Red flag laws must protect individual rights
In its editorial (“New Mexico’s red flag law can be stronger,” Our View, Nov. 12) last year, The New Mexican omitted the need for due process as well as the need to facilitate the use of the state’s Extreme Risk Protection Order, or red flag law. A revised law should include both a right to counsel for those who cannot afford a lawyer, and employ the “clear and convincing” evidence standard when issuing a yearlong gun-removal order.
In the current law, there is no right to court-appointed counsel for those who cannot afford a lawyer. Yes, there is no current legal requirement under the rules of civil proceedings, but unlike any other civil proceeding, an Extreme Risk Protection Order proceeding strips a person of an enumerated constitutional right.
As Andrew Willinger of the Duke Firearms Law Center notes, “The question of whether to provide counsel in all ERPO proceedings is a legitimate area of policy debate.” In a legal critique of an early Rhode Island red flag bill, the Rhode Island ACLU stated, “Without the presence of counsel, individuals who have no intent to commit violent crimes could nonetheless unwittingly incriminate themselves regarding lesser offenses.”
The current law also can deprive individuals of their rights to own a gun on the simple “preponderance of evidence” standard, which is the lowest of the standards usually used in court proceedings, below “beyond a reasonable doubt” and “clear and convincing.” A person without a lawyer not only has to face a system with which the person is most likely unfamiliar, but an evidence standard that can deprive a citizen of an enumerated right by a standard of evidence barely better than a coin flip. And what judge wants to be wrong when faced with a possible shooting, and thus err on the side of public safety?
In contrast to our law, a model federal red flag bill, House Resolution 2377, had both a higher standard of proof, the “clear and convincing” standard and a right to counsel, as does a model Cato Institute version of such a law. The higher burden of proof is present in a fair number of other state red flag laws as well.
As the Rhode Island ACLU said about the bill it criticized, and which is true of red flag laws in general, “The heart of the legislation’s ERPO process requires speculation — on the part of both the petitioner and judges — about an individual’s risk of possible violence. But psychiatry and the medical sciences have not succeeded in this realm, and there is no basis for believing courts will do any better. The result will likely be a significant impact on the rights of many innocent individuals in the hope of preventing a tragedy.”
Therefore, we need to ensure not only that a red flag law can be more effectively and efficiently utilized when needed, but also that “the rights of innocent individuals” are protected as well. We need to pay attention to both these concepts when the Legislature looks once again at a red flag bill.