The world as it is in the movie Minority Report, where people are incapacitated by law enforcement because of a crime they might commit in the future, could soon be New Hampshire.
Red flag laws are becoming popular around the country as states reach for new ways to deter school shootings, in this case by “predicting” who might possibly be a shooter and confiscating their guns before any crime can be committed.
By definition, red flag laws allow action to be taken against a person before they have committed any crime, raising a variety of concerns.
As to the red flag bill proposed in New Hampshire, the list of due process concerns is plentiful.
The bill would apply to a broad array of circumstances unrelated to school shootings. An expansive variety of people can file for an extreme risk-protection order against a person, as compared to other states where only police can seek such an order. There is a troubling lack of an immediacy requirement for the issuance of other than a temporary confiscation order.
The rules of what kind of evidence is sufficient for an order are very lax, almost non-existent. And, the law may well infringe on the constitutional right to possess a gun in New Hampshire.
Put simply, those behind the legislation want to use the police to take people’s constitutionally allowable guns away, take their gun license away, and potentially subject them to a mental health evaluation because someone predicts they may use a gun to cause bodily injury, either to themselves or others.
Amongst these many concerns, I want to draw particular attention to one specific constitutional concern.
HB 687, the New Hampshire red flag law proposal, represents a striking avoidance of the requirements of the Fourth Amendment of the U.S. Constitution and Part I, Article 19, of the N.H. Constitution. HB 687 empowers the government to not only seize someone’s weapons but to search someone’s home in order to seize those weapons, all without meeting the requirements of those two provisions.
The two constitutional provisions have always provided critical protection from intrusion by the government by requiring that before it searches someone’s home, government obtain a search warrant supported by probable cause to believe that the property in question is evidence of a crime and will be found at the specified location at the time of the search.
Start with the easy point: To be evidence of a crime, a specific crime must have already been committed. But with red flag legislation, police are going in after weapons that have not been used in any specific crime, and there is no way to prove ahead of time that they will be.
There is also an exigent circumstances exception to the search warrant requirement, but it only applies if a delay would immediately and gravely endanger the lives of police officers or others. Even then, the police must still have probable cause to believe that evidence of a crime will be found in the place sought to be searched. Again, this requires that a crime already be committed.
HB 687 defies the search and seizure rules that our country has lived by for centuries. The requirements of HB 687 do not describe circumstances in which someone is committing or has committed a crime by the possession of their guns. At best, it anticipates a possible circumstance where a crime may be committed at some point in the future.
Two, HB 687 describes merely a circumstance where someone is known to have possessed a gun at some point in time at that location and is or has been possessed by someone as at risk of causing bodily injury. Neither the possession of the gun nor one’s status as “at risk” is a crime nor is the combination of the two a crime.
Third, HB 687 fails the exigent circumstances test because there is still no requirement of probable cause that a crime has been or is being committed, and there is no requirement of a showing that there is an “immediate and grave danger” to the police or others.
HB 687 raises the question of the extent to which we are willing to abandon some of the core constitutional protections that our criminal justice system is based upon in an effort to look into the future and predict criminal activity. The true test of principle in a rule-of-law society is whether the principle stays in effect even in the most challenging of circumstances.
Without question, no easy solution exists to the rise in shootings across our country. But, we need to be very aware of the constitutional protections we will forego by adopting the approach taken by HB 687, and recognize the very slippery slope that comes with predicting people’s future behavior.
We need to have a very serious public debate that recognizes the deep emotion that the recent spate of shootings raises and the fundamental constitutional principles at play. We need to do so without the fear-mongering, name-calling and half-truths the many sides of this discussion too often bring to the table. Our constitutional values are worthy of better than that.
(Albert Scherr is a professor of law at UNH School of Law. The opinions expressed here are solely his and not those of UNH.)