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The Emerging Second Amendment Civil-Criminal Distinction and Red Flag Laws

  • Date:
  • March 15th, 2023

By: Andrew Willinger

Extreme risk protection order laws, commonly known as “red flag” laws, are currently on the books in 19 states and the District of Columbia.  Generally speaking, these laws allow firearms to be removed temporarily from individuals whom a judge has determined present an imminent risk of harm to themselves or others.  The laws often specify a process that begins with a petition for an extreme-risk order which is then adjudicated in a civil proceeding—depending on the state, a family member or friend, law enforcement officer, or mental health professional might initiate the petition.  ERPOs are a relatively recent innovation; Connecticut was the first state to enact such a law in 1999, following a mass shooting in the state.  Even before Bruen, these laws faced criticism on both due process and Second Amendment grounds.  However, they were infrequently challenged in court, and none were struck down on constitutional grounds.

The Fifth Circuit’s recent decision in Rahimi, striking down the federal ban on gun possession by those subject to domestic violence restraining orders issued after notice and a civil hearing (which we covered here and here), bears some relevance to red flag laws because that federal provision is similarly based on a civil proceeding.  Judge James Ho’s concurrence in Rahimi suggested that any state attempt to disarm an individual based solely on a civil—rather than criminal—process presents serious constitutional concerns.  On March 2, the Fifth Circuit panel withdrew its original opinion and filed a revised opinion including a number of substantive changes to Judge Ho’s concurrence.  In his revised concurrence, Judge Ho again emphasizes that criminal law is the sole avenue to deal with threats of violence, in his view:

18 U.S.C. § 922(g)(8) disarms individuals based on civil protective orders—not criminal proceedings. As the court today explains, there is no analogous historical tradition sufficient to support § 922(g)(8) under Bruen.

Moreover, there are additional reasons why disarmament based on civil protective orders should give us pause. Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger.

Judge Ho’s revised concurrence is notable for several reasons, including that it appears to overlook the distinction between ex parte restraining orders (which do not require notice to the respondent and a hearing) and restraining orders issued after notice and a hearing.  Only the latter implicate the federal restriction in 18 U.S.C. 922(g)(8).  It’s also not entirely clear to me how Judge Ho’s twin concerns about disarming based on a civil proceeding and potential misuse of restraining orders—the concurrence cites law review and social science articles suggesting that some unspecified percentage of issued restraining orders may in fact be unwarranted—actually fit into the Bruen test or derive from American historical tradition.  The Rahimi concurrence frames the civil/criminal distinction as broadly consistent with history; but that’s difficult to accept at face value given the lack of a Founding-era tradition of disarming even convicted felons.  It seems instead that certain judges are interpreting Justice Thomas’ statement that the Second Amendment “is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” to mandate a free-standing inquiry in each case into whether the procedural protections are sufficient today (not whether they accord with historical tradition).  The reference to studies about the misuse of restraining orders, moreover, seems like exactly the type of interest balancing that Bruen rejected.  The majority in Bruen explained that “the government may not simply posit that the regulation promotes an important interest”; certainly, a plaintiff also may not rely on empirical studies purporting to show that the regulation does not advance an important interest.

This post, however, focuses on the civil-criminal distinction—which has potentially major consequences for red flag laws.  Since Bruen was decided last June, two New York state trial courts have considered challenges to the state’s red flag law, with differing results.  First, on December 22, 2022, a trial court judge in Monroe County issued a decision deeming New York’s red flag law unconstitutional under the Second Amendment.  While relying obliquely on Bruen, the Monroe County decision in G.W. v. C.N. was based primarily on due process concerns with the law rather than detailed historical analysis. 

The judge observed that New York’s mental health law permits an individual to be involuntarily committed for psychiatric care if that individual is alleged to “have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.”  The judge emphasized that, although the language “likelihood to result in serious harm” is used in both the red flag law and the mental health law, the red flag law lacks certain procedural protections available in the mental health context.  For example, the mental health law allows only a physician to refer an individual for commitment and requires periodic reassessment by medical professionals, while a red flag proceeding can be initiated by a lay person and is not subject to expert review.  The judge also observed that New York has long provided extra procedural protections before a patient is involuntarily subjected to medical treatment and before a sex offender is subject to civil management or confinement.  Ultimately, the judge found that “a respondent subject to a CPLR §63-a proceeding [should] be afforded the same constitutional protections as the aforementioned cases, when all are based upon allegations of mental illness.” 

