Veto Request for HB 1302, the so-called "Extreme Risk Protection Orders", AKA "Red Flag" bill
Dear Mr. Shank:
This letter is submitted on behalf of Maryland Shall Issue, its officers and Board and all its members, to request that Governor Hogan veto HB-1302, as enacted by the General Assembly on April 9, 2018.
As you may know, Maryland Shall Issue is an all-volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners’ rights in Maryland. The undersigned President of Maryland Shall Issue is an attorney and an active member of the Bar of the District of Columbia, having recently retired from the United States Department of Justice, after 33 years of practicing before the federal Courts of Appeals and the Supreme Court of the United States. For the reasons set forth below, HB 1302 is patently unconstitutional and grossly unfair. Appropriately, nearly every Republican in the Senate (save one) voted against the bill on the floor and in committee. On the House side, every Republican save four, voted against final passage of the bill. We respectfully ask that you veto this bill. The bill is a grossly illegal, partisan attack on gun ownership in Maryland and richly deserves to be vetoed.
As enacted, HB 1302 still makes gun owners a unique class in the law, e.g., a person who can be proceeded against and whose property can be seized simply because of his or her status as a gun owner.
Specifically, new Section 5-602 of the Public Safety Article in the bill provides:
(A) (1) A PETITION FOR AN EXTREME RISK PROTECTIVE ORDER SHALL:
* * *
(II) INCLUDE ANY INFORMATION KNOWN TO THE PETITIONER THAT THE RESPONDENT POSES AN IMMEDIATE AND PRESENT DANGER OF CAUSING PERSONAL INJURY TO THE RESPONDENT, THE PETITIONER, OR ANOTHER BY POSSESSING A FIREARM;
Similarly, under new Section 5-603, a court may issue such an interim and a temporary order only upon finding that “THERE ARE REASONABLE GROUNDS TO BELIEVE THAT THE RESPONDENT POSES AN IMMEDIATE AND PRESENT DANGER OF CAUSING PERSONAL INJURY TO THE RESPONDENT, THE PETITIONER, OR ANOTHER BY POSSESSING A FIREARM.” Under new section 5-605, a final order, good for a year (or a 1.5 years if extended), may be entered “IF THE JUDGE FINDS BY CLEAR AND CONVINCING EVIDENCE THAT THE RESPONDENT POSES A DANGER OF CAUSING PERSONAL INJURY TO THE RESPONDENT, THE PETITIONER, OR ANOTHER BY POSSESSING A FIREARM.”
Plainly, a person who is dangerous or who “POSES AN IMMEDIATE AND PRESENT DANGER” but who does NOT possess guns is NOT covered by this bill. So, under this bill, gun owners are the new “suspect class” in the law, except that they are a targeted class rather than a class protected under the 14th Amendment. We know of no other circumstance in which the exercise of a constitutional right (the Second Amendment right of the law-abiding citizen to own a firearm) serves as a basis for singling out that class of persons for special, oppressive treatment. Because firearm ownership by law-abiding citizens is a fundamental right under the Supreme Court's decisions in Dist. Of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the state bears a special burden to justify any classification that singles out gun owners for special treatment. Under Heller, “rational basis” review is not permitted.
The bill also fails basic principles under the Equal Protection Clause of the 14th Amendment. The bill identifies as a class persons who may “POSE AN IMMEDIATE AND PRESENT DANGER” to himself or others. Any such person is a legitimate concern. Yet, this bill singles out for seizure of personal property and threat of criminal sanctions only law-abiding gun owners. The bill leaves unaddressed all other persons who may pose such dangers, including persons who may be on the verge of suicide or violent crime. Under this bill, it simply does not matter how imminent or severe the danger and no matter how deadly the other types of potential weapons that these other persons may possess or construct. As the Supreme Court has stated, “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). That the bill authorizes seizures of property protected by the Bill of Rights makes it even worse.
Instead, the General Assembly has created the truly terrifying spectre of heavily armed SWAT teams showing up, without warning or notice, on the doorsteps of gun owners with ex parte seizure orders in hand. The potential for tragedy is obvious. As detailed below, you can be certain that this legislation will be abused by persons with animus toward a particular gun owner or toward gun owners in general. Gun owners will now have to consider whether they should go underground and be silent for fear of being subjected to this harassment. Vigorous debate is a fundamental First Amendment right. The bill is thus more than an attack on the Second Amendment. It is an attack on the Equal Protection and the exercise of First Amendment rights as well.
