# Do red flag laws violate the 5th and 6th Amendments? (US) **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2022, 8:35pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260 "2022-06-15T20:35:09Z")\ **Posts on this page:** 13\ **Page:** 3
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 17, 2022, 8:45pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/43 "2022-06-17T20:45:51Z")
> [@Max\_S](#): > > This raises a complicated philosophical question. Do state judges establish and abridge property rights - do they _make_ common law - or do they merely _find_ whether a property right exists at common law? If a judge issues a protective order for me to surrender all firearms &c, did the judge _take away_ my right to use my property for lawful purposes, or did the judge _find_ that in my present state I _have no right_ to use this property? If it is the former, I would call it a taking. If it is the latter, I would not. Great post, thank you!! > [@Little\_Nemo](#): > > The fifth and sixth amendments protect the rights of people against government action without due process. The article you linked to says the red flag laws incorporate due process. The ACLU is concerned that not all of them do so. But it seems most do. > [@Martin\_Hyde](#): > > That is the same way we issue search and arrest warrants. You generally don’t have the ability to contest those prior to issuance and execution. It is just possible to quash a Search warrant before the search. Rare, but it does happen. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [June 17, 2022, 8:51pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/44 "2022-06-17T20:51:39Z")
> [@Kimstu](#): > > While being part of a bunch of opinionated nonspecialists arguing about their semi-informed opinions in complete disregard of the views of knowledgeable professionals is one of the things I love best about the SDMB, I do feel that before embarking on this conversation we ought to take at least a perfunctory look at opinions from people who are acknowledged experts… > [@Exapno\_Mapcase](#): > > Just to let you know that I am going to quote this forever. I feel like > WBPOABOONAATSOICDOTVOKPIOOTTILBATSIDFTBEOTCWOTTALAPLAOFPWAAE should become a standard SDMB disclaimer prior to citing expert opinion that rebuts all preceding ill-informed speculation in the thread. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 18, 2022, 5:08am UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/45 "2022-06-18T05:08:12Z")
> [@DrDeth](#): > > The ACLU is concerned that not all of them do so. But it seems most do. I would agree that those laws which do not include a due process procedure would be unconstitutional. The fifth amendment explicitly says you cannot be legally be deprived of property without due process. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 21, 2022, 12:12am UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/46 "2022-06-21T00:12:24Z")
> [@Saint\_Cad](#): > > As a layman, I would think one constitutional issue would be the level of evidence needed to seize the guns. The Florida law cited in post #1 only allows the police to seize the guns after a protective order is in place. And then only if a judge, based on a sworn statement or testimony, has probable cause to suspect the order has not been followed. > Notwithstanding ss. 933.02 and 933.18, upon the sworn statement or testimony of any person alleging that the respondent has failed to comply with the surrender of firearms or ammunition owned by the respondent, as required by an order issued under this section, the court shall determine whether probable cause exists to believe that the respondent has failed to surrender all firearms or ammunition owned by the respondent in the respondent’s custody, control, or possession. **If the court finds that probable cause exists, the court must issue a warrant** describing the firearms or ammunition owned by the respondent and **authorizing a search** of the locations where the firearms or ammunition owned by the respondent are reasonably believed to be found **and the seizure of any firearms or ammunition owned by the respondent discovered** pursuant to such search. > [@pkbites](#): > > It has nothing to do with saving lives. If it did they would focus more on the individual who is acting nutty. You may be unaware but in Florida we also have what is known as the “Baker Act”. In high school for example we would talk about kids (or their parents) who were “Baker acted”. You can read the law for yourself at [Fla. Stat. 394.463](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0394/Sections/0394.463.html), or you can read a summary provided by the state [here](https://www.myflfamilies.com/service-programs/samh/crisis-services/laws/InvoluntaryInpatientPlacement.pdf). Basically the state can take you into custody and force you to undergo a mental health evaluation in the following circumstances. 1. A judge “may” enter an _ex parte_ order (without your presence), to be carried out by a law enforcement officer or other agent of the court, for you to be involuntarily examined for mental illness if he or she has “_ **reason to believe** _” that you are mentally ill, and that due to your mental illness: 2. Any law enforcement officer who thinks you _ **appear to meet** _ the above criteria “shall” take you into custody and deliver you to an appropriate, or the nearest, designated facility for mental health evaluation. 3. A physician may execute a certificate stating they examined you and find that you meet the above criteria. Once the order is on file LEOs are authorized to break into any building, day or night, with any appropriate level of force and take you into custody. All firearms on your person are forfeit while you are in custody, even if you are apprehended in your home at the dead of night without any previous notice. If taken at your home the LEO is also authorized to petition the court to search and seize any firearms on the premises. Since the criteria for the temporary (72hrs) ex parte order under the red flag law is actually looser than the Baker act (the latter requires belief that a mental illness is involved), I don’t see how this petition could fail. It doesn’t seem to matter if you would prefer to leave i.e. your spouse with a firearm for self defense while you are hauled away by the state. After the state delivers you to a facility for a mental health examination, they have 72 hours to decide whether to involuntarily commit you or release you (12 hours for minors). If released the state has 24 hours to return your firearms, unless a protective order under the red flag law was granted. Involuntary commitment, or rather involuntary outpatient service, is governed