Many states are considering or already have “red flag laws” to allow a police agency to confiscate guns from an armed citizen if someone believes they pose a danger and can get a judge to issue an order to remove their firearms.
Network President Marty Hayes, in response to many members’ questions about extreme risk protection orders (ERPOs) and Red Flag Laws, sought out our affiliated attorneys’ opinions on the following questions–
1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?
2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe?
3. What consequences do you anticipate would result from refusing to open a safe?
Mark Seiden
Mark Seiden, P.A.
3948 3rd Street S PMB 387, Jacksonville, FL 32250
There is likely no topic in American jurisprudence more complex and controversial than search and seizure. In a nutshell, as a result of the abuses perpetrated on American colonists by King George and his minions, the Fourth Amendment was conceived to prevent such abuses. One of the requirements of the Fourth Amendment is that no place is to be searched absent the issuance of a warrant by a neutral magistrate upon oath or affirmation and a finding of probable cause. A search warrant is a court order commanding law enforcement officers to enter the specified premises and search for and seize the items listed in the warrant. The warrant must describe with particularity the premises to be searched and the items to be seized. You will not be given advance notice that law enforcement is coming to serve a warrant.
If the police arrive at your door with such a warrant, DO NOT resist them or argue. To do so will likely result in your arrest and additional charges for obstruction, etceteras. They will likely sit you down in a neutral area, searching both you and the area for weapons. One or more officers will be designated to stay with you in that area during the search. They can ask you questions but cannot force you to answer them.
If you refuse to tell them where the safe and/or firearms are located, they can literally tear the house apart looking for them. If you refuse to disclose the combination to your safe, the police can forcibly open it, including the use of a cutting torch if necessary. They must seize whatever items are specified in the warrant, plus any contraband that is in plain sight. Hypothetically, suppose your checkbook is on the kitchen table. They cannot seize, copy or examine the checkbook unless the checkbook is also specified in the warrant.
The police will prepare a receipt of the items they seized and will also leave a copy of the warrant. However, they do not have to provide you with the factual sworn affidavit they provided to convince the magistrate to sign the warrant. You can obtain that affidavit at a later time.
The best thing to do would be to ask to telephone your lawyer and rely upon his/her advice and above all, do not resist!
Jerome M. Brown
The Law Offices of Jerome M. Brown Esq.
1628 JFK Blvd., Ste. 1000, Philadelphia, PA 19103
215-568-0607
First of all, generally you are not going to have a problem. Depending upon your state and locale, the claimant seeking to seize your weapons is going to have to make a significant initial showing to convince first law enforcement, and then a judge, to issue an order permitting the police to enter your home with a warrant to seize those weapons.
They are going to have to present significant proof that mental health or other issues demonstrate that an individual is going to be a danger to themselves or others. These instances seem fairly rare, in some states just a few dozen cases a year. Thus, the probability that this will happen to you is rare.
If the police come with a warrant, be cooperative and take them to your guns. If you resist in any fashion, you could be charged with myriad crimes such as obstruction of justice or assault on a police officer. This could lead to your disqualification from being able to own a weapon, period, permanently under state and/or federal law.
Moreover, you just give the police reason to search everywhere in your premises and trash the place if they do not like your attitude. There is nothing you can do about it. In fact, if you are not cooperative, they will become suspicious and think you are hiding something and will search harder and more thoroughly.
If you have weapons in a safe and do not open it, they will just take the safe with all your other valuables stored inside and they will have every right to do so. You will then have issues getting your non-weapon valuables back.
Thus, if this rare situation occurs, contact an attorney immediately. Hearings to have your weapons returned should occur quickly and the period of confiscation is generally temporary for periods up to a year. Plus, I would bet that if someone wrongly uses this process, you may have legal recourse including recouping your legal fees and/or other remedies if you want.
While I know that many of you fear this threat, chances are that this will never happen to you. So, relax and do not worry about it. If it happens, call an attorney.
Jeffrey F. Voelkl, Esq., LL.M.
Robshaw & Voelkl, P.C.
5672 Main Street, Williamsville, NY 14221
716-633-4030
https://www.robshawlaw.com/About-Us/Jeffrey-Voelkl.shtml
1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?
