David Sayers

There has been a lot of talk lately about utilizing “red flag” laws to help diminish the use of firearms to commit unlawful acts of violence by people who may be suffering from mental illness, or are just out for revenge or terrorism.

This has really come to a head after the recent acts of violence involving firearms.

While it is altogether fitting and natural to seek solutions to any kind of violence perpetrated against the innocent, especially children, it is all too easy to grasp at straws promising a simple quick and easy solution to a problem. Politicians are particularly prone to offer solutions that may sound good on the surface, but offer little more than vote-seeking sound bites. They do little more than put a Band-Aid on a vexing problem to garner a few votes. The real root of the problem is left unsolved, but the politicians can feel good that a least they did something. Unfortunately, this is all too common

A red flag law is a gun control law that permits police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves.

While red flag laws have a good intent and can be useful, they also carry with them the potential to be misused — with negative and costly consequences. Good intentions without common sense can produce unintended bad results. It is that old law of unintended consequences.

One of the major problems is the laws can trample all over one of the main principles of our Constitution and our civil rights, the presumption of innocence. The presumption of innocence is one of the foundations of the administration of criminal law in the United States, England, and other countries that follow a common law tradition.

Under the red flag laws, gun owners can have their guns taken away by the authorities without proof of their having committed a crime.

Heres the problem: On the one hand, there have been numerous instances where mass shooters have given viable clues to their criminal intentions which have been overlooked and or ignored, as in the case of the shooter in Florida. Had red flag laws been used properly, it’s quite possible many lives could have been saved. The school administration ignored numerous clues of the shooters state of mind which should have been reported, but was covered up until it was too late.

On the other hand honest, legal gun owners can become victims of inappropriate, overzealous applications of the law resulting in violations of their constitutional rights.

An example of this is a man with the same name as as a guilty party who had his guns taken away, his name and reputation besmirched, and had to wait months and spend thousands of dollars to get his property returned.

Burden of proof laws helps reduce the risk of innocent people being deprived of their liberty and ensures that all citizens’ rights are better protected.

Red flag laws are fraught with danger from misuse when not necessary and can waste time and police resources, as well as becoming so commonplace from overuse as to be ignored, which can again have tragic consequences.

There is also the potential for the laws to be used by some people for nefarious reasons, i.e. ex-spouses, bad neighbors, gun haters and many others.

Beyond a reasonable doubt is a popular phrase, but one that is not always widely understood by the general public. Yet proving beyond a reasonable doubt that somebody committed an offense is a pillar of the common law criminal justice system.

If we are to make good use of “red flag” laws, they must be well thought-out and include provisions for injured innocent parties to have redress for the harm they incurred.

Certiorari is a formal request to a court challenging a legal decision of an administrative tribunal, judicial office or organization alleging that a decision has been irregular or incomplete, or if there has been an error of law.

Provisions for regress of injured parties should include:

  • An innocent but injured party must be able to have rights, property and reputation quickly restored.
  • In cases where malice was used under color of a red flag petition, the injured party must have the right to bring civil suit in court against the perpetrator for damages.

Everyone should agree that dangerous people, not legal guns, should be kept off the streets, but let’s use common sense and not abuse constitutional rights in doing so.

David Sayers graduated with a degree in business from Southern Oregon University in 1967 and a degree in criminal justice from Umpqua Community College in 2007. He worked as a reserve law enforcement officer for the Oakland Police Department beginning in 2007.

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