Why don’t “red flag” laws give you a chance to be present at the hearing? (Note: the answers are my educated opinions.)
If you were served advanced notice and given a chance to participate in the hearing (due process), that might give you an opportunity to become violent.
Emergency protection orders (essentially 72 hour restraining orders) can be done outside of court hours and are usually done by police, who typically make an effort to serve it if they can find the restrainee. A temporary restraining order is approved by a judge and the person generally must be informed about it and served, but is not given a chance to appear in court until the scheduled hearing, usually several weeks.*
Let’s say a wife applies for a gun violence restraining order (GVRO). Judge approves in on the spot. Next thing husband knows, deputies or marshals or one of Nevada’s gazillion type of law enforcement officers are at the door. He has no opportunity to respond for several weeks.
Now, if he was a dangerous monster, just like the domestic violence stuff above, not knowing about the hearing doesn’t give him a chance to beat, kill, or otherwise dissuade the woman. It also doesn’t give him a chance to respond.
Second, if the person is a mass murderer or whatever, he doesn’t have a period of say, 72 hours, where he must engage in his plot right now before his gun disappear. Or shoot it out with the police. The denial of advance warning is for “protection.”
In a county where the Constitution is protected, the Fourth Amendment would stop all this. Maybe an short “keep away” order until the next court session would be appropriate, but depriving someone of the right to own firearms absent due process or probable cause is wrong. Our state Supreme Court recently ruled that misdemeanor domestic violence convictions cannot take away someone’s right to bear arms unless they have a jury trial.
Protection and denying a bad guy a chance to do something before the piece of paper can be perfected does not merit removing constitutional rights so easily. Restraining orders are well-known for not keeping anyone safe from determined criminals; they are laughably weak protections. Taking away someone’s guns is not any more of a protection.
So as a society, we the people—informed, intelligent people—must decide if we want our liberties so easily trampled upon. Do we want to force a process with no oversight and an expensive resolution process on people when it is unlikely the restrictions would work? Is due process and probable cause so cheap to us that we will trade it for a piece of paper? Legislators think they are protecting people, but “red flag” laws are merely a tool for future oppression.
*A deputy I worked with was going home one day from work. He saw the neighbor’s toddler playing in the street unsupervised, so he grabbed the kid, took him to his mother, and lectured the mom about how she was an unfit mother and she was lucky she didn’t arrest her for child neglect.
Mom didn’t like being told she was a bad mother, so she filed a complaint against the deputy saying he molested her children and gets a temporary restraining order against the deputy. Instantly, IA flies into action and almost immediately finds out the truth. However, the deputy had all his guns taken away and was put on administrative leave for several weeks until the court hearing.
At the hearing, the woman is forced to admit the charges were false. She was charged with perjury, filing a false police report, making a false complaint, and child neglect. Yet still the deputy had to get an involuntary vacation and lose his guns because of a lying sack of human garbage. And despite him being a deputy and the investigation, the court still took its sweet time getting to the TRO hearing.
Clayton E. Cramer
Gun Free Zone
The War on Guns
The View From Out West