Fox News’ Napolitano: ‘Red Flag’ Violates Due Process

August 16, 2019 By Dave Workman

“The concept of a ‘red flag’ law — which permits the confiscation of lawfully owned weapons from a person because of what the person might do — violates both the presumption of innocence and the due process requirement of proof of criminal behavior before liberty can be infringed,” Napolitano wrote.

Napolitano, who served as a Superior Court judge in New Jersey for eight years (1987-95) has written nine books on legal and political subjects, according to a Wikipedia biography. He does not soft-pedal his opinions.

The 941-word commentary raises issues that have been kicked around social media by gun rights activists over the past couple of weeks since the two high-profile shootings in El Paso and Dayton, and even before that in the wake of the Garlic Festival shooting in California the previous weekend. In the aftermath of those incidents, Capitol Hill anti-gunners and the gun prohibition lobby have been pressing their demands for additional restrictions on gun owners, including so-called “universal background checks”—despite the fact that shooters in all three cases bought their guns legally—and the “red flag” laws, commonly called “Extreme Risk Protection Orders” (ERPOs).

After taking the reader through a history of firearms use during the American Revolution, Napolitano (who is not related to the former Arizona governor) observed, “Fast-forward to today, and we see the widespread and decidedly un-American reaction to the tragedies of El Paso and Dayton. Both mass murders were animated by hatred and planned by madness. But because both were carried out using weapons that look like those issued by the military, Democrats have called for the outright confiscation of these weapons.

“Where is the constitutional authority for that? In a word: nowhere,” says the judge.

“The government’s job is to preserve personal liberty,” he writes. “Does it do its job when it weakens personal liberty instead? Stated differently, how does confiscating weapons from the law-abiding conceivably reduce the ability of madmen to get those weapons? When did madmen begin obeying gun laws?”

Second Amendment activists say “red flag” laws appear to lack one very important thing: Due Process, which they argue causes a constitutional collision with the Fourth and Fourteenth amendments.

While nobody wishes to see firearms in the hands of a crazy person, the fear is that any law-abiding gun owner whose sibling, ex-significant other, estranged spouse, neighbor or co-worker with a grudge might file a complaint that leads to a disarmament order.

Judge Napolitano reminds readers that under this country’s legal system, a person is to be presumed innocent until proven guilty in a court of law. Red flag laws seem to turn that concept on its head by seizing someone’s firearms and then allowing a hearing for the affected person to prove they’re not a danger to themselves or others.

Says Napolitano: “The presumption of innocence puts the burden for proving a case on the government. Because the case to be proven — might the gun owner be dangerous? — if proven, will result in the loss of a fundamental liberty, the presumption of innocence also mandates that the case be proven beyond a reasonable doubt.”

Napolitano’s opinion, however, is just that…an opinion. But it raises some interesting questions that, so far, proponents have been unable to satisfactorily answer.

Note: Oregon red flag law for example

RED FLAG LAW
WHAT YOU NEED TO KNOW
Oregon’s Red Flag law requires a fairly simple process. The first step is for a concerned family member, household member, or law enforcement officer to ask the court for an Extreme Risk Protection Order (ERPO), which will remove a weapon, or a concealed handgun license, from an individual who is at risk for suicide or is a danger to others. An Order also prevents the person from buying additional guns for a one year period.

The law is nicknamed “Red Flag Law” for when a person exhibits a ‘red flag’ or other indicator that they may be a harm to themselves, or others. It is one of the few tools that family and household members have to quickly remove a weapon from somebody who is at risk.
?
How it works:
A family member, household member, or law enforcement officer may petition your county Circuit Court for an Order by filling out a notarized petition with facts showing that the person is a danger to themselves or to others. The court will then hold a hearing typically within 24-hours. If the judge agrees, all weapons and concealed handgun permits must be surrendered within 24-hours of issuing the Order.

Who can request:
• A law enforcement officer
• Family member
• Spouse
• Intimate partner
• Parent
• Child
• Sibling
• Any person living in the household of
the person they are concerned about can request an Order from the court.

Timeline:
The court must hold a hearing typically the same day or within 24-hours. The person who requests the petition must appear in person or by video at the hearing. If the person who is at risk requests a hearing, then the court must hold an additional hearing within 21 days. If approved, the Order is usually effective for one year.