Surly Lawyers - How will this 9-0 SCOTUS decision affect “red flag” laws?

[Armybrat 40866]

https://americanmilitarynews.com/2021/05/supreme-court-rules-warrantless-home-gun-confiscation-is-unconstitutional-in-9-0-vote/

 

BREAKING NEWS

Supreme Court rules warrantless home gun confiscation is unconstitutional in 9-0 vote 

 

The Supreme Court. (Joe Sohm/Dreamstime/TNS)

MAY 17, 2021 LIZ GEORGE

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The Supreme Court ruled Monday that warrantless gun confiscation from Americans’ homes is unconstitutional, voting unanimously on the side of a Rhode Island man whose firearms were taken by law enforcement without a warrant after his wife expressed concerns that he might hurt himself.

According to Caniglia v Strom, a lower court had previously determined that police confiscating the guns without a warrant fell under the Fourth Amendment’s “community caretaking” exception, but a 9-0 vote from the nation’s top court struck down that ruling.

Edited May 18, 2021 by Armybrat

[TwiceHorn 31520]

Good question.

This case holds that warrantless seizure of weapons is unlawful by violating the 4th Amendment's requirement for a warrant.

I think most red flag laws have a procedure analogous to a search warrant by which officers go before a judge to prove that a person is imminently dangerous or some such and a warrant is issued for seizure of weapons.

So that offers some due process protection.

Quote

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

 

What red flag laws lack is a showing of probable cause that a crime has been committed.  It is short of a crime.  So it remains an open question whether a "warrant-like" procedure, short of a showing of probable cause of a crime, will satisfy the 4th Amendment.

[TornACL 7722]

Why is the conservative internet running around claiming scoreboard on this and crowing about the conservative justices? It was a unanimous decision. 

And imo, the correct one. I am no 2A pom pom waver, but I like limiting our police depts from doing warrantless seizure of property wherever possible. 

[Armybrat 40866]

The ones I read are shocked that Kagan was on board.

[B00M 6437]

Maybe I'm confused. The article says the officer lied that he was given consent to search, justice Alito said this ruling doesn't affect red flag laws, and they expect to hear red flag cases in the future. 

9-0 ruling in the modern SC tells me this has nothing to do with movement of the political football...

[Dahobbs 17642]

54 minutes ago, TwiceHorn said:

Good question.

This case holds that warrantless seizure of weapons is unlawful by violating the 4th Amendment's requirement for a warrant.

I think most red flag laws have a procedure analogous to a search warrant by which officers go before a judge to prove that a person is imminently dangerous or some such and a warrant is issued for seizure of weapons.

So that offers some due process protection.

What red flag laws lack is a showing of probable cause that a crime has been committed.  It is short of a crime.  So it remains an open question whether a "warrant-like" procedure, short of a showing of probable cause of a crime, will satisfy the 4th Amendment.

Probable cause of a crime, maybe not. But, just like involuntary commitment, they would require probable cause that a person is a danger to themselves or others. Those laws are clearly allowed under the Constitution. I don't see why red flag laws would be treated any differently.  

[TwiceHorn 31520]

21 minutes ago, Dahobbs said:

Probable cause of a crime, maybe not. But, just like involuntary commitment, they would require probable cause that a person is a danger to themselves or others. Those laws are clearly allowed under the Constitution. I don't see why red flag laws would be treated any differently.  

Yeah, I was thinking of that as an analogy, but was uncertain of the law on it.  Certainly a more invasive seizure.

[Brisketexan 105206]

46 minutes ago, TornACL said:

Why is the conservative internet running around claiming scoreboard on this and crowing about the conservative justices? It was a unanimous decision. 

And imo, the correct one. I am no 2A pom pom waver, but I like limiting our police depts from doing warrantless seizure of property wherever possible. 

This.

33 minutes ago, Armybrat said:

The ones I read are shocked that Kagan was on board.

Well, that's because those folks aren't particularly smart.  They live in a world of simplistic outcome-based reasoning.  Guns good, libs bad, therefore libs should be for everything that restricts/takes away guns.  That's not true, at all.

