As an attorney hoping to contribute to the public interest, I read the letter of Mr. Bo Gill, Chairman of the Bedford County Republican Party, to Representative Pat Marsh which you …
As an attorney hoping to contribute to the public interest, I read the letter of Mr. Bo Gill, Chairman of the Bedford County Republican Party, to Representative Pat Marsh which you published in your paper May 16, 2023, repeating his contention “Red Flag Laws” are not an “appropriate solution” to gun violence because they are “prone to abuse” and pose “potential infringements on our constitutional rights” whereas “allocating resources to mental health support, early intervention programs and improved access to quality mental healthcare” promote public safety and prevent violence better. He urges Mr. Marsh to “reject any red-flag legislation that may encroach upon our rights.”
But an ordinary “Red Flag Law” is no such unlawful encroachment because my previous letter (Times-Gazette, May 16, 2023, page 3A) showed it is constitutional; this letter shows it involves adaptation of existing, even long-standing, Tennessee Rules of Civil Procedure (Rules 64 and 65.03.) Under these Rules properly adapted, a judge, after reviewing statements sworn to in one or more affidavits, may (or may not) issue a writ of attachment to seize firearm(s) under a restraining order instructing the defendant(s) to appear at a later date to show cause why such seizure was improper. How many pre-judgment writs of attachment have ever been issued for property (a firearm is property) since Tennessee became a State in 1796? Thousands.
The complaint (the set of allegations which is the basis for the restraining order) would set forth how the situation qualifies under the detailed definitions of “mental illness” “substantial emotional disturbance” “developmental disability” and “intellectual disability” contained in Section 33-1-101, T. C. A. (except “serious emotional disturbance” must be amended to include an adult as well as a child.) A local District Attorney or, perhaps, members of the defendant’s own family (or those most likely concerned by the threat of imminent harm posed by the situation) would file it with the court.
This is done in most cases without defendant’s knowledge. Why?
It is the initial detection of a mental illness, substantial emotional disturbance or developmental or intellectual disability that involves the most danger to everyone because that detection is often the result of elaborate denial or concealment and because, when revealed or disclosed finally, the discovered mentality is often accompanied by a whole range of raw emotions, such as shock, surprise, shame, guilt, fear and embarrassment, or the deeper sequestration and concealment of the firearms subject to that discovery.
But Representative Lamberth of Portland, Republican Majority Leader, says to the media that, where firearms are involved, he is adamantly opposed to any ex parte procedure (the procedure I have just described before a judge which happens without defendants’ knowledge.)
Lamberth’s stance seems contrary to the “unwavering support for mental health initiatives” which Mr. Gill in his letter praises Mr. Marsh has in pursuing remedies for gun violence. For if Mr. Lamberth truly supported these mental health initiatives unwaveringly, he could see how such a useful tool the ex parte procedure of an ordinary “Red Flag Law” is in dealing with an exploding mental health crisis in the real world.
Besides, under every version of a “Red Flag Law,” defendant does get a chance to appear and to contest the seizure of his firearm at the very next hearing. Further, the criminal penalties which Tennessee Code Annotated already provides (Part 9 of Chapter 3 of Title 33) for aggressive plaintiffs abusing the rights of “mental health service recipients” (the defendant here) can easily apply to all I have just described here. (And be made to by the Legislature if it has the will to do so.)
Where and how are there any violations of an American’s or a Tennessean’s rights in what I have just written? Thanks for reading.
William Prentice Cooper
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Red flag laws are a controversial topic that involves balancing public safety concerns with individual rights, particularly the Second Amendment of the United States Constitution and Article I, Section 26 of the Tennessee Constitution. While the argument against red flag laws varies among individuals, I can provide you with a sample argument against them using these constitutional provisions:
Second Amendment of the United States Constitution:
The Second Amendment states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This amendment is often interpreted as protecting an individual's right to possess firearms for self-defense and the defense of their property. Red flag laws, which allow for the temporary confiscation of firearms based on perceived risk, can be seen as infringing upon this fundamental right.
a. Overreach and Due Process: Red flag laws can potentially infringe upon an individual's due process rights, as they allow the confiscation of firearms based on subjective judgments without the presumption of innocence. This undermines the principle of "innocent until proven guilty" and can lead to potential abuses or false accusations against law-abiding citizens.
b. Lack of Clear Criteria: Red flag laws often lack clear and objective criteria for determining when an individual poses a credible risk to themselves or others. This vagueness can lead to the potential for abuse, as decisions about confiscation can be made based on the subjective interpretation of law enforcement or judges. Without clear standards, there is a risk of arbitrary enforcement, which undermines the principles of fairness and equality before the law.
c. Potential for Abuse: Red flag laws can open the door to potential misuse by individuals with malicious intent. It is possible for someone to file a false report or abuse the system to target someone they have personal grievances against. Such abuse not only violates the rights of the accused but also diverts resources and attention away from genuine threats to public safety.
Article I, Section 26 of the Tennessee Constitution:
Article I, Section 26 of the Tennessee Constitution affirms, "That the citizens of this state have a right to keep and bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." This provision recognizes the right of citizens to possess firearms while allowing for reasonable regulations to prevent crime. However, red flag laws may raise concerns about the balance between individual rights and government authority.
a. Legislative Authority: While the Tennessee Constitution grants the legislature the power to regulate the wearing of arms, red flag laws potentially exceed the intended scope of this authority. They allow for the temporary seizure of firearms based on perceived risk, which goes beyond regulating the "wearing" of arms and may infringe upon the broader right to "keep and bear" arms.
b. Burden of Proof: Red flag laws can shift the burden of proof onto the gun owner, requiring them to prove their innocence and justify their possession of firearms. This reversal of the burden of proof undermines the principles of justice and the presumption of innocence, potentially resulting in unjust confiscation and impeding the exercise of constitutionally protected rights.
c. Alternative Solutions: Instead of implementing red flag laws, emphasis could be placed on bolstering mental health services, improving law enforcement training, and enhancing background check systems. These alternatives could address the underlying issues without infringing upon the rights of law-abiding citizens.
Chairman, Bedford County Republican Party
Monday, May 22 Report this