Speech: A comprehensive look at Red Flag laws

August 20, 2018 – Vestal, NY – This is an amended transcript of a speech, made by <a href="M V Consulting Inc and Liberty First Foundation NY Chapter president Michael “Vass” Vasquez to the members of the Americans for Restoring the Constitution (AFRTC) and the general public at the Vestal Public Library. The speech is an over 8,000 words long in-depth observation of Red Flag legislation in New York State and across the nation. Due to the length of the details and data, compiled from over 50 sources in an on-going investigation, in-context excerpts are being provided. Also due to time constraints, the actual live presentation truncated portions of the original documentation, without alteration of the data, details, or context.

Video of speech (amended for time):
[youtube https://www.youtube.com/watch?v=KKKEm-ou5Hw&w=560&h=315]

Video: Q & A from audience after presentation – [youtube https://www.youtube.com/watch?v=BuUf4tD0BaE&w=560&h=315]

Let me start with something that shouldn’t need to be said. Everyone in America wants to be safe. There is no one in their right mind that is not in favor of ending mass shootings and their subset school shootings. Politics should have nothing to do with this process, and it has nothing to do with my presentation today. While we may disagree with the process to get there, that is the end goal we all want to achieve. A safer, better America.

But the path we take to that end goal is important. The consequences to the route to a safer America must be considered. We cannot recklessly, or emotionally, rush forward out of a need to “do something” that ultimately is either ineffective, or worse causes even greater damage to our nation and society in the long run…

America is a unique nation in the world because it was started not by 1 group of people, but by several groups of people with different histories, cultures, beliefs, and language. Therefore the core commonalities of all these groups were combined to create our Constitution. Somewhat of an over-simplification, but accurate all the same…

We are individually free, with inherent Rights, and create government by our will. Government therefore is limited, both in what it can do and what it can affect. In understanding this definition of freedom, life and government we can understand the rest of the discussion. Because only the people can ask for, or allow, our freedoms to be exchanged for greater power of Government and/or restrictions by law…
Red Flag laws in New York State
Perhaps one of the least discussed or understood Amendment is the Fifth. It contains the Due Process Clause – the linchpin of our legal system. In addition the Fourteenth Amendment further fills any gap that can be construed in Due Process. The realization of this was far more eloquently stated, by Justice Henry Friendly in 1970 in the article “Some Kind of Hearing”, as he established guidelines for Due Process:

    1. An unbiased tribunal.
    2. Notice of the proposed action and the grounds asserted for it.
    3. Opportunity to present reasons why the proposed action should not be taken.
    4. The right to present evidence, including the right to call witnesses.
    5. The right to know opposing evidence.
    6. The right to cross-examine adverse witnesses.
    7. A decision based exclusively on the evidence presented.
    8. Opportunity to be represented by counsel.
    9. Requirement that the tribunal prepares a record of the evidence presented.
    10. Requirement that the tribunal prepares written findings of fact and reasons for its decision.

It may be shocking for some that in 2014, Professor Fox’s research – based on mass shootings involving 4 victims or more and not including the shooter – showed that on average there has been no increase in mass shootings over decades of research. On average there are about 20 events with 100 victims each year – or roughly 5 victims for each mass shooting event…

To put things into greater clarity, the subset of school shootings, cited by many politicians as being a reason for pushing Red Flag legislation, is also far less fearful than modern 24/7 news cycles would like the general public to believe. In fact, according to a study between 1992 and 2015, done by Professor Fox and doctoral student Emma Fridel,

“There are around 55 million school children in the United States, and on average over the past 25 years, about 10 students per year were killed by gunfire at school”

For the year 2016 there were a total of 15 incidents where a firearm was fired on school grounds. This resulted in 9 deaths and 26 injuries. None of these incidents qualify as a school mass shooting per Professor Fox. Only 5 incidents resulted in casualties of 4 individuals each and none had more than 4 casualties. This includes the relatively well publicized UCLA shooting and the Madison High School shooting in Ohio…

According to CNN there have been 23 school shootings as of May 25, 2018. They claim that this equates to 1 shooting per week. To be exact the headline of the article is, “There has been, on average, 1 school shooting every week this year”. But if you read further into the article, their ranking is any incident where at least 1 person was injured, including accidents and gang-related causes, and domestic violence, for people of any age, as long as it took place on school grounds. The CNN list includes a person shot by a BB-gun. Surprisingly the City of Chicago is not a location on their list – though that was before the weekend of August 6, 2018.

