Loss of Due Process to Red Flag legislation may become national law soon

In January 2018 a Bill (A08976) was quietly introduced to the New York State Assembly. That was the creation of Red Flag or Extreme Risk Protection Orders legislation. At the time, it was never expected to become law… until there was another mass shooting.

In reaction to the Parkland, FL school shooting there was an immediate emotional response across the nation. The NY State Assembly almost immediately pushed the Bill from committee to the floor of the Assembly. By March 6, 2018, it passed the floor vote by 115 – 20 with many Republicans jumping on board. Similar Bills passed in Massachusetts, Rhode Island, and other States. Yet the Red Flag Bills caught almost no attention among media and the public.

The nation, at the time, was focused on discussions of increased gun bans, debate on having teachers and/or specialized law enforcement carrying firearms in schools to protect students, and of course the unrelenting call of doom in regard to everything President Trump happened to do any given day. There just wasn’t any time in the 24/7 news cycle to address Red Flag legislation or its impact on Due Process. Even at the local level, news media large and small ignored what was happening behind the scenes.

“Thus in laymen’s terms, a “Red Flag” law, also known as ERPO or Extreme Risk Protection Order, is a form of gun control legislation that by function eliminates the 2nd Amendment Rights of Americans, purposefully denies Due Process, while violating the 4th Amendment. Said another way, an ERPO gives the Government the power to break into a home and take all firearms without warning or a day in court…
Imagine that the prior example were to include the results of the GAO. Imagine that across the State, part-time temporary kickball coaches, or school nurses, or school administrators were to call for removal of firearms from minority homes without Due Process, resulting in the children of those homes being removed by CPS. Imagine that happens at a rate 23% more than any other group of children.” – June 16, 2018

Flash forward to June 2018. Governor Cuomo, seeking re-election later in the year, took to the road to quietly – almost silently for the Governor – to push an even more extreme version of the original Bill from January. The additional provisions only amount to a few lines, but the impact of those few words ensures punishment to those accused.

Not only would the new Bill, A11148, deny Due Process to citizens and residents, but it would also expand the ability of the Government to strip firearms and, by extension of existing child protection mandated law, children from homes and families across the State. This new Bill, along with 4 other substantially the same Bills, still gathered no attention. An oddity considering the Bill justified a guilty-by-accusation punishment that required the accused – who would remain unaware of the legal action being enacted against them – to simply have gone to a store.

“(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition” – terms found in each Bill mentioned

The definition of a “dangerous instrument” is unknown and nearly impossible to define. A hammer, a car, or even a butter knife can and in the past have been “dangerous instruments” in the hands of those with evil intent. How about the fact that “recent” qualifies as 6 months. Arbitrary, but critical to justify punishing firearm owners for the mere fact of exercise of the 2nd Amendment.

Bill A11148 passed the State Assembly with barely a whisper in the collective news media. At the same time, 11 States moved forward with their own versions of the Extreme Risk Protection Orders. Then came the summer break, with Assembly members seeking re-election fanning out to speak with constituents and emphasizing why they should be kept in the office. Almost none spoke on the status of the Red Flag Bills they had voted on unless prompted.

Of the extremely few elected officials that were asked by any media about the vote, Assemblyman Cliff Couch (voted for A08976 but against A11148 – interview found here) stated his vote was to help protect the public. Assemblywoman Donna Lupardo (voted for both Bills – interview found here) stated that the vote was meant as a statement of serious intent. While the Bill was flawed she looked forward to input from the State Senate to create a final law that reduced suicide and protected citizens. Assemblyman Anthony Brindisi (voted for both Bills – see video below) elected to ignore speaking about his votes entirely and simply redefined the function of the Bills without regard to what the Bills actually state.

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State Senator Fred Akshar replied to our request for comment about the Bills facing the State Senate in the next legislative session saying,

“I’m not supportive of the Red Flag bill in its current form because of how broadly it’s worded. I’m open to having a discussion about taking a common-sense approach to background checks, ensuring that any loophole in existing law is closed, and addressing mental health concerns and waiting periods in relation to gun ownership. I will vote no on each of the bills in question in their current form.”

As concerning as this may all seem, it is getting worse. With a lack of attention from the media, and consequently a near blackout of information among the public, some Federal elected officials are jumping on the emotional bandwagon. One example is Republican Representative John Katko. As reported regionally by Auburnpub.com on July 28, 2018, he is now seeking to create a national Red Flag legislation. Rep. Katko said he is confident Democrats in Congress will support the Bill – which could equate to votes in November, though Katko did not state this part.
Photo credit Kevin Rivoli
While the actual language of the proposed congressional Bill has not yet been written, Rep. Katko claims,

“The bill wouldn’t allow officers to confiscate guns without a warrant, Katko explained. While it protects the Second Amendment rights of gun owners, it also ensures family members or law enforcement can request an order from a judge to remove guns if an individual poses a serious threat to themselves or other people.”

The problem of what is described by Rep. Katko and Assemblyman Brindisi is that it is inaccurate. If Rep. Katko follows the format pending in New York, and similar to other States, then the accused firearm owner is only notified at the execution of a warrant. A warrant is granted without the accused having a chance to face their accuser or defending themselves in Court. A warrant was potentially granted because the accused bought a steak knife.

Additionally, what defines a “serious threat”? What protection is given to the accused to protect them from strained relations or individuals with an agenda based on any number of biases or slights? What about the least mentioned issues of potential racial profiling, removal of children from homes, and of course the tens of thousands of dollars needed to be spent to prove innocence after being accused and effectively convicted of a crime that may never have taken place?

Far too often in modern politics, the public is the last to know about the potential impact and consequences of a law. All too often lawmakers leave out critical details, or in the worst cases actively obfuscate the truth – like keeping your doctor and healthcare in 2013. This is even worse when there is an emotional impetus to a Bill. The public demanding elected officials ‘do something – even when no one understands what to do nor the impact of what is being done.

Thus the conclusion to be drawn is simple. What are vital, Rights or restrictions? What is more important, Due Process or the illusion of safety. An illusion as no law can prevent evil people from doing evil things. Thus cars and bombs, and of course box cutters, have been used for vile acts that no law can prevent. How can such a hierarchy of all-encompassing government control and all-encompassing individual freedom co-exist in legislation a handful of people designed and even fewer comprehend enough to accurately describe?

Until the news media, and consequently the public, become broadly aware of the situation being legislated in the shade, the final answer may be the elimination of some or all of the protections and provisions of the Second Amendment, Due Process, and freedom itself.

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