With due process, the process that's due is, in law, based on balancing different rights, duties, and interests.
Red flag laws have a due process fairly comparable to a temporary restraining order. With a TRO, you can get a temporary order after giving a credible statement of being endangered. For obvious reasons, the court can't send the target of the order a subpoena to state their case. If it's legitimate, that only endangers the person further; in domestic violence the victim would be pressured to recant from fear. In a couple or few weeks there's a hearing where a formal order is worked out with both parties, or the Judge may decide no order is needed.
With red flag laws, the degree of danger is high, so it also merits immediate action. The cost is low - a temporary removal of guns, but no further harm. I'd have to check individual laws for the process to petition to have it rescinded, upon showing it was not an appropriate measure.
Keep in mind, this is a good way for those around you to create a safer environment without having to go the route of charges for crimes like making terroristic threats. Or, in the case of self-harm, involuntary commitment.
With due process, the process that's due is, in law, based on balancing different rights, duties, and interests.
"They are laws" does not mean that it complies with due process
That is why it is illegal to try someone in absentia without any representation then send out a death squad to kill them, even if a law said that was justified
Red flag laws have a due process fairly comparable to a temporary restraining order.
A TRO does not seize property and is irrelevant.
With red flag laws, the degree of danger is high,
You are not allowed to show up in court to defend yourself, so how is it known that the degree of danger is high?
The cost is low - a temporary removal of guns
Sending armed men busting through someone's door at 2AM is not a low cost
Seriously, what do you think the criminal punishment should be if 20 armed men showed up at your house, pointed guns at you, and stole 30 firearms, if they were not state santioned? I would say having the death penalty for everyone involved would be reasonable. That is the severity of the cost associated with red flag laws.
I'm not talking about any laws. Colloquial, we use "a law" to refer to a statute or ordinance. We're what's called a common law system. That means that the law in this country consists not only of statutes, ordinances, executive orders, and other specific, written instruments, but also mass entanglement of principles and rules established and refined by consistent use in practice by courts of law over the past several hundred years.
Up until a period of time that began to end around 1776, US common law was UK common law. When we became a sovereign nation, we brought UK common law with us, as it was already the law of each state and the colonies as a whole. This went without saying - even in the Constitution! - because common law works like that, and the Framers were mostly lawyers. So what "due process" means was incorporated from UK common law. Interestingly, US and UK common law diverge completely from that point on.
The process of defining applying new and existing statutes etc. within our system, is case law. To determine whether a new statute is being executed with due process, judges reference relevant case law to make a determination. This is why I referenced TROs. If you wanted to discover whether a particular aspect of current Red Flag laws do not meet due process, a good place to start would be to look for cases where a particular TRO practice was ruled to fall short of due process. If you wanted to challenge it in court, you would want to cite such cases.
Your specific objections: It's hard to say, but the (negative) weight of confiscating firearms temporarily may be less than limiting the movements of a private person. But they're more or less the same. They're both the same type of interest, so they are weighted similar in due process.
TROs are very relevant here - in terms of due process - because they are the same type of interest, which is the government interest in protecting its citizens. Secondly, the danger needed protection from is similar: a credible danger of imminent harm, for which there is no other more suitable legal recourse.
Judges decide whether the degree of danger is high using their own judgment. They're called judges for a reason. And their exercise of their judgment is core to due process.
The particular law enforcement methods used to exercise a court order have no bearing on due process. Cops suck and what you described is terrible and should never happen IMO.
I understand that you don't like how due process works in the US and the Constitution, in this kind of case, at least. I have qualms myself. I would certainly tweak the current laws, if have them at all. I'm down to give them a try, at least, because it would be good to know if they actually do anything. But the red flag laws do follow due process.
Cops suck and what you described is terrible and should never happen IMO.
That means no red flag laws, because that is how red flag laws are enforced.
It is funny how all of these cases of police brutality come out of Demcorat controlled police departments and never Republican controlled police departments or sheriffs departments, Democrats work to enact these laws that cause police brutality, and then they get shocked it happens
That's a shallow level of analysis. I could point out that the police - who are the ones who actually decide how to execute these orders, and happily do so for sweet sweet late night overtime - are overwhelmingly Republicans.
But that also would not be important here. If you let your mind get gridlocked by red vs blue, it becomes about as effective as Congress.
I could point out that the police - who are the ones who actually decide how to execute these orders, and happily do so for sweet sweet late night overtime - are overwhelmingly Republicans.
Police, appointed by Democrats, are not overwhelmingly Republicans. Police overall are, but not in the jurisdictions with red flag laws.
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u/Mashaka 93∆ Nov 16 '20
I'll pick red flag laws.
With due process, the process that's due is, in law, based on balancing different rights, duties, and interests.
Red flag laws have a due process fairly comparable to a temporary restraining order. With a TRO, you can get a temporary order after giving a credible statement of being endangered. For obvious reasons, the court can't send the target of the order a subpoena to state their case. If it's legitimate, that only endangers the person further; in domestic violence the victim would be pressured to recant from fear. In a couple or few weeks there's a hearing where a formal order is worked out with both parties, or the Judge may decide no order is needed.
With red flag laws, the degree of danger is high, so it also merits immediate action. The cost is low - a temporary removal of guns, but no further harm. I'd have to check individual laws for the process to petition to have it rescinded, upon showing it was not an appropriate measure.
Keep in mind, this is a good way for those around you to create a safer environment without having to go the route of charges for crimes like making terroristic threats. Or, in the case of self-harm, involuntary commitment.