“The case highlights the weakness of a model predicated on the presumption that persons named in a petition are dangerous, and that it is therefore appropriate to strip them of their rights and property without notice or a meaningful opportunity to respond until after the fact. E.P. was obligated to spend time and money to undo the trial court’s blunder and even so, there is no indication in the case report that he had his property or his gun rights restored prior to the appellate court ruling.”
President Biden and his Attorney General, Merrick Garland, have championed “red flag” laws that authorize courts to temporarily prohibit individuals from possessing or accessing guns based on unproven and uncorroborated allegations by family members, coworkers, law enforcement officers or others. A key feature of these laws is an initial order that is imposed “ex parte” – without notice to the affected person, where he or she has no opportunity to attend or contest the allegations.
The model legislation prepared by the Biden Administration authorizes such an initial order, together with a concurrently-issued warrant “authorizing a law enforcement agency to search the person of the respondent and any such place for firearms and to seize any firearm.” The gun ban and confiscation remain in place until a second court hearing (for a final order) occurs, which may be weeks later. Only with respect to this hearing does the person have the right to due process – to advance notice of the hearing, and to appear, challenge the basis for the order, and present their own evidence.
The NRA, as have other critics, has voiced concerns over the lack of due process, impact on civil liberties, the flimsy standards, and a process that is slanted towards the issuance of an order. Supporters dismiss these concerns; after all, the ex parte order (and concomitant loss of gun rights and personal property) is technically temporary, and the lack of notice and an opportunity to appear are rectified during a later hearing on notice.
A recent case in Florida illustrates one of the many issues with these orders.
