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Red Flag laws, aka Extreme Risk Protection Orders (ERPO) are state laws that provide for a process of confiscating firearms that are accessible to persons, who by judicial order, are found to be either "at risk (as in suicide)" or "place others at risk (as in having threatened others").

According to Giffords, In the 16 states, "orders can be issued ex parte (without notice to the respondent)" that authorizes local law enforcement to confiscate firearms.

I understand, and appreciate how it makes sense to not anger or infuriate a person that a judicial process is occurring behind his back that could lead to confiscation of his property for fear that the person might act before firearms are confiscated.

OTOH, how is a proceeding that does not allow a person to defend or explain his actions to a judge in advance of confiscation (even temporarily) of his property, How is that not a violation of his due process?

Has either the Supreme Court or lower Federal courts addressed this specific issue (ex parte ERPO)?

(Note: Why posted in Politics SE as opposed to Law SE : The President has signaled his policy to advocate for States to adopt some form for these laws, apparently he is (at this time) not advocating Federal legislation to adopt Red Flag Laws )

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    There are other instances of confiscation. For examples, if I get arrested by carrying a kilogram of weed ("I knew it was a bad idea to use a transparent bag!") then the weed will get confiscated even before a judge writes a confiscation order. And my personal belongings, even the legal ones (wallet, cellphone) will be kept away from me while I am jailed and still waiting for a judge to even see my case. – SJuan76 Aug 10 '19 at 16:08
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    @SJuan76, major diff, you are arrested, ERPO - no arrest – BobE Aug 10 '19 at 16:42
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    Presumably from a constitutional point of view this would constitute a "taking" and hence require compensation. Also once the guns have been confiscated the owner can presumably appeal the order. – Paul Johnson Aug 10 '19 at 17:45
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Red Flag laws, aka Extreme Risk Protection Orders (ERPO) are state laws that provide for a process of confiscating firearms that are accessible to persons...

We seem to be in agreement that it is a process, what seems to be the contention is if "pre-crime" confiscation can ever constitute due process.

But even that characterization can be challenged if given enough effort. Police confiscate items all the time before charging someone with a crime during the course of other investigations including computers, cell phones, vehicles, whatever might be pertinent. If no charges are filed (and no civil forfeiture invoked), the items are generally returned after a period of time. Ostensibly, someone has raised a concern about someone to law enforcement under these red flag laws, who must then undertake an investigation to determine if a crime has been committed or can be prevented. This is the closest parallel in my mind, since in both instances law enforcement must be able to make a case before a judge before taking any action.

As far as how long a gun owner can expect to be inconvenienced, from Wikipedia

How long the guns are taken away under these “extreme risk protection orders” depends on the circumstances, and can usually be extended only after another court hearing.

In some of the states that have passed these laws, not just anyone can raise a red flag. In Oregon, only people actually living with a person may file a petition, and in Indiana it is restricted to only law enforcement (Source)

I can understand someone's frustrations if they have their personal property confiscated, but the Supreme Court has upheld no-notice confiscation in other areas of law, and I don't believe just because things are guns that they would be treated any differently. For instance, in Calero-Toledo v. Pearson Yacht Leasing Co. (1974) the Supreme Court held (summarized by Justia):

[...] postponement of notice and hearing until after seizure did not deny due process, since (1) seizure under the statutes serves significant governmental purposes by permitting Puerto Rico to assert in rem jurisdiction over the property in forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions; (2) pre-seizure notice and hearing might frustrate the interests served by the statutes, the property seized often being of the sort, as here, that could be removed from the jurisdiction, destroyed, or concealed, if advance notice were given; and (3), unlike the situation in Fuentes v. Shevin, supra, seizure is not initiated by self-interested private parties, but by government officials.

From the Federal Rules of Criminal Procedure (Rule 41):

(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government: (1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district;

Possible crimes I can think of off of the top of my head that law enforcement can be investigating after the initiation of a red flag law petition: Improper storage of a firearm, Making terroristic threats, Domestic violence, Posession of a controlled substance, the list can go on. What law enforcement actually investigates depends on the situation and the content of the actual complaint. But there doesn't seem to be any difference, to me, between the initiation of this type of seizure and that of those done under so-called No-knock warrants. To the best of my knowledge the Supreme Court has not ruled directly on such raids, but the Department of Justice has published opinions asserting that right, such as this one from 2002:

After giving full consideration to these submissions, and having reviewed the pertinent statutes and case law, we conclude that federal district court judges and magistrates may lawfully and constitutionally issue no-knock warrants—i.e., warrants authorizing officers to enter certain premises to execute a warrant without first knocking or otherwise announcing their presence where circumstances (such as a known risk of serious harm to the officers or the likelihood that evidence of crime will be destroyed) justify such an entry.

Summarizing the whole thing, judges already seem to have the authority to issue warrants that allow police to enter someone's home and take their property while conducting an investigation. All Red Flag laws seem to do is ensure that possible crimes concerning guns are treated the same way as other possible crimes that many times also include guns and increases the risk to police while enforcing the law. In some cases, it may even be argued that Red Flag laws may help protect gun owners by restricting who can actually file a petition.

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    Momentarily setting aside threats of criminal acts, how does potential suicide become a law enforcement action where suicide has been decriminalized? – BobE Aug 11 '19 at 15:35
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    @BobE Physician assisted suicide requires procedures to be followed and if they are not followed that is a crime. While dying by suicide with a gun by statute doesn't require a doctor's prescription, reckless discharge of a weapon is still a crime, and someone in that state of mind is also very likely to wind up hurting others. – Jeff Lambert Aug 11 '19 at 15:47
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    RE " and I don't believe just because things are guns that they would be treated any differently. " I suspect that 2nd Amendment advocates would disagree. Nevertheless the specific confiscation you cite pertains to a yacht that was actually being used to commit criminal acts prior to the confiscation. -- Generally I might agree that: "police confiscate items all the time before charging someone with a crime" , however that is where the police have reasonable justification to be believe that a crime has been committed. – BobE Aug 11 '19 at 15:50
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    "Under modern U.S. law, suicide is no longer a crime" [legal-dictionary.thefreedictionary.com/Suicide] .. I think you may be reaching to classify a gun suicide as reckless discharge. I would propose that the overwhelming majority of gun inflicted suicides are performed in isolation. – BobE Aug 11 '19 at 15:56
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    Involuntary commitment procedures rarely occur where the person is not aware (that has notice of) and has the opportunity to object or defend themselves. My question specifically focuses on ex parte confiscations, that is where the party has no knowledge of an impending confiscation, therefore no opportunity to object, defend, seek legal counsel AND moreover where there is no crime committed . OTOH, a threat to commit a crime would be suitable for police investigation – BobE Aug 11 '19 at 16:11

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