The law now states that all you need is to call authorities and claim the person made threatening statements or actions. No proof is required. Law enforcement must act in good faith because if they don’t, and the person actually does do something, they can be held liable for failure to act.
If the officers can get the RP to sign a 3rd party affidavit, that’s fantastic. But it’s not required.
Bye bye to the accused for a 3-5 day mental health evaluation. Then there are the social ramifications of such an involuntary commitment. Out of safety for their children, a husband, or wife, can be ordered to only have supervised visitation. If someone finds out at their work, they can be ostracized. Sure, they can sue. So what. That doesn’t really solve anything.
No, they cannot be liable for failure to act (see Winnebago Cty Social Services v. DeShaney). The red flag laws vary in operation, some allow ex parte hearings with another hearing where all parties are represented (as per due process requirements). Some allow only law enforcement and professionals to report, and so on. They are not civil commitment hearings which exist in every state but are a separate kettle of fish more akin to civil forfeiture laws.
For example, a disqualifier for mental illness does not include observation periods but only when the following has occurred when a person is. . .
"27 CFR 178.11 Adjudicated a mental defective
(a) A determination by a court, board, commission, or other lawful authority, that a
person, as a result of marked subnormal intelligence, or mental illness, incompetency,
condition, or disease:
(1) is a danger to himself or others; or
(2) Lacks the mental capacity to manage his own affairs.
(b) The term shall include –
(1) a finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack
of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military
Justice, 10 U.S.C. 850a, 876(b)."
and is
"27 CFR 178.11 Committed to a mental institution
A formal commitment of a person to a mental institution by a court, board, commission,
or other lawful authority. The term includes a commitment to a mental institution
involuntarily. The term includes a commitment for mental defectiveness or mental
illness. It also includes commitments for other reasons, such as for drug use. The term
does not include a person in a mental institution for observation or a voluntary admission
to a mental institution.
and then subsequently confined to a mental institution defined as . . .
"27 CFR 178.11 Mental institution
Includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and
other facilities that provide diagnoses by licensed professionals of mental retardation or
mental illness, including a psychiatric ward in a general hospital.
For more information:
61 FR 47095 Notice of proposed rulemaking. September 6, 1996.
62 FR 34634 Final rule, Treasury decision. June 27, 1997."
Here is a few of the cases defining firearms disability,
U.S. v. Hansel, 474 F.2d 1120 (8 th Cir. 1973)
Nebraska law provided a two-step procedure for determining if a patient was
mentally ill and in need of hospitalization:
1) the patient may be temporarily hospitalized, up to 60 days, for observation if
the County Mental Health Board determines he is mentally ill and in need of
hospitalization, and
2) the patient may later be committed to the hospital if the superintendent
determines he is mentally ill and should be admitted, and certifies this to the Board.
Defendant had been hospitalized under step #1. He was found not to have a
serious mental disorder and was released after two weeks. Step #2 was not reached. The
Court found that this did not count as a commitment.
U.S. v. Giardina, 861 F.2d 1334 (5 th Cir. 1988)
Louisiana law provides for “admission by emergency certificate.” A doctor
examines the patient and certifies mental illness or substance abuse, and dangerousness.
This allows for transportation and admission to the hospital. Within 72 hours of
admission, examination by a second doctor is required. If the patient is to be held beyond
15 days, there must be a judicial commitment.
Giardina was admitted under this procedure, but discharged by the hospital before
a hearing was required.
The Court found that this did not count as a commitment.
Thus, the civil commitment procedures have greater protections for an individual than the due process so far in most of the red flag laws.
The reason that this is problematic is the due process protections for "temporary" property seizures by authorities is less than that of civil commitment laws which require clear and convincing evidence (as per Addington v. Texas (1978) and Comstock, require representation (if necessary at state cost for indigents) before committal, etc.
For example, "the pending Colorado law requires only a “significant risk” of damage in the indefinite future. In New York, the standard of proof is only “probable cause,” and in Colorado, “a fair preponderance of the evidence.” Neither state’s law requires the petitioner to post bond, even if he or she can afford to do so." See Epoch Times
https://www.theepochtimes.com/some-...-kill-more-people-than-they-save_2822930.html
These make property seizures of firearms more akin to search warrants along with those dubious stds. rather than the as the takings clause due process promulgated by the Court via Londoner v. Denver. There is also a failure of these laws to address redressing the injury to the innocent. In essence, it is treating firearms owners as "pre-criminals" rather than citizens via take first and adjudicate later. That standard is more appropriate to probationers, parolees, and felons, in possession than citizens. The ex parte (a hearing where only one side, the state is represented) seizures also risk needless encounters with law enforcement during seizures. We have enough problems with no-knock warrants already. This is a result of the derogation of property rights in this country. Regulation of businesses that were widely supported by the public has now trickled down to the average citizen via asset forfeiture laws, regulations that render property valueless, and so forth. To paraphrase Blackstone, "A Man's House is his castle on rental agreement with his landlord, the State."