by [Fla. Stat 394.4655](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0394/Sections/0394.4655.html). The physician who examines you will determine whether you meet the criteria for placement in involuntary outpatient services. You can follow the above link but the criteria basically boils down to if they diagnose you with a mental illness, if you are noncooperative with treatment, and if you have a history of violent behavior. If the physician thinks the criteria is met the court is petitioned and you get a hearing. If the court finds that you meet the criteria by _ **clear and convincing evidence** _, you have to undergo involuntary treatment services. Likewise the standard at the hearing under the red flag law is _ **clear and convincing evidence** _ that you pose a risk of injury to yourself and others through the use of firearms. In either case, you do not have to be accused of any crime. ~Max ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [June 21, 2022, 2:20pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/47 "2022-06-21T14:20:43Z")
> [@Max\_S](#): > > The Florida law cited in post #1 only allows the police to seize the guns after a protective order is in place. And then only if a judge, based on a sworn statement or testimony, has probable cause to suspect the order has not been followed. Which does not address how low the standard of evidence is to originally issue the protective order. The probable cause only addresses whether or not they complied. So again, can Karen say, “I don’t trust him. He looks angry.” and get a judge to issue the order? ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 21, 2022, 2:27pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/48 "2022-06-21T14:27:17Z")
> [@DrDeth](#): > > It is just possible to quash a Search warrant before the search. Rare, but it does happen. Maybe lookup what the word “generally” means. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 21, 2022, 4:17pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/49 "2022-06-21T16:17:50Z")
> [@Saint\_Cad](#): > > Which does not address how low the standard of evidence is to originally issue the protective order. From what I can see, the standard generally needed for an order of protection is a preponderance of evidence. In Florida specifically, the standard is "competent substantial evidence”. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 21, 2022, 9:06pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/50 "2022-06-21T21:06:31Z")
Was this snark really needed? ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 22, 2022, 1:06pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/51 "2022-06-22T13:06:59Z")
> [@Saint\_Cad](#): > > Which does not address how low the standard of evidence is to originally issue the protective order. > [@Little\_Nemo](#): > > In Florida specifically, the standard is "competent substantial evidence”. > [@Max\_S](#): > > [T]he standard at the hearing under the red flag law is _ **clear and convincing evidence** _ that you pose a risk of injury to yourself and others through the use of firearms. Fla. Sta. 790.401 (3)(b): > Upon notice and a hearing on the matter, if the court finds by **clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition** , the court must issue a risk protection order for a period that it deems appropriate, up to and including but not exceeding 12 months. A temporary _ex parte_ order, however, requires only “reasonable cause”. Fla. Stat. 790.401 (4)(c): > If a court finds there is **reasonable cause to believe that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition** , the court must issue a temporary ex parte risk protection order. > [@Saint\_Cad](#): > > So again, can Karen say, “I don’t trust him. He looks angry.” and get a judge to issue the order? Karen could only ask a judge to do so if she is a law enforcement agent. Fla. Stat. 790.401 (1)(a): > “Petitioner” means a law enforcement officer or a law enforcement agency that petitions a court for a risk protection order under this section. ~Max ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 22, 2022, 4:50pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/52 "2022-06-22T16:50:20Z")
You’re mixing together two different laws, [741.30](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0741/Sections/0741.30.html) and [790.401](http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0790/Sections/0790.401.html). I was describing the standard of evidence for a protection order. This was set by statute 741.30. A subsequent court decision in Delopa v. Cohen set the standard that there must be “competent substantial evidence” in order for a judge to issue a protection order. A protection order does not require a law enforcement officer to initiate the process. A petition for a protective order can be made by anyone who is living in a household or is a family member who is either the victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 22, 2022, 7:05pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/53 "2022-06-22T19:05:45Z")
I assumed **Saint\_Cad** was referring to the _risk_ protection order from the red flag law, as distinguished between other kinds of protection orders. The _Delopa_ case you cited spoke of competent substantial evidence of _two or more actual incidents of violence_ which is wholly different criteria than that used by the red flag law. And the domestic violence statute requires the person petitioning the court to show that they have been the victim of violence, or personally face imminent danger. ~Max ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 23, 2022, 2:51pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/54 "2022-06-23T14:51:12Z")
> [@Max\_S](#): > > I assumed **Saint\_Cad** was referring to the _risk_ protection order from the red flag law, as distinguished between other kinds of protection orders. That seems unlikely. You had spoken of how a judge can order firearms to be taken after a protective order was in place. And Saint Cad asked what evidence was needed to issue that original protection order. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [June 23, 2022, 2:58pm UTC](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260/55 "2022-06-23T14:58:18Z")
> [@Max\_S](#): > > The Florida law cited in post #1 only allows the police to seize the guns after a protective order is in place To clarify, the law cited in post #1 is the red flag law at 790.401, titled “Risk protection orders”, and the protective order referred to in the above quote is the _risk_ protection order described by that same law. ~Max [Previous page](https://boards.straightdope.com/t/do-red-flag-laws-violate-the-5th-and-6th-amendments-us/966260.md?page=2)