In the past, we have examined the history of red flag laws, the arguments both for and against the adoption of red flags laws, and the studies that evaluated how effective the adoption of such laws has been in those states. This week, we are addressing the intersection of due process rights and red flag laws. This blog is not the first nor will it be last time someone has considered the intersection of due process rights and red flag laws. The NRA has evaluated proposed red flags laws in Rhode Island, Utah, and Maryland and opposed those laws on the issue of due process.
In order to help you evaluate whether any red flag law in Michigan violates due process, an understanding of due process is needed. First, there are two types of due process: substantive and procedural. Substantive due process issues look at how the states exercise their power to regulate certain activities, such as freedom of expression or the freedom of association. Procedural due process issues require an analysis of the procedure required by the Constitution when the states seek to deprive citizens of life, liberty, or property.
In Boddie v Connecticut, 401 US 371, 379 (1971), the United States Supreme Court ruled that due process requires “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” In Mathews v Eldridge, 424 US 319, 333 (1976), the Court recognized that it “has consistently held that some form of hearing is required before an individual is finally deprived of a property interest.” The Mathews Court stated that “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965)). This rule has limited exceptions that are triggered only by a true exigency.
In the history of the United States Supreme Court, few circumstances have qualified as exigent ones. In Bowles v Willingham, 321 US 503,521 (1944), the Court permitted the government to unilaterally set rents in defense-area housing accommodations during World War II. In N Am Cold Storage Co v City of Chicago, 211 US 306, 320, the Court permitted the government to immediately destroy tainted poultry to avoid exposing the public. In Barry v Barchi, 443 US 55, 65 (1979), the Court allowed the government to temporarily suspend a horse trainer from further racing if there was evidence of doping. In Mackey v Montrym, 443 US 1, 17-18 (1979), the Court said that the government can temporarily suspend someone’s drivers license when there is strong evidence that the person was drunk driving. The Court allowed these actions because any delay would have allowed destructive or harmful behavior to continue.
With red flag laws already adopted by states across the United States, the judge can issue an ex parte order that seizes the firearm if there is an immediate risk of harm for a limited period of time (in most states, this is fourteen (14) days). At an ex parte hearing, the judge only hears evidence from the petitioner. The subject of the petition will not be able to prevent a defense until after the firearms have been a seized and a final hearing is held. David Kopel, research director at the Independence Institute, said that he believed Vermont had “a fair system, which requires ‘specific facts’ that show an ‘imminent and extreme risk.’” Kopel said, “When it comes to seizing guns through a temporary order, the standards that a judge uses should be high.” Pinellas County Sheriff Bob Gualtieri said that the standard is high and requires “clear and convincing evidence.” However, in some states the burden of proof required is a preponderance of evidence, which is one of the lowest burdens of proof in civil cases.
In a hearing before the United States Senate Judiciary Committee, David Kopel said, “Constitutional requirements of procedural due process are at their height when an individual is deprived of a “fundamental” enumerated right. The right to keep and bear arms is such a right. McDonald v. City of Chicago, 561 U.S. 742, 778 (2010).” Kopel went on to say that “the courts have identified seven key elements in procedural due process: notice; a neutral decision-maker; an opportunity to make an oral presentation; the opportunity to present evidence; the opportunity to cross-examine witnesses and respond to evidence; right to representation by counsel; and a decision based on the record, and reasoning for the result.” He further stated that “an ex parte system deprives individuals of five of the seven elements of due process: notice, opportunity make an oral presentation, opportunity to present evidence, cross-examination and response to evidence, and the right to counsel.” In response to a question from Senator Ted Cruz (R-Texas), Kopel laid out what he believed should be the minimum due process protections in red flag laws:
- Ex Parte hearings only if petitioners prove it to be an absolute necessity in the case of immediate danger;
- Evidence should be “clear and convincing” at all levels of hearings throughout the process;
- Respondents to the petitions should have a legal counsel, even if appointed by the court;
- The right to bring forth witnesses to support their case and cross-examine witnesses brought against them; and
- The ability to seek justice for any false or malicious testimony used to strip them of their right to bear arms.
When it comes to evaluating whether any proposed red flag
law in Michigan meets the procedural due process, ask yourself does it meet the
seven key elements of procedural due process that David Kopel identified and
does it have the minimum due process protections that he provided in response
to Senator Ted Cruz’s question.
 Stanglio, Doug. “Should guns be seized from those who pose threats? More states saying yes to red flag laws.” https://www.usatoday.com/story/news/nation/2019/05/01//red-flag-laws-temporarily-take-away-guns/35214910027. Last accessed on August 29, 2019.
 Vasilogambros, Matt. “Red Flag Laws Spur Debate Over Due Process.” https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/09/04/red-flag-laws-spur-debate-over-due-process. Last accessed on September 19, 2019.
 Grogan, David. “Red Flag Laws, Firearms, & Due Process.” Conservative Partnership Institute. https://www.conservativepartnership.org/post/628/red-flag-laws-firearms-due-process. Last accessed on September 18, 2019.
 Kopel, David. “Red Flag Laws: Examining Guidelines for State Action” https://www.judiciary.senate.gov/imo/media/doc/Kopel%20Testimony1.pdf. Last accessed on October 7, 2019.