This is the environment of the current day. The number and type of incidents are hyped by media to create fear. This kind of misdirection, where social media focuses on the headline and maybe a sentence or 2 of the first paragraph, has been a driving force for the anti-2nd Amendment movement. Within days of the Parkland shooting, the hype was rampant, with overinflated generalizations of shootings, like that of CNN and other news media, flooding twitter and headlines across the nation…

So now we understand most of the key facts in the background, but what is a Red Flag legislation? Well it goes by many names, the most common ones being Red Flag or Extreme Risk Protection Order or ERPO. There are some variations in different states but key words “risk” and “protection” are often included.

Whatever name it may go by, several consistent themes are present:

    1) Law enforcement, and possibly other individuals depending on the State – which can be family members, current or former roommates, teachers, temporary part-time team sports coaches – can initiate the Red Flag process.
    2) A warrant must be received from a Court – though some legislation like in Indiana allow for a retro-active warrant.
    3) There must be a determination that a threat exists to either the target of the legislation or a larger group of people – household, school, work, community at large, ect.
    4) Proof of danger, if required, can be the purchase of a firearm and/or ammunition and/or a “dangerous instrument” – which has no definition – within a timeframe of a week up to 6 months.
    5) The entire process can, and normally is, conducted ex parte – meaning that the target of the legislation is never informed until a determination against them has been made, often only occurring at the time of seizure.
    6) All firearms present are seized by law enforcement on behalf of the government.
    7) The target of the legislation then has a varying timeframe to challenge the determination, and seek to regain their firearm(s). That timeframe can vary from 14 days to 1 year.
    8) The government, if they lose the challenge, can provide the firearm(s) or its equivalent value within a timeframe, up to 180 days of loss. In some cases firearm(s) can be destroyed by the Government.
    9) No provision for remuneration exists for someone falsely accused.

Alternative poster of Minority Report by Kevin Wilson
Opponents of Red Flag legislation start with the inherent violation of individual freedom that the laws create. The question is how it affects the Second Amendment, the Fourth Amendment, and Due Process. Greg Pruett, an opponent of Red Flag laws in Idaho and writer of 2ndAmendmentActivist.com responded to my request for comment saying,

“Have you ever seen the movie Minority Report? In the Tom Cruise thriller, several people called “precogs” can see into the future and determine who is going to commit murder. However, before the murder takes place, the police go and arrest the individual and lock them away for life. The individual didn’t actually commit the crime and isn’t given the opportunity to defend themselves in court. In the end, Tom Cruise’s character exposes several flaws in the system, primarily the decision of a person to be able to choose their own path, not what others predict that person is going to do.”

If it is correct that there is a violation of these Amendments, then the 2nd and 4th Amendments are violated once a Red Flag law is acted upon. The Second in that the Right to bear arms is infringed. The 4th in that the seizure is unlawful and the warrant is without true probable cause. The 5th as there is no Grand Jury, there is deprivation of property, and no Due Process. The 14th as again, there is no Due Process…

So virtually all the Assemblymembers I was able to speak with or receive information from on this subject, agree that Due Process is essential. And that these Bills, in the current forms at least, have issues with Due Process. While most are concerned with the aspect of returning firearms, I believe they have missed the point. Due process has been violated, and thus other Rights as a consequence, long before the question of return comes up…
Rep. John Katko
Yet, Rep. John Katko recently stated that he plans to propose a Red Flag Bill to Congress in the next session. He reiterated the same flawed logic as stated by each Assemblymember. Flaws I will go into in a moment. He said,

“The bill wouldn’t allow officers to confiscate guns without a warrant. While it protects the Second Amendment rights of gun owners, it also ensures family members or law enforcement can request an order from a judge to remove guns if an individual poses a serious threat to themselves or other people.”

