Law-abiding gun owners are one step closer to challenging the legality of Extreme Risk Protection Orders (ERPOs), commonly referred to as &#8220;red flag laws.&#8221;
As <a href="https://www.dailywire.com/news/supreme-court-unanimously-agrees-police-illegally-seized-a-mans-firearms-in-violation-of-the-4th-amendment">The Daily Wire</a> previously reported, &#8220;The Supreme Court on Monday ruled unanimously that police illegally seized a Rhode Island man’s firearms in violation of his Fourth Amendment rights. The SCOTUS decision overturned a 1st Circuit Court ruling that said police officers in the case were well within their right to confiscate the man’s firearms.&#8221;
Police relied on the &#8220;community caretaking exception&#8221; to the Fourth Amendment, which typically prohibits police from partaking in illegal search and seizure. In the case, the plaintiff, Edward Caniglia, was believed to be suicidal. Police eventually convinced him to undergo psychiatric evaluation but he agreed under the condition that his firearms would not be seized. After he was taken to a nearby hospital, police entered his home and confiscated two of his firearms. The firearms were confiscated without a warrant because Caniglia was deemed a threat to himself and others, police said.
The Supreme Court ruled the “community caretaking exception,” which was established in the Cady v. Dombrowski case, did not apply to the Caniglia case. In the Cady case, &#8220;an officer took a gun out of an impounded car without a warrant. The Supreme Court ruled at the time that police can conduct such warrantless searches if they are performing ‘community caretaking functions’ in a ‘reasonable’ manner,” <a href="https://time.com/6048974/supreme-court-police-warrants-caniglia-strom/">TIME</a> reported.
According to the Supreme Court, the Cady case “is not an open-ended license to perform [the community caretaking functions] anywhere.&#8221; There are limits on when and where that exception can be applied.
But this case also opens the door for gun rights activists to challenge the legality of red flag laws. According to <a href="https://www.cnn.com/2021/04/21/us/red-flag-laws-explainer-trnd/index.html">CNN</a>, 19 states and the District of Columbia have red flag laws. These laws, which vary from state to state, allow a spouse, loved one, doctor, or law enforcement officer to petition the court to have a person&#8217;s firearms removed because he or she is considered a danger to themselves or others. The problem most Second Amendment supporters have with the legislation, however, is the lack of due process. In most jurisdictions, a judge can determine whether or not a person&#8217;s firearms should be confiscated without the person in question even knowing about the hearing.
As Justice Samuel Alito pointed out in his <a href="https://www.supremecourt.gov/opinions/20pdf/20-157_8mjp.pdf">concurring opinion</a>, the Caniglia case calls into question areas surrounding red flag laws, like whether or not they violate an American&#8217;s Fourth Amendment rights (emphasis added):
<blockquote>This case falls within one important category of cases that could be viewed as involving community caretaking: conducting a search or seizure for the purpose of preventing a person from committing suicide. Assuming that petitioner did not voluntarily consent to go with the officers for a psychological assessment,1 he was seized and thus subjected to a serious deprivation of liberty. But was this warrantless seizure “reasonable”? We have addressed the standards required by due process for involuntary commitment to a mental treatment facility but we have not addressed Fourth Amendment restrictions on seizures like the one that we must assume occurred here, i.e., a short-term seizure conducted for the purpose of ascertaining whether a person presents an imminent risk of suicide. Every State has laws allowing emergency seizures for psychiatric treatment, observation, or stabilization, but these laws vary in many respects, including the categories of persons who may request the emergency action, the reasons that can justify the action, the necessity of a judicial proceeding, and the nature of the proceeding. Mentioning these laws only in passing, petitioner asked us to render a decision that could call features of these laws into question. The Court appropriately refrains from doing so.
This case also implicates another body of law that petitioner glossed over: the so-called “red flag” laws that some States are now enacting. These laws enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons. They typically specify the standard that must be met and the procedures that must be followed before firearms may be seized. Provisions of red flag laws may be challenged under the Fourth Amendment, and those cases may come before us. Our decision today does not address those issues.</blockquote>
There are a few questions the Supreme Court will have to address when it comes to red flag laws, the biggest one &#8212; besides the Fourth Amendment concerns &#8212; being a lack of continuity between states. Who can petition a court varies from state to state, what due process is in place (if any), and how a person recovers their firearms (if ever).
There are also legal and financial repercussions when things go wrong. In 2019, a Florida man had his Second Amendment rights involuntarily <a href="https://townhall.com/tipsheet/bethbaumann/2019/08/19/red-flag-law-failure-guy-is-stripped-of-his-gunsbecause-of-another-mans-criminal-activity-n2551921">relinquished</a> because he had the same name as a criminal with a warrant out for his arrest. Police failed to correctly identify their suspect. As a result, the incorrectly identified man was forced to petition the court to retrieve his guns and bear the legal costs associated with a mistake that wasn&#8217;t his.
In addition to mentioning the other legal questions, the Supreme Court needs to determine whether someone who is wrongly accused, whether on purpose or by accident, has to incur the legal costs associated with their defense and/or their petition to retrieve their firearms.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.

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SCOTUS’ Decision On Illegal Search And Seizure Opens The Door For Gun Owners To Challenge Red Flag Laws