Why Red-Flag Laws Are Worse Than You Think

The Void-for-Vagueness Doctrine, a cornerstone of American jurisprudence, requires laws to be written “in a manner that does not encourage arbitrary and discriminatory enforcement” (Kolender v. Lawson). By forcing a judge to perform the tenebrous ritual of predicting a person’s future criminal behavior in the absence of any violation of law, red-flag statutes descend to the most disreputable level of “arbitrary and discriminatory” legislation. Due process is always denied when a law fails to comport with the Vagueness Doctrine’s imperative for clear and consistent standards.​

Red-flag hearings must rely entirely on a “presumed fact” (the defendant poses an imminent danger to himself or others) being established by a “basic fact” (for example, the defendant has been repeatedly overheard saying, “I’d like to kill that idiot”). But Cornell Law School’s Legal Information Institute notes that, under Tot v. United States, a presumed fact satisfies due process only if it passes a “rational connection” test: There must be strong reason to believe that the presumed fact is more likely than not to flow from the basic fact on which it depends (Leary v. United States). In today’s verbally immoderate society, there is almost never a rational connection between people’s insolent, bombastic, or sinister comments and the likelihood of future criminality. To function as intended, red-flag laws must deliberately abandon the rational connection test and alienate themselves from fundamental due process.

Mental disease evidence is likely to play a role in many red-flag hearings, yet this material often stands at odds with due process. Clark v. Arizona recognized the vagaries of mental disease evidence, including “the controversial character of some categories of mental disease, the potential of mental-disease evidence to mislead, and the danger of according greater certainty to [this] evidence than experts claim for it.” We can imagine how easily a red-flag hearing could shatter due process by granting undue weight to exotic psychiatric testimony. Ironically, this material will likely be held in particular esteem, as it ostensibly flows from scientists and “experts.”

Because “reasonable doubt” has been long established as the standard of proof for criminal cases, it must naturally apply to judicial proceedings in which an individual, who has not even been charged with a crime, can be stripped of a constitutional right. Nevertheless, red-flag laws often rely on “a preponderance of the evidence,” a radically diminished standard of proof. This, above all other injuries to due process, offends our system of liberty and fair trial.​