Port: North Dakota may have dodged a bullet because the way Florida is using its 'red flag law' sure looks like mass confiscation
MINOT, N.D. — During their 2019 legislative session, North Dakota lawmakers debated a so-called "red flag law," which would have allowed law enforcement, and concerned relatives, to petition the courts to take guns away from someone deemed to be dangerous.
The legislation was introduced by Rep. Karla Rose Hanson, D-Fargo, and even received support from some Republicans, notably Senate Majority Leader Rich Wardner, D-Dickinson .
Gov. Doug Burgum said the legislation was "worth considering."
Burgum spokesman Mike Nowatzki contacted me after this post was published Monday morning to provide a broader statement from last year describing the governor's position on red flag legislation: “We must ensure that law-abiding citizens aren’t denied their Second Amendment right without due process first, but if family members or law enforcement believe an individual is suicidal or mentally ill and a danger to themselves or others, and a process can be established through the courts to keep that person safe after ensuring their right to due process, that’s worth considering.”
Supporters of the law, including many in law enforcement, insisted the legislation, which was trounced in the state House , would promote public safety even as it protected our rights.
They explicitly denied that it was a gun-grabbing bill.
I disagreed at the time , and I certainly wasn't the only critic.
I think we critics were right.
Florida, held up as the paragon for this type of policy, implemented its law in March 2018. Since then, cops there have grabbed guns in thousands of instances, according to a recent Associated Press report .
But first, a refresher on how these laws work.
In Florida, law enforcement can petition the court to remove guns from someone they deem to be dangerous.
This person need not be charged with a crime. What the court is asked to do is predict whether or not the person might commit a crime.
If the court agrees with the cops at a hearing held within 24 hours of the petition, a search warrant is issued to go and get the guns. Within two weeks, the target of this confiscation receives an opportunity to defend their rights at a hearing.
If they're unsuccessful, and they usually are , they lose their guns for a year, and their name is entered into a national registry, which prohibits them from purchasing new firearms. After a year, the cops can petition for an extension.
North Dakota's law would have mostly worked the same way.
The problems with this are numerous.
This process puts American citizens in a guilty-until-proven-innocent situation. One of their civil rights is removed, along with some of their personal property, and they have to show up in court to prove they're not a danger to get them back.
Supporters of North Dakota's law said we can't wait until something bad happens before we do something about a potentially dangerous person's guns.
Waiting could also be described presuming someone is innocent until they're actually, you know, guilty of something.
People caught up in these orders have no right to an attorney. It's considered a civil proceeding, so there's no public defender. You'll either have to represent yourself against the cops and the courts or find the money for a lawyer.
If you don't have the money for that, you're on your own.
When I interviewed Rep. Hanson about her proposed bill last year , she gave the strong impression that this process was designed to be used in extraordinary circumstances. She stressed that orders to remove guns would be sought in emergencies.
Yet that doesn't seem to be what's happening in Florida. "The law, supported by legislators of both parties, has been applied more than 3,500 times," the AP reports , noting that the pace at which the law is used is "accelerating."
The AP analyzed county-by-county order rates and found that in one part of the state, one citizen in 850 had their guns removed.
PolitiFact found the law was being used about five times a day .
Does that sound like a tool being used by law enforcement in only extraordinary circumstances?
Or does it sound more like something law enforcement is now using as a routine matter to take guns away?
Gun control advocates no doubt see these numbers and rejoice. They'll tell us about all the guns taken from dangerous hands. I'll even admit that a lot of the folks in Florida targeted by this law probably were a danger to themselves or others.
Yet we cannot ignore that this law has allowed the preemptive removal of property, and a constitutional right, from thousands of citizens who often aren't accused of any crime ( only about a quarter of these orders are related to a criminal case ) and who have only their own resources, such as they are, with which to defend their rights and property from the awesome, limitless power of the government.
Has this law in Florida, and the other states which have passed it, made those places safer?
But at what cost to the protections around our constitutional rights?
Now that the government has developed a process through which one of our rights can be removed preemptively, with little in the way of legal protections, what other of our rights can be similarly denied?
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Rob Port, founder of SayAnythingBlog.com, a North Dakota political blog, is a Forum Communications commentator. Listen to his Plain Talk Podcast and follow him on Twitter at @RobPort.