Red Flag Laws: A Malicious Denial of Due Process

Today’s post is a quick, rather informal, response to a Facebook comment I received from a person known to me. The comment was in response to an opinion piece in the Washington Examiner that was critical of so-called “red flag” laws. The comment asked reasonably skeptical questions from the perspective of someone not well-informed on the relevant issues. Here’s an abridged version of the skeptical comment:

The article [critical of red flag laws] says “The ‘red flag’ laws are stripping citizens of their protected right to keep and bear arms without due process…” but it doesn’t say any thing about how it does this. And how is due process being denied? I heard that the Colorado [red flag] law is very tight and well written, but no one explained to me how they make that conclusion, only that it is a good law.

Here’s my response:

The whole red flag notion is ridiculous on its face. If someone is an “extreme risk” to the public they ought to be locked up, period. It makes no sense to lock up the person’s gun, but leave them free to rent a 4,000-pound truck loaded with cans of gasoline and road flares and drive it into a group of school children at recess.

The gun doesn’t make a person dangerous, the dangerous person is the danger. If the goal was genuinely public safety, the actual danger–the dangerous PERSON–would be secured.

Given that the “red flag” laws do not, in fact, secure the safety of the public, their focused application to the Constitutional right of Americans who happen to own guns can only be considered to be maliciously intended.

Further, due process requires things like the right to be present to contest the allegations against you, to have a lawyer present, to cross-examine the witnesses against you, to present your own evidence, and more.

The Colorado red flag law lacks due process precisely because it allows for the seizure of guns WITHOUT any requirement that the person alleged to be dangerous be permitted to be present, that they be permitted to have a lawyer represent them, that they be permitted to examine the witnesses against them, that they be permitted to present counter-evidence, or anything else the American system of justice generally requires in order to ensure justice in a criminal proceeding. This utter lack of due process is common to all red flag laws with which I am familiar.

Further, all of this denial of due process occurs in a context of a fundamental Constitutional right that has long since been recognized by the Supreme Court as a personalized, individual right.

Worse, this violation of a personalized Constitutional right without due process of law can be triggered merely by the say-so of “a family member,” whatever that means. A second-cousin? A hateful in-law? A second-cousin’s hateful in-law?

And if it turns out that the claim that the accused is an “extreme risk” to the public is a completely fabricated allegation, does the person falsely accused have any recourse against the false accuser for their false claims, for the likely thousands of dollars in legal expenses the falsely accused incurred, for the falsely accused having been unjustly deprived of their Constitutional rights and their ability to defend themselves and their family from criminals?

No, they do not.

Again, everyone can agree that dangerous people need to be prevented from causing harm, and we can do so WITHOUT any need for a so-called “red flag” law–if a person is demonstrably an “extreme risk” to the public they ought to be locked up, completely independently of whether they happen to have a gun, and legal procedures for that ALREADY exist. If securing the public’s safety was actually the goal, THAT is what would be done.

Of course, THOSE procedures for locking a claimed dangerous person up DO require due process of law for the accused.

And that’s all I have to say about that, at least for today.

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Law of Self Defense LLC

16 thoughts on “Red Flag Laws: A Malicious Denial of Due Process”

    1. Attorney Andrew Branca

      It IS public, for TODAY, as are all of our blog posts on the day they are posted. Tomorrow it will be locked down for Bronze+ members, but Bronze membership is free. A couple of days later it will be locked down for Silver+ members, but Silver membership is < 25 cents a day, so not too costly, and comes with other benefits such as our podcast. Law of Self Defense Membership info:


      Attorney Andrew F. Branca
      Law of Self Defense LLC

        1. Attorney Andrew Branca

          I’m afraid we don’t allow our content to be reproduced elsewhere–if we did, there’d be no reason for people to come here, and that’s how we pay our bills–but given the interest in this particular post we’ll likely leave it unlocked for a longer than usual time. Feel free to link to this page directly all you like.


          Attorney Andrew F. Branca
          Law of Self Defense LLC

    2. This post might be important enough to permanently make public, so that we could refer to it when other people have questions about why Red Flag laws are so malicious….

      This would require some sort of special “FAQ” or “Important Blog Posts” section, though.

      1. Attorney Andrew Branca

        Exactly what due process do you have under 29-38(c) at the point the cops knock on your door, say someone has complained that you’re a danger to the public because “you drink too much” or any other factor they want to claim (statute doesn’t limit these factors in any way), and they forcibly enter your home, search it from attic to basement, and seize any guns you may own?
        Near as I can tell, you have none. No right to even be present at the hearing that issues this warrant, much less a right to have a lawyer present, to present your own evidence, to challenge the evidence against you, to impeach the witnesses upon whom the warrant is being sought … indeed, I don’t see any due process at all.
        Sure, they say they’ll give you some due process a couple of weeks after the fact–but that’s precisely the point. It’s after the fact, your house has been invaded, your property has been seized, all without any substantive due process.
        And if they cut you a break and decide, hey, it was all a mistake, when do they give your guns back to you? Well, they don’t say. The statute merely says that the court will write an order that your guns will be returned, if the Connecticut judge (sure to not be anti-gun, right?) decides you are safe enough to have guns, at that later due process hearing.
        But the judge isn’t the person holding your guns, and writing the order isn’t your guns being actually returned. Presumably the local PD is holding your guns. They get the order, now they have to “process” the order. How long does that take? As long as they want it to take. I’ve seen people in states like NY and MA spend years trying to get their guns back.
        And when (if) they do ever get them back, as often as not the guns were stored in a damp basement and have been destroyed by rust.
        Ah, that’s too bad.
        No, I don’t see all that much due process in 29-38c.
        In any case, it’s pointless–if a person is an imminent danger to the public with firearms, they are an imminent danger to the public with a motor vehicle, or power tools, or knives, or an airplane pilot’s license, or anything else that can cause injury. The danger is not the inanimate object, which will never self-animate and hurt anybody. The danger is the person.
        If the person is dangerous, lock up the person.
        Of course, the person IS entitled to actual due process. So that would defeat the ACTUAL purpose of red-flag laws, which is NOT public safety, but gun control.
        Attorney Andrew F. Branca
        Law of Self Defense LLC

  1. On August 3 & 4 I attended Massad Ayoob’s MAG20 Session, which as expected was excellent. Massad is an impressive individual, very approachable and engaging, etc. During Massad’s presentation, he spoke very highly of Andrew’s Book, Andrew’s LOSD sessions as well as Andrew’s Blog. Great compliments from a (or the) preeminent authority in the field of the use of force and legal self-defense. Accolades to Massad Ayoob and Andrew Branca.

  2. Andrew, you are very welcome. A am a big fan of all your work and find your analyses and presentations to be incredibly complete and informative. Knowing how much respect you have for Massad Ayoob, I was delighted to pass his compliments along to you.

  3. Slippery slopes, slippery slopes. The Second Amendment defined away, the Fourteenth Amendment defined away. Who today admires South Africa (land reform?) or Canada (only PC speech is protected) as preserving more freedom than the U.S. of A.?
    Ruth Bader Ginsburg, Jan. 30, 2012: You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?

    1. H Anthony Semone

      as to the above link, you may have to use the following. It is an article penned by the American Psychiatric Association. HAHAHAHA

  4. H Anthony Semone

    Since I am likely to be involved – after the fact, of course – in matters having to do with fellow PA citizens having the firearms rights restored, I came across this extensive commentary on the relationship (or lack thereof) between so-called mental illness and gun violence (sic) Seriously, this is worth a read.

    You may have to cut/paste to get the URL to work. Enjoy.

    H. Anthony Semone, PhD

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