New SCOTUS ruling may stop Red Flag laws

Huge victory. And blows up the idea that some have that when a gun is involved due process goes out the window.

-Bryan

Probably a giant "maybe." Although overturning a 1st Circus finding normally gets a lot of attention.

Now the tricky part is in conflating "warrantless search" with the various RFL out there. Which are generally presumed to create a legitimate search & seize warrant (a position "we" are disinclined to agree with, as it eludes due process in nearly every case).

Now had LE executed an RFL against Caniglia the status of RFL would be much more in doubt.

In this case they promised him to not take his arms, and then broke that promise, no doubt at the behest of the wife.
Which may be more interesting, legally, for what that says about community property. Maybe. Perhaps.

Red flag laws are the real red herring in the gun control agenda. Not background checks, not assault weapons bans, not magazine capacity limits. Taking one's personal property without due process seems to appeal to politicians of all stripes. Recall that Marcio Rubio (R) authored a red flag bill. Recall that Pres. Trump seemed to endorse "take their guns first and then do the due process" until he was corrected by VP Pence. Red flag laws are the real and imminent danger to the Second Amendment, IMO, because I don't think the others have a hope in heck of becoming law, but these red flag laws both as a national model (including financial incentives to the states) and as state and local jurisdiction laws do, and especially as a "slippery slope" when they keep expanding the list of people that can institute a red flag judicial proceeding. If SCOTUS says a warrant is required, that does not preclude a red flag process where a court issues a warrant and a no-knock forced entry and seizure of one's firearms may be the result.

Since RFLs are the means of getting a warrant to seize I do not see how SCOTUS’ decision could affect those laws.

From Alito's concurrence in the ruling:

"4. This case also implicates another body of law that petitioner glossed over: the so-called “red flag” laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for
suicide or the infliction of harm on innocent persons. See, e.g., Cal. Penal Code Ann. §§18125–18148 (West Cum.Supp. 2021); Fla. Stat. §790.401(4) (Cum. Supp. 2021);Mass. Gen. Laws Ann., ch. 140, §131T (2021). They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues."

Like I said, huge victory. Particularly with the 9-0 outcome.

https://www.supremecourt.gov/opinions/20pdf/20-157_8mjp.pdf

-Bryan

Nope. But that issue could definitely be raised in a future case. They see it coming. (Note: I am not a lawyer.)

-Bryan

Aim1 said:

So this ruling does not affect red flag laws?

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That is correct. It does not. Red flag laws were not part of the case. Only warrantless searches were. RFLs authorize legal seizure pursuant to some level of post facto jurisprudence. Eventually RFLs will get their days in court, but it will yeats before one gets to SCOTUS, is one ever does.

1942bull said:

That is correct. It does not. Red flag laws were not part of the case. Only warrantless searches were. RFLs authorize legal seizure pursuant to some level of post facto jurisprudence. Eventually RFLs will get their days in court, but it will yeats before one gets to SCOTUS, is one ever does.

Click to expand...

But the ruling does encompass a philosophy that may carry over to a ruling on redflag laws ..... no?

Aim1 said:

So this ruling does not affect red flag laws?

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Not directly. It would have been a big plus for red flag laws if the ruling had gone the other way, but red flag laws at least pay lip service to due process by having a judge involved. The police in this case acted alone and that's what SCOTUS said was not allowed.

This ruling holds some promise for when red flag laws go before SCOTUS but it does not do anything definite about them.

Tommygunn said:

But the ruling does encompass a philosophy that may carry over to a ruling on redflag laws ..... no?

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Absolutely it does, and Thomas even remarked about RFLs. My guess is that, if an RFL case gets ruled by Circuit Court and the loser petitions SCOTUS, that there will be 4 justices ready to accept the case. However, that could take years to happen.

wiscoaster said:

Red flag laws are the real red herring in the gun control agenda.

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That's my concern as well. If the feds tie $ to an entitlement, you can bet there will be some little "requirements" they'll add too.
The complaint raised by some is they don't have funding to allow for dedicated manpower.
Training, equipment, surveillance, etc...They're already spending $ on everything they love.
I wonder what the Red Flag Force unit patch will be? If they fund it, They Will Come!

This is from Alito's pen (emphasis added)

"4. This case also implicates another body of law that petitioner glossed over: the so-called “red flag” laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for
suicide or the infliction of harm on innocent persons. See, e.g., Cal. Penal Code Ann. §§18125–18148 (West Cum.Supp. 2021); Fla. Stat. §790.401(4) (Cum. Supp. 2021);Mass. Gen. Laws Ann., ch. 140, §131T (2021). They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues."

Click to expand...

Which appears to be the part that the press, both popular and specific has clean missed for clickbait headlines.
Sadly, what we are required to accept as "journalism" today is focused on "view counts" not cogent stories.

One way to read what Alito wrote is that he finds the 4th Amendment issues in RFL offensive but no case has reached the SC for him to opine upon.

This case does set a considerable precedent for limiting the power of LE to decide "what's good for us" and act accordingly.

As others have noted, this does not address red flag laws, and is actually a 4th amendment issue. This addressed only the use of the "community caretaker" role to enter and seize property. This may in fact lead agencies to obtain a warrant when they are tasked to carryout a court order under a red flag law.

From the decision, page 3:

This case also implicates another body of law that petitioner glossed over: the so-called “red flag” laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons... They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues.

Red flag laws should be declared unconstitutional. They violate the 2nd, 4th, and 6th amendments. Whether they actually get to the Supreme Court is anyone's guess.

This appears to be a strictly 4th amendment case and question that just coincidentally involved a gun as the personal property taken as the result of a warrantless entry and search of the residence.

Also, not all 'red flag" laws (GVRO - Gun Violence Restraining Order here in CA) are written quite the same. A FL red flag law was challenged at the appeals court level, and passed muster for being constitutional. A bit or irony is that it was challenged by a deputy sheriff who was subject to one.

Dry blog version: https://sites.law.duke.edu/secondth...ed-flag-law-against-constitutional-challenge/

News version: https://www.newsweek.com/florida-red-flag-law-gun-control-constitution-1461672

Watched TGC News on it, never would've thought I'd see all Justices agree on this.