On March 1, in New York Investigator John Hines v. John Doe, a trial court judge in Albany County similarly dissolved a CPLR §63-a extreme risk protection order.  However, the decision suggests that the red flag law itself is constitutional in many applications.  In Hines, a man suffering from serious medical problems attempted suicide, his wife contacted law enforcement, and law enforcement initiated an ERPO proceeding to temporarily remove the man’s guns from his home.  The judge first concluded that suicidal ideation itself is not a mental illness, and therefore the use of New York’s red flag law in this instance could not be justified under Heller’s presumptively-lawful carveout of laws restricting gun possession by the mentally ill.  The judge next consulted the historical record to determine whether Doe could “be disarmed solely because he attempted suicide.”  Relying in part on Washington v. Glucksberg, the opinion found that New York and other states adopted the common rule that suicide constituted “self-murder” and was a felony—in New York’s case, the legislature officially maintained until 1965 that suicide was a “grave public wrong.”  Observing that the common law also authorized the use of private force to prevent another individual from committing suicide, the judge reasoned that “the State may seize the weapons of a person about to commit suicide without violating the Second Amendment.” 

The judge in Hines ultimately held, however, that CPLR § 63-a only permits deprivation of arms so long as the clear and convincing evidence continues to demonstrate a risk of suicidal behavior.  After a detailed examination of the factual record, the judge found that Doe no longer presented a danger to himself under this standard and, accordingly, dissolved the order removing his firearms. 

First, it’s important to note that a view of the Second Amendment that completely eliminates disarmament based solely on civil process would have profound consequences.  This view would almost certainly impact firearms prohibitions based on past or current drug use, as the recent district court decision in Harrison indicates (we covered that decision here, and it similarly expresses the Second Amendment right can be deprived “only after an individualized, adversarial proceeding that complies with the requirements of due process”—presumably a criminal proceeding).  Taken to its logical conclusion, this view would also cast substantial doubt on firearms restrictions based on mental illness.  18 U.S.C. § 922(g)(4) criminalizes possession by those “adjudicated as a mental defective or . . . committed to a mental institution.”  This prohibition is based on a civil, not criminal, proceeding, very similar in nature to the proceeding required to issue a disqualifying restraining order under 922(g)(8)—as the First Circuit has observed, a state-law involuntary commitment proceeding finding mental illness by clear and convincing evidence “will create a presumptively valid section 922 ban.”  Judges may invoke Heller’s safe harbor (which explicitly endorses prohibitions on gun possession by the mentally ill), but that seems a largely unprincipled basis on which to uphold mental-illness restrictions if the true belief is that no one should be disarmed absent criminal process and proof beyond a reasonable doubt, or detention in advance of a criminal proceeding.  It is more likely, I think, that this view will create confusion as courts attempt to determine exactly which procedural protections are available in different civil proceedings (which may vary significantly by state).

Second, the opinion in Hines is notable for its historical analysis suggesting that New York’s red flag law is constitutional in certain applications.  The decision suggests that application of the law to those suffering from mental illness is supported by Heller’s list of presumptively-lawful regulations, and that application to those evincing a clear danger of committing suicide is supported by historical tradition dating back to English common law.  If, as the Court found in Glucksberg, there is a robust American tradition of criminalizing, punishing, and disapproving of suicide, then it is difficult to quibble with the conclusion in Hines that those who attempt suicide may be disarmed consistent with history—until there is no longer a clear and present danger of suicide.  The outstanding question stemming from Hines is whether it is consistent with history to apply the red flag law to those who make threats against others, even though they are not mentally ill.

Third, G.W.’s focus on whether the state’s red flag law employs identical procedural protections to other civil proceedings that deprive individuals of constitutional rights is understandable, especially given Bruen’s use of “second class” rhetoric.  However, it’s not clear to me how this analysis is relevant in post-Bruen Second Amendment cases.  Rather, the legal test now seems to reduce to one question: is the state red flag law consistent with historical tradition or not?  G.W. looks to other civil deprivation proceedings and observes that “New York has a long history of providing a base level of procedural due process to a citizen when the state undertakes to deprive that citizen of a fundamental right.”  But does that history extend back to the Founding Era, or even to 1868?  Perhaps not, given that the early American process for involuntary commitment to asylums often did not mandate serious protections for the rights of those committed against their will.  As late as 1959, the Iowa Supreme Court held in Prochaska v. Brinegar (251 Iowa 834), that civil commitment was not a “loss of liberty . . . as is within the meaning of the constitutional provision that ‘no person shall be deprived of life, liberty or property without due process of law.’”

G.W. also illustrates how Bruen may be creating doctrinal confusion among lower courts.  While the historical-analogical test now governs Second Amendment challenges to laws implicating the right to keep and bear arms, a procedural due process challenge to a red flag law would, as Joseph Blocher and Jake Charles have explained, be examined under due process case law regarding state emergency deprivations.  That’s not a historical test.  Bruen rules out interest balancing in the Second Amendment context but does not say anything about challenges not based on the Second Amendment.  If the legal test for due process challenges continues to credit the strength of the government’s rationale for the deprivation at issue, then it seems logical that certain government objectives will be more compelling than others, and thus authorize deprivation with lower levels of procedural protection.