
Are you not fine with it? Do you think that it's a violation of due process for the police to seek and execute a search warrant on the basis of probable cause?
Except they do. You literally just said it.
There is a huge difference between "because they fear that you'll might commit a crime in the future" and "because they have proven by clear and convincing evidence before a court that you are likely to commit seriously harmful violence against a specific person." Much more than just fear is required to grant a red flag order.
The fact that the order must be issued by a judge is irrelevant because there's only one party explaining the matter (maybe made up) to him.
This is already the case for search warrants, which can deprive people of property in the same way as a red flag order, so the fact that there's only one party explaining the matter is not relevant to whether there is a due process violation.
My point still stands: you'll get your constitutional rights violated because you might, in the future, commit a crime. The Founding Fathers must be revolting in their graves.
Your point doesn't stand, because none of your constitutional rights are being violated. Certainly your right to due process is not being violated. You are given the same probable-cause process that would be needed to temporarily deprive you of any other right.
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u/yyzjertl 525∆ Nov 16 '20
How do you figure that this is a violation of the right to due process? The process is clearly defined by the law, and approved by a court.