Red Flag bill comes with extreme risk to Justice

Published in the Pueblo Chieftain November 23, 2018

Democrats have wasted no time announcing radical changes to the way that we live life in Colorado. It appears they have little or no regard for the rights of the citizens they now represent. Under the guise of “protecting the people,” they plan to reintroduce the so called “red flag” bill, which was defeated last year. The law would allow a person’s family members, as well as members of law enforcement, to file for a protective order to temporarily remove weapons from a person by accusing them of being a threat to themselves or others. Democrats hope to pass the legislation soon, likely in January. On the surface, this plan sounds good and logical to many people; however, there is now a case out of Maryland that raises startling questions regarding the execution of such a law.

Hardly a month after a similar “red flag” law went into effect in Maryland, a 61-year-old man was shot and killed following an attempt to serve a protective order that would have stripped him of his weapons. Despite the fact that the police came knocking at 5:17 in the morning, when nobody would expect visitors, the man was cooperative until police began to explain that he would be losing access to his weapons. This tragic incident is an example of what can happen when armed agents of the state come and try to take legally-owned weaponry from someone who has committed no crime. What’s ironic is that, under any other circumstance, it is actually these policemen who would be accused of committing a crime by killing a man who had committed no crime.

To compound the issue in Maryland, the law states that these orders are confidential. This means that the press is unable to identify why the protection order was issued by law enforcement, what reasoning was behind the order in the first place, or anything that would help us understand why a man who committed no crime is dead. We don’t know if he was planning anything or why his sister filed for the order. We don’t know if they had a mere disagreement or if there was a threat. We know nothing about the legitimacy of this incident.

These are major problems with “red flag” laws. You are punished before you have an opportunity to defend yourself, and before a judge sees your case, as the bill only states that “the court” must respond to petitions within 24 hours. These laws turn the presumption of innocence on its head. According to Colorado Representative Alec Garnett, co-sponsor of last year’s bill, “You set in step an emergency process to intervene, and then there’s a full hearing seven days later where the petitioner and law enforcement come together and talk to the judge in a full evidentiary hearing to talk about whether that extreme risk protection order should continue.” This statement raises a lot of questions that need to be answered.

During the seven days between being served a protection order and going before a judge, are you detained? Are police allowed full reign of your home to seek evidence that you are a danger to yourself or the public? If the police are not allowed full reign of your property, how will they find any evidence against you? If you are found innocent, do you have any legal recourse against the person that filed the order? These questions aside, based on Representative Garnett’s statement—and the text of last year’s bill—the same accuser can file multiple petitions against you. Further, only your accuser and law enforcement will speak to a judge about extending the order; the bill does not state what role, if any, the “respondent” has in the hearing.

This law echoes the Sedition Act of 1918, under which the government imprisoned people for using “disloyal, profane, scurrilous, or abusive language” against the government, the flag, the armed forces, or otherwise caused people to view the government in a negative light. While it seems far-fetched now, the Sedition Act was upheld by the Supreme Court. At least in these instances, there was likely some proof of a crime.

While we can all agree that something must be done to defuse the disturbed minds that see no value in human life, we shouldn’t be so quick to allow the state this kind of unclear control over any of our rights. The Libertarian party is patently against such a law, and all those who believes in justice should be as well.

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