Now the citizen’s civil rights under the Constitution must be considered when implementing Extreme Risk Protection Orders (ERPOs), or “red flag” orders. The civilian facing this action must be given the chance to review and challenge evidence against them.
In other words, the due process of law.
The National Rifle Association and others took issue with the statute that virtually ignored the rights of the gun owner. A person could be blocked from acquiring or possessing guns through a court’s civil order, and law enforcement would be mandated to locate and seize weapons from the individual subject to the order.
From whom may this order originate? Any relative, regardless of how distant, present or past spouse, cohabitant or dating partner, school administrator, healthcare professional providing treatment, district attorney or law enforcement officer.
What may pass for evidence includes proof that a person recently acquired a weapon or ammunition, although it was legally obtained. Only “facts and circumstances” provided by the petitioner are considered, and there is no requirement for any other expert analysis.
Further, there is no advance notice of the proceedings and subsequent actions. Even if the individual were to learn of the ongoing process, they have no right to attend the hearing over their firearm possession. And the first knowledge they may have of the order is when law enforcement officers appear ready to search their home and seize any weapons.
This also exposed the gun owner to prosecution if firearms were found to be improperly stored or paperwork was not up to date.
Much of the issue tackled by the court concerned the changes to New York’s “red flag” procedures implemented by Hochul’s executive order. State law already requires that the “red flag” order be supported by a determination from a doctor or psychiatrist.
The Mental Hygiene Law flatly states that “a person’s…rights cannot be curtailed unless a physician opines that a person is suffering from a condition ‘likely to result in serious harm.’” The law further mandates that any act or order that curtails liberty past 48 hours needs a second doctor’s opinion that is consistent with the first doctor’s observations.
That’s where the egregious action by Hochul parted ways with established New York state law. Her executive order allowed many people to petition the court for “red flag” actions and removed the requirement for licensed medical professionals to weigh in on the individual’s mental state.
So, a court could determine a person’s mental state or psychological fitness without ever consulting a professional to make this determination.
The new court ruling corrected this injustice. While not completely rectifying the many civil rights issues with these laws, it does require that a medical professional provide supporting documentation to back up what the petitioner alleges.
Even further and more reassuring, the court removed the second-class status from Second Amendment protections for New Yorkers. In the process, it restored the high bar the state must reach to deprive its citizens of constitutional protections.
In the words of Judge Craig Steven Brown, “Second Amendment rights are no less fundamental than…Fourth Amendment rights and must be provided the same level of due process and equal protection.”
So-called “red flag” laws have their usefulness if they follow rules and procedures that protect the rights of the gun owner. There are absolutely times when an individual should not be in possession of a weapon for reasons of public safety or to protect themselves.
But due process is the right of every American, and it cannot be casually tossed aside on the whim of a governor who has no regard for law-abiding gun owners. The New York court was right in its reversal of Hochul’s overreach.
