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« NRA vs. Cuomo: first round goes to NRA | Main | The shooting of Jemel Roberson »

To answer the previous question...

Posted by David Hardy · 18 November 2018 10:27 AM

Namely, if a person refuses to give up their firearms under a "red flag" law, could authorities enter their house and seize them... The Tenth Circuit just ruled in US v. Shrum, No. 17-3059. Defendant called 911 to report that his girlfriend, aged in her 30s, had suddenly died. (The autopsy found she'd ODed on meth). Police responded, thought the death unusual, held him for 11 hours outside the house, noticed that he had ammunition, determined that he was a convicted felon, and tipped off ATF which searched the house and found guns, ammo, and meth.

The 10th Circuit found there was a Fourth Amendment violation, going back to when police refused to let him enter his house for an extended period of time; that was a seizure. They had no probable cause to believe he'd committed a crime; at best they had a suspicion. There was no reason to believe he'd destroy evidence, since police then knew of no evidence. As the Court notes, "Quite frankly, this would have been a much more straightforward case both in the district court and here if the Government had conceded the obvious, that is, the unconstitutionality of the initial seizure of Defendant's home."

As I recall, years ago (in an Arizona case) the U.S. Supreme Court ruled there was no "murder scene" exception to the Fourth Amendment. I'd think there is no "red flag law" exception, either.

1 Comment | Leave a comment

Dave D. | November 19, 2018 7:22 AM | Reply

...Based on the fact that nobody knows your mental health as well as your psycho sister or coworker , red flag laws are an invitation to revenge. An NRA sticker on your bumper will be sufficient in the Prog villages to set off the system. Since due process is bypassed, the burden of proof transfers from the complainant to the guy answering the door. If ever there were a law designed to provide the spark, this is it.

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