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A recent incident in Maryland where a man was killed by police attempting to serve a “red flag law” warrant reported by ABC News (https://abcn.ws/3a2uN8m) and The Guardian (https://bit.ly/38Vq8DD) has sparked discussion on the use of red flag laws. There are several problems with these laws.
First and foremost is the tie to guns and Second Amendment challenges. The knee-jerk reaction to gun violence is to enact a new law in effort to “do something” and red flag laws seem to be the flavor of the day.
While seemingly well-intentioned, the creation of a red flag law in response to a gun violence incident is a blatant effort to create a path to confiscate guns from law-abiding citizens. Otherwise, they would not specify removing guns and would include proper due process using credible probable cause.
This points to another major problem with a red flag law — that it’s a direct violation of the U.S. Constitution’s Fourth Amendment that protects citizens from unreasonable search and seizure, as well as, the Fifth Amendment, which guarantees due process.
All of this considered, the safety of the public still must be protected. Victims of violent incidents feel especially abandoned when their attack could have been prevented and there is nothing in place to do so. On the other hand, someone cannot be arrested or detained just because they “may” commit a crime. That brings up the most compelling problem with a red flag law. If someone is considered a credible threat to society, what is the appropriate measure keeping within the confines of the Constitution? The answer to that is not easy or simple, and it is not a red flag law.
Use of existing laws for potential victims through restraining orders, orders of protection, etc. to provide due process provides the constitutionally acceptable answer. That means potential victims need to be active participants to help in their own protection. These potential victims need assurance that their efforts will not increase the threat, so law enforcement should also be more aggressive in enforcing these protective orders.
Finally, guns are not the problem that needs to be addressed, it is the violence by individuals who use any weapon to accomplish their act. When we recognize that reality, then we can fix the violence problem. Until then, we will continue to trample on the rights of law-abiding citizens by creating knee-jerk, reactive laws.
The writer is the Republican candidate for N.C. House District 24.