But Red Flag Legislation, in every form in each State that we have been able to identify, violate the Judge Friendly guidelines of Due Process mentioned previously. They violate the unbiased tribunal in that there is an accuser making an allegation of danger, and a court evaluating that danger without a crime. It is a subjective determination of danger, without empirical fact, about an uncertain future outcome.

There is no notice provided to the accused, as Red Flag legislation can and are almost always done as an Ex Parte action. Meaning that the accused is never notified of the proceedings. In addition, because it is Ex Parte, there is no one to guarantee or even attempt to ensure the Rights of the accused. Nor is the opportunity to defend the accused a guarantee or even considered.
AFRTC and public learn about Red Flag legislation
Evidence cannot be produced by the accused to defend themselves, until AFTER the fact. Evidence in favor of the Red Flag action, depending on the exact legislation can be a vague and indefensible as buying a hammer within 6 months. The common term, or its equivalent, of dangerous instruments can be defined as literally anything, especially considering the enormous category of items used to commit murder as recorded by the FBI and CDC.

There is no guarantee, as this is an Ex Parte action based on an accusation of individuals that may not, and commonly do not, have legal or law enforcement backgrounds, that a decision will be reached based on actual evidence. In fact the initiating cause is by definition an emotional determination of potential future actions, which means evidence cannot exist. This is further complicated by the fact that legal representation for the accused not only is not an option, it cannot be an essential fact of the process UNTIL after action has been taken…

If we applied these same principles to any other law, would it stand in a court and/or would the public accept it? Thus, an individual is standing on the sidewalk in front of a bank. The individual looks down the road one way and then the other, while shifting side to side. A person at a window observes this, calls the court, and has the person detained for bank robbery – BEFORE action has been taken. The now detained citizen has the right to go to court and fight the incarceration for an action where no crime has occurred. Is this Due Process? I think we all agree. The same example and outcome can be reached with presumption of personal assault, or any other crime you can consider…

Setting that aside, what about the impact on a family. A consequence that is directly related yet never addressed by the legislation nor any politician that has voted for ERPO’s is what happens to any children present. While Bill A11148 in New York allows for a part-time temporary badminton coach, and potentially almost any member of a school or school system, to initiate an Extreme Risk Protection Order, the fact that it affects more than just ownership of firearms is never addressed. In fact EVERY version of ERPO’s, in virtually every State of the nation, has an additional component that few realize. That is that any children present in a household must be removed for their own safety.

How is that possible? Why would that happen? These are good questions to ask. Consider this, New York State is a mandatory reporting State for Child Protective services. As is Connecticut, which has the oldest ERPO in the nation enacted in 1999. So is Indiana which was the second State to enact these laws. These States must notify their respective CPS as a court has deemed a location/individual a danger. Per the mandates of CPS, they must act to protect the child from the legally identified and significant danger – which includes removal of that child from the danger…
Election Initiative 1491
What can be asserted is that there have been 1500 Red Flag actions in the State of Connecticut since 1999. The frequency of these actions were in the dozens until 2007 where actions have increased 500% to over 100 per year according to a 2017 Duke Law study. According to the Indiana Attorney General Curtis Hill Jr. in a conversation with NPR in March 2018, the number of Red Flag actions is unknown. A June 2018 study (I will get to this in a moment) cites at least 404 Red Flag cases…

Further, 51% of the initiating reports causing the Red Flag action came from individuals who did not know the defendant or declined to identify themselves. 16% of the Red Flag actions in Connecticut did not indicate if there was a danger to the individual or others, the core written purpose of the law.

