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« Florida goes constitutional carry! | Main | Not good news for SIG Sauer »

NY court strike down "red flag law."

Posted by David Hardy · 5 April 2023 03:06 PM

Opinion here.

"Without the requirement of any input from a medical or mental health expert, the Court is required to make a determination of whether the respondent "is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in... section 9.39 of the mental hygiene law" (CPLR § 6342[1]; CPLR § 6343[2]). Under Mental Hygiene Law § 9.39, a person's liberty rights cannot be curtailed unless a physician opines that the person is suffering from a condition "likely to result in serious harm." Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor's opinion must be obtained and such opinion must be consistent with the first doctor's opinion. Absent from New York's Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued. New York's Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen's Second Amendment Constitutional right to bear arms."

13 Comments | Leave a comment

Mark-1 | April 5, 2023 7:32 PM | Reply

NYS Gov & Co. slamming holes in walls. :-)

FW | April 6, 2023 8:35 AM | Reply

WOW! Exactly what I've been stating for a couple of years. Family, police, etc are NOT qualified to make such claims as red flag laws propose. Due process? NOT!

I also propose red flag laws for drivers: See a bad driver, call it in, cops come and stop the driver, impound car, suspend license. What's the difference? Autos kill tens of thousands every year and most folks think they are Dale Earnhart racers. No signal to turn or change lanes, take the car and licence. Stopping past a stop sign rather than before it. Take the car and licence.
/sarc

Flight-ER-Doc | April 7, 2023 9:29 AM | Reply

Glad some wiser heads prevailed, and it's good to know that lawywers cannot be made competent physicians by fiat.

Fyooz | April 7, 2023 10:09 AM | Reply

If a person is adjudicated---through due process---as a danger to self or others, don't take just one class of lethal instrument from the person.

Seize the person. The person constitutes the threat.

Anything less is a veiled bid to seize that class of instrument from people who are not threats.

Flight-ER-Doc replied to comment from Fyooz | April 7, 2023 12:35 PM | Reply

That is an excellent point, one that I had not considered before.

If they are a risk to others, they should be 5150'd (or whatever the local laws provide). But of course, that requires an actual professional analysis and agreement by two or three physicians who have their own licenses and malpractice premiums on the line - not an absolute immunity judge.

Fyooz | April 7, 2023 8:02 PM | Reply

Doc- you should visit Joe Huffman's place too, if you don't already.

Flight-ER-Doc replied to comment from Fyooz | April 8, 2023 11:17 AM | Reply

I do from time to time, mostly linked.

Jeff | April 8, 2023 5:27 PM | Reply

Does this decision have statewide effect?

Carl from Chicago | April 9, 2023 2:14 PM | Reply

Fyooz,
I’ve felt for years … maybe decades … that if someone has been adjudicated to be a danger to themselves or others that they are to dangerous to be at large in society. The idea that someone is “too dangerous” to be armed but that we can effectively prevent them from having arms, is ludicrous. “Too dangerous” means too dangerous. Period.

FW | April 10, 2023 9:44 AM | Reply

I recognize that folks don't like what I say on various topics on the net,like the Constitution REQUIRES that all laws of the Union be executed by the Militia. I also recognize that 99% of the folks out there have not read as extensively as I have on the Constitution.

After anyone reads all these books THEN they can argue with me. Here's the list of what I've read and studied. I own all these books.

We have never followed the Constitution. The courts are the greatest threat to our freedom. Judges are ignorant azoles who are flaunting powers they were never delegated.

A New Birth of Freedom
Charles L Black, Jr.

A View of the Constitution of the United States of America
William Rawle

America's Constitution
Akil Reed Amar

America's Great Depression
Murray N Rothbard

American History (1933)
Thomas M Marshall

Basic Economics
Thomas Sowell

Blackstone's Commentaries with notes of Reference to the Constitution of the Federal Government of the United States and the Commonwealth of Virginia:
Volumes 1 through 5
St George Tucker

Breach of Trust
Tom Coburn

Cato's Letters: Volumes 1 & 2
Trenchard Gordan

Colossus: The Price of America's Empire
Niall Ferguson

Commentaries on the Constitution of the United States: Volumes 1, 2, & 3
Joseph Story, LLD

Commentaries on the Laws of England: Volumes 1 through 4
William Blackstone

Congress and the Supreme Court
Raoul Berger

Constitutional Chaos
Andrew Napolitano

Constitutional Faith
Sanford Levinson

Constitutional History
Thomas M Cooley

Democracy in America: Volumes 1 & 2
Alexis De Tocqueville

Discourses Concerning Government
Algernon Sidney

Documentary History of the Ratification of the Constitution:
Volumes I – XXXVII, XXXVIII-XLII coming
John P Kaminski et al, Ed

Dreams from My Father
Barack H Obama

Economics Facts and Fallacies
Thomas Sowell

Elliot's Debates on the Federal Constitution: Volumes 1 through 5
Jonathan Elliot

Empire
Niall Ferguson

Executive Privilege: A Constitutional Myth
Raoul Berger

Exiled: The Story of John Lathrop
Helene Holt

Fletcher of Saltoun: Andrew Fletcher
David Daiches, Ed.