The problem with this case was the "warrantless" part -- no 4th amendment protections, no due process.  The test for any such law -- whether it be a red flag law to temporarily sequester firearms or a law to temporarily sequester a person who is an active danger to himself or others -- is going to be a due process test.  Cops come in and grab the guns because your wife says she's afraid?   Generally a no-go (if there's an immediate, exigent threat, some temporary action might still be allowed, depends on the facts).  Cops and wife present adjudicative facts to a judge, who after hearing and allowing the gun owner an opportunity to appear and contest (for a long-term order -- short term orders for a very limited time might be done ex parte), issues an order to sequester the guns, that almost certainly passes muster.

It's about the due process, not the guns.  The guns are just the mcguffin in this story.

Edited May 18, 2021 by Brisketexan

[Armybrat 40866]

To most of us who post on those forums, due process has always been a centerpiece of concern & discussion.

[Brisketexan 105206]

5 minutes ago, Armybrat said:

To most of us who post on those forums, due process has always been a centerpiece of concern & discussion.

Understood.  It just gets frustrating as hell when so much of our national conversation about such matters is idiotic noise.

We already let the government confiscate, literally, YOU, so long as due process is followed (that's how we have these big things called "prisons" that are full of formerly free people).  Ain't no piece of property -- guns, etc. -- that are worthy of more protection than people themselves, so the idea that no matter what, a certain kind of property can never be sequestered or confiscated, is insane.

[gmr548 16592]

The ones I read are shocked that Kagan was on board.

This says a lot more about the source than anything else.

[NeverMarryAStripper 21920]

What if the wife said he bought the guns with proceeds from selling drugs?

[WBT 20650]

30 minutes ago, NeverMarryAStripper said:

What if the wife said he bought the guns with proceeds from selling drugs?

If drugs are involved, the constitution doesn't apply.  Obviously.

[wildcat09 29365]

5 hours ago, gmr548 said:

This says a lot more about the source than anything else.

Yup. Thinking Kagan would go the other way on this is absurd.

[DaggerHorns 3085]

9 hours ago, TornACL said:

Why is the conservative internet running around claiming scoreboard on this and crowing about the conservative justices? It was a unanimous decision. 

And imo, the correct one. I am no 2A pom pom waver, but I like limiting our police depts from doing warrantless seizure of property wherever possible. 

Take the loss pussy!

[dcbc 14507]

8 hours ago, Brisketexan said:

The guns are just the mcguffin in this story.

Bears repeating.

[4th and 5 4915]

8 hours ago, Brisketexan said:

It just gets frustrating as hell when so much of our national conversation about such matters is idiotic noise.

 

 

This. Caniglia has nothing to do with red flag laws.

 

But we have had some big cases come down in the last week with Caniglia addressing "community caretaking" function in the context of residences; Edwards v. Vanoy holding that Ramos v. Louisiana (state criminal jury trials must be unanimous) does not apply retroactively; and finally, the Texas Supreme Court's holding in Ex parte RPGP, that expunction eligibility for misdemeanor charges is offense based, not arrest based, as all the courts of appeals have previously held, meaning if a person is arrested for misdemeanor A, B, and C, and A and B are dismissed, the defendant can have records relating to A and B expunged. The law used to be that if you were arrested for 100 charges, and you pled to 1, and 99 were dismissed, you were ineligible for an expunction of anything. 

 

I like the facts of Caniglia, we've all been there at one time or another.

During an argument with his wife, petitioner Edward Caniglia placed a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife instead left the home and spent the night at a hotel. The next morning, she was unable to reach her husband by phone, so she called the police to request a welfare check. The responding officers accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch. The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms. But once Caniglia left, the officers located and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to the officers. The First Circuit affirmed, extrapolating from the Court’s decision in Cady v. Dombrowski, 413 U. S. 433, a theory that the officers’ removal of Caniglia and his firearms from his home was justified by a “community caretaking exception” to the warrant requirement.

Held: Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. 413 U. S., at 441. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. Id., at 439, 440– 442. The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and “there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U. S. 1, 6. A recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere.

 

 

[bernorange 8363]

Cop messed up in not claiming the guns under civil asset forfeiture.  I'm sure he smelled marijuana or something on Mr. Canigilia.  Guns surely were being used as part of a drug deal. QED.  Govco confiscates whatever personal property they want.

[scottsins 1969]

 
This. Caniglia has nothing to do with red flag laws.
 
