Gabriel A. Delaney, M.Phil., is a second-year law student at Yale Law School in New Haven, CT. He received his Master of Philosophy in Comparative Government from the University of Oxford (2017) in Oxford, UK. He also received his B.A. in Political Science from the University of Pennsylvania (2015) in Philadelphia, PA. Jacob D. Charles, J.D., M.A., is a Lecturing Fellow and Executive Director of the Center for Firearms Law at Duke University School of Law, in Durham, NC. He received his J.D. from Duke University School of Law and his M.A. in Political Science from Duke University. He also holds M.A.s in Philosophy and Theology from Biola University in La Mirada, CA and a B.A. from the University of California Irvine, in Irvine, CA.
J Law Med Ethics. 2020 Dec;48(4_suppl):126-132. doi: 10.1177/1073110520979412.
In response to the continued expansion of "red flag" laws allowing broader classes of people to petition a court for the removal of firearms from individuals who exhibit dangerous conduct, this paper argues that state laws should adopt a double-filter provision that balances individual rights and government public safety interests. The main component of such a provision is a special statutory category - "reporting party" - that enables a broader social network, such as co-workers or school administrators, to request that a law enforcement officer file a petition for an Extreme Risk Protection Order (ERPO). A double-filter provision would not give reporting parties a right to file a court petition directly. Instead, parties would file a request for petition with law enforcement officers (first filter), who must seek an ERPO from the court if they find the reporting party's information credible. That information is then transmitted to the court (second filter) as a sworn affidavit of the reporting party. The goal is to facilitate a balanced policy model that (1) widens the reporting circle in order to feed more potentially life-saving information into the system, (2) mitigates the risk of erroneous deprivation of constitutionally protected due process and Second Amendment rights.
针对“红旗”法律的持续扩张，这些法律允许更广泛的人群向法院申请剥夺有危险行为的个人的枪支，本文认为，州法律应采取双重过滤规定，平衡个人权利和政府公共安全利益。该规定的主要组成部分是一个特殊的法定类别——“报告方”，它使更广泛的社交网络，如同事或学校管理人员，能够要求执法人员提出极端风险保护令（ERPO）申请。双重过滤规定不会赋予报告方直接提出法庭申请的权利。相反，当事人将向执法人员提出申请请求（第一道过滤），如果执法人员认为报告方的信息可信，他们必须向法院申请 ERPO。然后，这些信息将作为报告方的宣誓书提交给法院（第二道过滤）。目标是建立一个平衡的政策模式，（1）扩大报告范围，以便将更多可能挽救生命的信息输入系统，（2）减轻错误剥夺宪法保护的正当程序和第二修正案权利的风险。