Franklin: The Essential Founding Father
James Srodes

Freedom Betrayed
Herbert Hoover

From my Cold Dead Fingers
Richard I Mack

George Washington: American Statesman Volumes I & II
Henry Cabot Lodge

Go Directly to Jail
Gene Healy

Good to be King
Michael Badnarik

Government by Judiciary
Raoul Berger

Gun Control and the Constitution Volumes 1, 2, 3
Robert Cottrell et al.

Guns, Crime, and Freedom
Wayne LaPierre

Hamilton's Curse
Thomas DiLorenzo

Illiberal Education
Dinesh D'Souza

Impeachment: The Constitutional Problems
Raoul Berger

In Defense of Freedom and Related Essays
Frank Meyer

In Defense of the Constitution
George W Carey

In the Hands of Providence
Alice Rains Trulock

In the President's Secret Service
Ronald Kessler

Inventing Freedom
Daniel Hannan

It is a Constitution We are Expounding
Am. Const. Soc.

Lincoln Unmasked
Thomas DiLorenzo

Men in Black
Mark Levin

Moral Man and Immoral Society
Reinhold Niebuhr

On Reading the Constitution
Laurence H Tribe

Partners in Power
Roger Morris

Point Blank
Gary Kleck

Recapturing the Spirit: Essay on the Bill of Rights at 200
Eric Nesse

Tainted Truth: The Manipulation of Fact in America
Cynthia Crosse

Testifying in Court
Stanley Brodsky

That Every Man be Armed
Stephen P Halbrook

The 14th Amendment and the Bill of Rights
Raoul Berger

The Agenda
Bob Woodward

The Audacity of Hope
Barack H Obama

The Bell Curve
Richard J. Herrnstein and Charles Murray

The Bill of Rights
Akil Reed Amar

The Bill of Rights and the States
Patrick Conley and John Kaminski

The Christian Life and Character of the Civil Institutions of the United States
B F Morris

The Conscience of a Libertarian
Wayne Allen Root

The Constitution in Exile
Andrew Napolitano

The Constitution of the United States: A Critical Discussion of its Genesis, Development and Interpretation
John Randolph Tucker

The Constitutional Principles of Constitution Law in the United States of America
Thomas M. Cooley

The Cult of the Presidency
Gene Healy

The Debate on the Constitution: Federalist and Antifederalist Speeches
Bernard Bailyn, ed.

The Disuniting of America
Arthur N Schlesinger Jr

The End of America
Naomi Wolff

The End of Racism
Dinesh D'Souza

The Fiefdom Syndrome
Robert Herrold

The Great Rights of Mankind
Bernard Schwartz

The Growth of the Constitution
William Meigs

The Hinge Factor
Erik Durschmied

The Invisible Constitution
Laurence H Tribe

The Irrational Atheist
Vox Day

The Liberty Amendments
Mark Levin

The Life of General Stonewall Jackson
R L Dabney, DD

The Myth of Homeland Security
Marcus Ranum

The Oxford Companion to the Supreme Court of the United States
Kent Hall, Ed.

The Passing of Armies
Joshua Chamberlain

The Politically Incorrect Guide to the Constitution
Kevin R C Gutzman

The Qur'an


The Real Lincoln
Thomas DiLorenzo

The Revolution
Ron Paul

The Road to Serfdom
F A Hayek

The Roosevelt Myth
John T Flynn

The Story of Liberty
Charles C Coffin

The Supreme Court and the Constitution
Stanley Kutler

The Thomas Sowell Reader
Thomas Sowell

The Triumph of Nationalism
William P Murphy

The Tyranny of Good Intentions
Pail Craig Roberts and Lawrence M Stratton

The Vision of the Anointed
Thomas Sowell

The Writings of Thomas Jefferson: 15 Volumes
Thomas Jefferson

Three Felonies a Day
Harvey Silvergate

Two Treatises of Government
John Locke

Wealth of Nations
Adam Smith

What's so Great About America
Dinesh D'Souza

Who Killed the Constitution?
Thomas E. Woods and Kevin R. C. Gutzman

Who Killed the Constitution?
William Eaton

Why We Want to Kill You
Walid Shoebat

When you finish them all maybe, just maybe, you will have enough info to contradict what I profess.

Marcus Poulin | April 10, 2023 12:09 PM | Reply

Totally Agreed FW!

Hank Archer | April 12, 2023 3:17 PM | Reply

Carl from Chicago & Fyooz,
Along similar lines, regarding felons being banned from firearms, I’ve felt for many years that if someone in prison is considered too dangerous to have access to firearms then they should not be allowed parole. The idea that someone is “too dangerous” to be armed but that we can effectively prevent them from having arms, is ludicrous. “Too dangerous” means too dangerous. Period.

wrangler5 | April 13, 2023 2:40 PM | Reply

There might be "public safety" logic behind the original prohibition of felons ever possessing arms, when most felonies involved acts malum in se - typically violence or theft, that pretty much all societies have recognized as wrong and dangerous.

But today you can go to jail for failing to file government paperwork on time, or saying something different from what the FBI editorial team decided to write down in their "official" report of what you said in an earlier interview. Don't see a lot of additional public safety coming from disarming people like that.

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