Port: People targeted by gun-grabbing 'red flag' law would have to pay for their own defense

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Rob Port
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MINOT, N.D. - “You have the right to an attorney.”

We’re all familiar with that phrase, a part of the famous Miranda warning that’s a staple of television and movies and, you know, actual police work.

It’s formal recognition of the right to legal counsel from the Sixth Amendment.

Thank goodness for it. Can you imagine having your life and liberty put in jeopardy in our legal system without the guidance of a legal professional?

(Public defenders are the unsung heroes of the American justice system, and here in North Dakota they ought to get more funding, though that’s a topic for another column.)


This week state lawmakers held a committee hearing on so-called “red flag” legislation introduced by state Rep. Karla Rose Hanson, D-Fargo.

This bill is alarming. All the more so because behind it is a bipartisan coalition of lawmakers and law enforcement leaders from around the state.

In fact, the more I consider the legislation, the more I find to be alarmed about.

It would allow law enforcement to take away your guns and force you to attend a court hearing where you must prove you’re not dangerous to get them back.

If you want legal counsel to help you defend yourself in this guilty-until-proven-innocent proceeding you’ll have to pay for it yourself. If you can afford it.

This would be a civil proceeding. Public defenders only work criminal cases.

The bill directs state prosecutors to help those who wish to file a petition to remove someone’s gun rights, which means the accusers get legal assistance.

The person whose rights are in jeopardy does not.


Who is allowed to file papers to initiate this civil proceeding against your rights? Law enforcement and people the court deems to have a sufficient relationship with you.

Which is just about anyone. Including, perhaps, a vengeful neighbor or ex-spouse.

The penalty for an individual making false claims about you in this proceeding is merely a misdemeanor. If the state fails to make their case against you, they only have to give you your guns back.

At best the falsely accused get to live with a scar on their lives in the shape of formal and very public allegations against them.

Ever sought counseling for depression? Are you a veteran who has struggled with PTSD? Have you sought treatment for substance abuse? Those things could be used against you in this proceeding, which may make some fearful of seeking that sort of help in the future.

Law enforcement leaders backing this proposal say it would only be used rarely, but since when can we rely on the forbearance of cops?

History shows, when given a new tactic or tool, law enforcement pushes its use as far as possible and very often have to be reined in by the courts and lawmakers.

Having a mechanism to lawfully remove gun rights from someone who may truly be dangerous is a worthwhile goal.


This bill is absolutely the wrong way to achieve that goal.

Rob Port, founder of, a North Dakota political blog, is a Forum Communications commentator. Listen to his Talk Podcast and follow him on Twitter at @RobPort.

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