But we have had some big cases come down in the last week with Caniglia addressing "community caretaking" function in the context of residences; Edwards v. Vanoy holding that Ramos v. Louisiana (state criminal jury trials must be unanimous) does not apply retroactively; and finally, the Texas Supreme Court's holding in Ex parte RPGP, that expunction eligibility for misdemeanor charges is offense based, not arrest based, as all the courts of appeals have previously held, meaning if a person is arrested for misdemeanor A, B, and C, and A and B are dismissed, the defendant can have records relating to A and B expunged. The law used to be that if you were arrested for 100 charges, and you pled to 1, and 99 were dismissed, you were ineligible for an expunction of anything. 
 
I like the facts of Caniglia, we've all been there at one time or another.
During an argument with his wife, petitioner Edward Caniglia placed a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife instead left the home and spent the night at a hotel. The next morning, she was unable to reach her husband by phone, so she called the police to request a welfare check. The responding officers accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch. The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms. But once Caniglia left, the officers located and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to the officers. The First Circuit affirmed, extrapolating from the Court’s decision in Cady v. Dombrowski, 413 U. S. 433, a theory that the officers’ removal of Caniglia and his firearms from his home was justified by a “community caretaking exception” to the warrant requirement.
Held: Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. 413 U. S., at 441. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. Id., at 439, 440– 442. The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and “there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U. S. 1, 6. A recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere.
 
 

I can’t believe they finally got the expunction issue correct. I had one in appeal years ago and the entirety of the legal gymnastics that were done in order to reach the opposite result was mind-numbing to read.

There were just a multitude of totally ABSURD results.

I had a client arrested for a theft and a fraud misdemeanor. Each alleged on a different date, about a month apart.

One case was dismissed. The other given a deferred. Got an order of non disclosure for the probation case. Was stonewalled by DPS and the 3rd COA for the dismissed charge. Could not get it expunged because...

The two separate warrants were served together when she was pulled over for a traffic violation. Thus, one arrest...the deferred adj. was not eligible for expunction...so the dismissed case wasn’t either because “same arrest”.

Now I’m going to go dig up an old file and find a lawyer to refile another petition for expunction, since I would be conflicted at this juncture.

ETA: I can barely even read this new opinion because of raging at the similarity between this opinion and the fucking brief I filed years ago under the same facts.

[TwiceHorn 31520]

I don't like Edwards v. Vannoy.  While I get where it's coming from, I think, to hold that there are no criminal procedure decisions that can have retroactive effect seems  . . . . like not a cool thing.  I suppose that it is easy enough to blur the distinction between procedure and substance and declare something retroactive.

[Texas St. Armadillos 1381]

On 5/18/2021 at 8:24 AM, TwiceHorn said:

What red flag laws lack is a showing of probable cause that a crime has been committed.  It is short of a crime.  So it remains an open question whether a "warrant-like" procedure, short of a showing of probable cause of a crime, will satisfy the 4th Amendment.

Gonna need to get the Precogs involved now.

['stache 21830]

Law dog answer. Get a warrant?

[Gatorubet 30285]

Cop messed up in not claiming the guns under civil asset forfeiture.  I'm sure he smelled marijuana or something on Mr. Canigilia.  Guns surely were being used as part of a drug deal. QED.  Govco confiscates whatever personal property they want.

Freddie Prinze had a bit back in the day, “his Chicano buddy was arrested for having cash - said it was a conspiracy to but drugs....”

[4th and 5 4915]

1 hour ago, scottsins said:

The two separate warrants were served together when she was pulled over for a traffic violation. Thus, one arrest...the deferred adj. was not eligible for expunction...so the dismissed case wasn’t either because “same arrest”.

I've had Travis County judges grant these, based on the T.S.N. case, even demanded DPS attorneys appear to argue it, of course they still don't show up....I made a hell of an appellate record that day and DPS did not appeal. There's caselaw out there, with no record, much easier for DPS to restricted appeal. With a record properly made, they're fucked on the standard of review.

[scottsins 1969]

I've had Travis County judges grant these, based on the T.S.N. case, even demanded DPS attorneys appear to argue it, of course they still don't show up....I made a hell of an appellate record that day and DPS did not appeal. There's caselaw out there, with no record, much easier for DPS to restricted appeal. With a record properly made, they're fucked on the standard of review.

My case was pre-TSN. Also, my trial court ruled against me so I had to be the Appellant.