First, ask for a copy of the warrant and do not let anyone in until you have had an opportunity to read the warrant. You will likely have to read the warrant right at the open door in the officers’ presence. Remember that when police execute a warrant, they are simply carrying out the order of a judge. For a warrant to be issued, the judge must have been presented with witness testimony and evidence to establish a legal basis for the judge to believe that firearms are possessed and located at the exact location listed on the warrant. Make sure the address on the warrant is the correct address the police are attempting to enter. If the warrant has the wrong address you can lawfully deny the police entry. If, however, the address is correct, you should comply with the police request. Remember the police are only carrying out the judge’s order, and that order was only based on one-sided facts which are probably not the full story.
There are many legal defenses to these types of allegations. There will be a time and place for you to respond and tell your side of the story. Getting agitated and not complying with the police who are only there to carry out a judge’s order that the police must presume is valid is not the time and place and will escalate an already tense situation and could result in criminal charges being filed against you. Thus, it is best to remain calm, comply with the lawful requests of the officers, and call your lawyer so your rights can be protected in court.
2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe?
If the warrant indicates the police are to remove all firearms located in the premises, and the premises are correctly identified in the warrant, then the fact that they are locked in a safe may not be a valid reason for you to not comply. Remember, these warrants are typically to remove firearms from persons believed to pose a threat. The fact that the gun is locked, but the person who poses a threat has access to the locked safe will not be persuasive to the police.
3. What consequences do you anticipate would result from refusing to open a safe?
The police would likely arrest the individual for multiple charges including Obstruction of Government Administration (NY Penal Law 195.00).
Ralph Long
Attorney at Law
120 County Road 230, Florence, AL 35633
256-335-1060
If you have never had an adversarial former spouse, angry child, or disillusioned business partner, you are fortunate, because any of these or your doctor can file a motion for an Extreme Risk Protective Order in at least 14 states. If you’ve crossed swords with a police officer who wants to get even with you for embarrassing him in court or for filing a complaint against him, you should be worried about Red Flag Laws going into effect in your state. That being said, as a municipal prosecutor and retired police lieutenant, I will offer my professional opinion for those who have “had their constitutional right to due process limited” by legislative action.
1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?
You have NO Options. Be polite and cooperative; you are basically considered a “dangerous armed adversary.” Call your attorney as soon as you can, not to stop the seizure but to start the appeal process to get your property back. Resistance could get you arrested or worse - shot. You can’t ask Mr. Gary Willis of Ferndale, MD, anymore. He was shot to death by Anne Arundel County Police at 5:17 A.M. on Nov. 7, 2018, when an Extreme Risk Protective Order was served on him. Police said he answered the door with a gun in his hand and was combative. How many of us wouldn’t arm ourselves if someone came banging on your door before daylight?
All preparations should be made prior to the police showing up at your house. All firearms should be inventoried and photographed prior to the arrival of police–in other words do it NOW. They will not give you time to do that when they come for your firearms, though they probably will give you some kind of receipt for what they take. It’s better to have your own inventory taken when your blood pressure isn’t 195/110.
I’m not advising anyone to violate a judge’s order, but some may want to consider having another firearm stored in a fireproof gun safe at a trusted friend or relative’s house so that he will have some means of protecting himself if a dangerous situation arises before the firearms are returned. Some orders may allow a hearing within a week or 10 days. But they can remain in effect for a year if the judge is anti-Second Amendment and delays a hearing to determine whether there is risk to yourself or others. The protective order will likely go to the FBI National Instant Criminal Background Check Center. If the order doesn’t prevent you from buying another gun, the NIC notification will.
2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe?
YES. The safe may be taken (unlikely because police officers are government employees and, by their nature don’t like the physical work involved in moving the whole safe) or opened by force, to include destruction of the locking mechanism. The Red Flag Court Order gives them that authority.
3. What consequences do you anticipate would result from refusing to open a safe?
It depends on how your state’s law is worded but expect arrest for P.O.P. (pissing off the police). It may be termed as “interfering with officers in the course of/performance of their duties,” harassment, assault, and/or violating an extreme risk protective order (remember an order was signed by a judge who conducted a hearing without you present), and they will pile on by adding “resisting arrest.” Try getting a concealed carry permit after conviction for a couple of those charges.
Randy L. Robinson
Attorney at Law
PO Box 682, Augusta, ME 04330
207-653-6749
The police are going to follow what their warrant says. I would make sure that you have the information regarding the firearms recorded. Give them the firearms if they have a lawful court order and fight it out in court. Any case has the potential to be a test case for overturning one of these laws.
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A big "Thank You!" to our affiliated attorneys for their responses. Please return next month when we run the second half of the comments about red flag laws we received from our affiliated attorneys.
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