Tuesday, April 3, 2018

Recall Illinois House Bill 5849 Firearm Revocation Procedure


Illinois House Bill 5849 should be recalled until it can be reviewed and shown that it does not violate the U.S. Constitution or deprive us of our second and fourth amendment rights.

Today, with the threat of mass shootings threatening our schools and other public places, a number of states have passed so-called "red flag laws" that allow the seizure of gun based upon suspicion that acts of violence are imminent.   The Washington Post reported that "California, Washington, Oregon, Indiana and Connecticut have statutes that can be used to temporarily take guns away from people a judge deems a threat to themselves or others."   These laws allow family members or law enforcement officers to seek a court order to seize a gun from an individual who is deemed to be an imminent danger to the community.   Connecticut has had a red flag law on the book since the late 1990's, and in one study by Duke University, it was found that 762 warrants were obtained during a 14 year period.  Based on statistics at the time, the study estimated that this prevented on average, one gun suicide for every 20 seizures. 

On April 2nd, Illinois took the first step to enacting it's own "red flag law" when Rep. David McSweeney (R-52) filed House Bill 5849 entitled the Gun Violence Protection Act.   The bill provides that a circuit court judge may issue a search warrant and seize a firearm in possession of a person who is believed to pose a "clear and present danger" to himself or others.  The bill also allows for a law enforcement agent to perform a search and seizure without a warrant so long as the agent files a written statement under oath within 14 days affirming a "clear and present danger" existed.   The bill goes much further than other laws, because the seizure is not temporary, but is a permanent revocation.   According to Rep. McSweeney the law is needed "to give law enforcement agencies the tools they need to help prevent potentially dangerous individuals from the unnecessary risk of harm to themselves or others with a firearm".  According to McSweeney, this can be done "while maintaining a respect for an individual’s Second Amendment rights".  Current Illinois law already allows for search and seizure warrants to be obtained, but his new law will allow for warrant-less searches if a "clear and present danger" is suspected.

This new law would bring Illinois front and center among the states that enacted these so-called "red flag laws", but are they legal?  Many people argue that it denies a person both their fourth amendment right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures", as well as their second amendment right to bear arms.  Today, a police officer can stop and search a person if he has reasonable cause to believe the man is armed and dangerous. This is often called a "Terry stop" after the landmark Terry v. Ohio Case in 1968 that applied the 4th amendment to "stop and frisk" procedures.  The ruling confirmed that police whenever practical must secure a warrant to make a search and seizure, but ruled that a police officer may make an warrant-less search and seizure if the the safety of others is believed to be in danger.  This may seem like a reasonable compromise for public safety, but should this apply to our own homes?  For many the fourth amendment is supposed to enforce the notion that "each man's home is his castle". Does "reasonable suspicion" extend to the seizure of guns from within our own castle?  To a certain extent this was tested in 1972 in the case of Adams v. Williams.  In this case, a police officer acting on a tip supplied by an informant just moments earlier asked a respondent to open his car door.  The Respondent lowered the window, and when the officer reached into the car, he found a loaded handgun that was not visible from the outside.   A further search found heroin as well as other contraband in the car.   A lower court ruled that the the search and seizure was legal, but an appeals court reversed the decision and upheld the fourth amendment.  At best, these "red flag laws" have yet to be settled in the the courts, at worse they infringe upon our fourth amendment rights.

Without protection from search and seizures, there is little to stop the government from trampling on our fundamental privacy rights and our right to bear arms. None of us can predict how this will play out in the courts, but it is sure to become one of the hottest battles in the fight to protect our fundamental rights as United States Citizens.  None of us want to become a victim of gun violence or even witness the evil that it entails, but not at the cost of losing our liberties.   For this reason, I call on Rep. David McSweeney and the General Assembly to recall the bill until it can be shown that it does not violate the U.S. Constitution or deprive us of our second and fourth amendment rights.

References

http://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&DocNum=5849&GAID=14&SessionID=91&LegID=112226#actions

https://www.law.cornell.edu/supremecourt/text/392/1

https://supreme.justia.com/cases/federal/us/407/143/

http://www.jslawgroup.com/fourth-amendment-gun-rights/

https://www.washingtonpost.com/national/health-science/five-states-allow-guns-to-be-seized-before-someone-can-commit-violence/2018/02/16/78ee4cc8-128c-11e8-9570-29c9830535e5_story.html?utm_term=.76980c821b7c

http://www.nwherald.com/2018/03/28/state-rep-david-mcsweeney-files-two-bills-to-curb-gun-violence/abu8b5y/

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