It gets worse. Under the bill, a judge may issue (1) an ex parte interim seizure order, (2) a temporary seizure order, and (3) seven days later (and even later if the time is extended), a final seizure order. Yet, under this bill, the respondent is not entitled to present any evidence or have that evidence considered until the final seizure order is heard. Specifically, the interim seizure order is completely ex parte and the provision for a temporary order states:
(2) IN DETERMINING WHETHER TO ENTER A TEMPORARY EXTREME RISK PROTECTIVE ORDER UNDER THIS SECTION, THE JUDGE SHALL CONSIDER:
(I) ALL RELEVANT EVIDENCE PRESENTED BY THE PETITIONER; AND (II) THE AMOUNT OF TIME THAT HAS ELAPSED SINCE ANY OF THE EVENTS DESCRIBED IN THE PETITION.
Only the petitioner’s evidence is considered. This limitation on the evidence is egregious, as a respondent served with an interim order under this bill gets notice of a temporary order hearing and may appear at the temporary order hearing. If the gun owner appears, he or she should be entitled to present evidence and have that evidence considered. Yet, as this language is written, the respondent is not entitled to present evidence prior to the entry of the temporary order and, even if allowed to do so, the court is free to ignore it and consider only the petitioner’s evidence. That is a fundamental denial of due process. So add the Due Process Clause of the 14th Amendment to the list of constitutional provisions this bill violates.
There are a host of other problems with the bill which are chilling in their implications. First, it allows a broad class of persons to file a petition and thus empowers persons who may possess animus against the respondent, to inflict a legal nightmare upon the respondent. Indeed, while ostensibly removing the right of “any interested person” to petition for an order (present in the original bill that passed the House), the bill allows the same result because any person may request law enforcement to seek such an order and law enforcement is expressly permitted to serve as petitioner. The bill, egregiously, also gives any petitioner complete legal immunity from both civil and criminal liability from any claim associated with bringing the petition as long as the petitioner asserts that the petition was filed in subjective “good faith.” Gun owners will thus become targets under this bill based on nothing more than the petitioner’s aversion to guns as the petitioner need only allege, in good faith, that they are afraid of guns and gun owners. A person wrongly subjected to this process and who is guilty of no wrongdoing has no legal remedy.
Gun owners are also hamstrung in defending themselves. The bill requires only “notice” to the respondent, yet nothing in the “notice” requirement mandates that the respondent receive an actual copy of the petition and all supporting evidence. Nothing in this bill ensures that the respondents have the right to cross-examine the petitioner or enjoy compulsory process. And, as noted, the bill does not even obligate the judge to consider the respondent’s evidence until the final hearing, long after his constitutionally protected personal property has been seized by law enforcement. There is also no standard by which a lay judge must assess the issue of whether the respondent poses an “immediate danger” prior to seizing a person’s property. District judges are not mental health professionals. Such judges are competent at assessing “probable cause” for crimes, but they have no expertise in the field of mental health or at predicting future crimes. The risk of wrongful deprivation is apparent. These are all basic violations of due process.
Finally, this bill is wholly unnecessary. Maryland already has, under Section 10 of the Health General Article, MD Code, Health - General, § 10-622, et seq., an established procedure for an emergency mental health evaluation of an individual who presents a danger to the life or safety of any individual. Gun owners are not singled out for special oppression. Any person may petition for such an emergency evaluation. Petitions filed by lay persons must first be evaluated for actual “probable cause” by a judge. (Section 10-623). If the judge finds probable cause, or if the petition is filed by an enumerated mental health professional, the person’s firearms are not taken under some ex parte writ. Rather, the person himself is taken for an evaluation to an emergency facility where the person can request a voluntary admission or a determination can be made as to whether that person meets the requirements for involuntary admission. (Section 10-624). If the person is involuntarily admitted, the person is entitled to a hearing within 10 days of initial confinement, at which time the evidence must show, by clear and convincing evidence that person has a mental disorder, needs in-patient care and presents a danger to himself or others. (Section 10-632). At that hearing, if the person is involuntarily committed the hearing officer may also determine whether the person “cannot safely possess a firearm based on credible evidence of dangerousness to others” and, if so, may order the person to surrender to law enforcement authorities any firearms in the individual's possession and refrain from possessing a firearm “unless the individual is granted relief from firearms disqualification in accordance with § 5-133.3 of the Public Safety Article.” Nothing less than these sorts of procedures is constitutional. See Zinermon v. Burch, 494 U.S. 113 (1990); Kansas v. Hendricks, 521 U.S. 346 (1997). There has been no showing that these procedures, established as recently as 2013, are inadequate.
The foregoing mental health procedures focus on the individual, and seek to treat the individual while at the same time depriving that individual of ready access to firearms. By contrast, the procedures set forth in HB 1302 only deprive that person of firearms. In short, the bill is both unconstitutional and poor public policy. For all these reasons, we respectfully request a veto.
Mark W. Pennak
President, Maryland Shall Issue, Inc.
1332 Cape St. Claire Rd #342
Annapolis, MD 21409