Rounds

News and notes on guns in America

[Jake May/AP]

Daily Bulletin: ‘Red Flag’ Laws Are Popular. Do They Violate Due Process?

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WHAT TO KNOW TODAY

The due process concerns about “red flag” laws. Nineteen states and Washington, D.C., allow a petitioner — usually a family member or law enforcement officer — to ask a judge to temporarily disarm individuals deemed a threat to themselves or others. Also called emergency risk protection orders (ERPOs), the policies enjoy rare bipartisan support because of their life-saving potential. But they have also attracted opposition from gun rights and civil liberties groups that argue the laws either weaken Second Amendment rights or violate the due process of their recipients, especially those who are subject to ex parte orders that may be issued without a hearing. In a new article in the Virginia Law Review, Jacob Charles and Joseph Blocher of the Duke Center for Firearms Law argue that legal challenges to ERPOs will likely focus on due process. Broadly, Charles and Blocher said that because the Supreme Court has held that quick legal actions to protect public safety can outweigh due process concerns, ERPOs are largely on safe ground for now.

However, they noted a few legal questions the law’s supporters will have to reckon with. “One flashpoint in the laws is who can petition for an order, and some states have had pushback from both gun rights and civil liberties groups when the class of petitioners broadens out to individuals with more tangential relationships to the person alleged to be dangerous,” Charles told me by email. That was the case in California, which earlier this year expanded petitioners beyond family and police officers to include employers, co-workers, and teachers. More data on ERPO effectiveness could also influence legal opinions. Charles said that, because the policies are so new (most were passed after 2018), there remains a lack of evidence showing that they work. “That data will help policymakers and judges make decisions about the adequacy of the procedural safeguards in the law.”

The NRA looks to throw out the NY AG’s landmark case. The National Rifle Association is asking a state judge for a stay or dismissal of a lawsuit Attorney General Letitia James brought in August seeking to dissolve the organization. In court filings in Manhattan this week, the NRA points to several federal cases: one in Texas against its former public relations firm, another in Tennessee involving a major donor, and two cases in New York that allege hostile state leaders improperly targeted the organization. The NRA says it’s attempting to consolidate the majority of those federal cases, which are substantially related to the claims James makes in her lawsuit. Given the overlap, the NRA argues that it would be more efficient to stop James’ case while the federal cases proceed. The group also argues that James should have filed her case in Albany, rather than in Manhattan. James Fishman, an expert on nonprofit law, said in an email that the NRA’s arguments are largely procedural. “Much of the NRA response seems to be blowing smoke at the AG’s complaint,” Fishman wrote. “It doesn’t go to the merits.” —Will Van Sant, staff writer.   

Michigan AG says State Police will enforce law against voter intimidation if sheriffs won’t. Dana Nessel’s comments came on Showtime’s “The Circus” after she was asked whether the elected officials could be counted on to enforce laws against voter intimidation given the close ties at least one sheriff had to state militia groups. “Every place in the state of Michigan, there will be law enforcement that believe that voters need to be protected,” Nessel said.

Man charged with firing shotgun at Trump supporters. The alleged incident happened in Kingsville, Maryland, on Saturday after a father and his son said they honked at a man putting up a Black Lives Matter sign in his yard. They told police he immediately reached down to a shotgun he had and fired upon them. No one was injured, but the 50-year-old shooter faces felony firearm and assault charges.

The stark racial disparities of police traffic stops on Long Island. Newsday analyzed more than 230,000 traffic stops in Suffolk County between 2018 and 2020. It found that officers searched Black drivers over three times more and Hispanic drivers almost twice as much as white ones. At the same time, police found 10 percent less contraband (illegal drugs or weapons) on Hispanic and Black drivers compared to white ones.

DATA POINT

$7 million — how much the Philadelphia Police Department spent on overtime pay for officers during five days of protest in May and June. By contrast, the city’s Office of Violence Prevention has a budget of $9.5 million. [Abraham Gutman, The Philadelphia Inquirer]