99% of the cases in the study show that a search was made by the warrant issued, with an average of 7 guns seized by the Government. 88% of all the cases did not result in an arrest of the target of the Red Flag action. In fact that 88% had no arrest within 1 yr prior through 1 yr after the Red Flag action. 27% of the Red Flag actions in Connecticut resulted in no further action by law enforcement…

Further it should be noted again that Red Flag legislations heavily-implied purpose is not suicide prevention. While that is an aspect of its purpose – as is domestic abuse prevention as stated by Asseblymembers Crouch and Lupardo, as stated by various politicians in multiple States the actual purpose is a reduction in mass shootings. Therefore any reduction in gun-related suicides, which is debatable based on the dearth of studies to date, is a beneficial by-product…

Florida was the first to react with its own version of the Red Flag legislation. Since that time in March, 450 people have had their firearms seized by July, for about 75 people per month. That’s about the annual average, post- 2007 with heightened activity, for the State of Connecticut. As reported by news 100% of requests for warrants in Pinellas County have thus far been granted. Thus far, research has not identified any time that a Red Flag legislation has ever been denied a warrant when requested – though such data may not exist as no action was taken…
Senators Bill Nelson and Marco Rubio
It’s not enough to have a single politician, or even a majority of them in a single State, stop this current set of flawed ERPO legislation in New York given that Rep. Katko, intends to release a version of the Red Flag legislation on the floor of the House of Representatives before 2019. In addition, another Red Flag Bill (S2607) has already been submitted to the Senate by Senators Marco Rubio, Jack Reed, and Bill Nelson which contains many of the same flawed language and reasoning as detailed previously in addition to new language that is equally vague and troubling…

Therefore, I ask, are we trading the illusion of safety for violation of Rights, freedoms, and the function of law? In review, in each State and at the Federal level, Red Flag legislation can most simply and readily be summarized as using the emotional fear of an individual about a potential future outcome of another individual, as a justification to use the courts to enact an often partisan political objective.

Ultimately, Red Flag legislation, under whatever name and form created, is simply enforcing a general and media-fueled emotional hype, to punish American citizens that have violated no law, and whose only fault – according to some – is the Constitutionally backed execution of their Rights, via a process of turning the court system on its head by legalizing guilt before innocence and punishment without a trial by jury…

Red Flag legislation, while having a stated intent of furthering the safety of the populace, fails. It’s consequences are predictable – in fact are legal mandates in many cases – and erode the very freedoms that are the foundation of a nation that today is proudly seen as the most free, most generous, and most powerful in the world. I believe, and I think I have proven, that Red Flag legislation (under whatever name) poses a greater, though different, threat than the issue it proposes to resolve. It is less immediate to see but all encompassing in its reach and devastation…

So it’s up to you to share this, spread the word, and make the public aware.

Thank you.

Partial list of Sources:

https://cases.justia.com/federal/appellate-courts/ca5/11-30198/11-30198-2012-03-15.pdf?ts=1410995883
https://supreme.justia.com/cases/federal/us/427/539/
https://www.oyez.org/cases/1900-1940/283us697
https://www.law.cornell.edu/supremecourt/text/424/319

What You Need To Know About Red Flag Gun Laws


https://www.leagle.com/decision/infco20120315128
http://www.mvass.com/2018/06/28/exclusive-interview-with-assemblyman-clifford-crouch-of-the-122nd-district-of-new-york/ Jun 28, 2018
http://www.mvass.com/2018/07/21/exclusive-interview-ny-123rd-assemblywoman-donna-lupardo-speaks-in-studio/ July 21, 2018
http://www.mvass.com/2018/07/26/loss-of-due-process-to-red-flag-legislation-may-become-national-law-soon/ July 26, 2018
https://www.rubio.senate.gov/public/index.cfm/press-releases?ContentRecord_id=A1C5B7D3-D60C-42E0-BEE9-AAA74B1416D4
https://www.govtrack.us/congress/bills/115/s2607
https://www.congress.gov/bill/115th-congress/senate-bill/2521
https://www.govtrack.us/congress/bills/115/hr5717

Schools are safer than they were in the 90s, and school shootings are not more common than they used to be, researchers say


https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4830&context=lcp
http://riaclu.org/news/post/aclu-of-rhode-island-raises-red-flags-over-red-flag-gun-legislation

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