Due Process for Temporary Firearm Confiscation

President Trump has suggested that when police have reason to believe that a person may pose a danger to self or to others that they should be allowed to confiscate the person's weapons and then follow with due process procedures.  This poses a few problems.  First, most guns a person has will be found in that person’s home.  There are exceptions to the warrant requirement for entering a home to search and seize.  But compared to other places that searches and seizures without a warrant are perfectly legal, searches of and seizures from a home without a warrant are relatively rare.  Police “might” be able to do a seizure of a person’s weapons from the home based upon some emergency or exigent circumstances.  Second, by police entering a home and searching for and seizing weapons presupposes a criminal justice matter.  The criminal justice system is not always the best solution to social problems.

The rationale for seizing a person’s guns before police obtain a warrant is that obtaining a warrant can be time consuming.

I suggest an alternative.

Make the seizure of a person’s weapons a civil procedure rather than a criminal justice matter.  Law Enforcement would still be the best resource to enforce a civil temporary forfeiture matter, but could be initiated by family, schools, friends, social workers, therapists, and doctors.  Set the bar low enough that firearms could be seized with little difficulty, perhaps at a preponderance of evidence.  That would mean that a person is simply more likely to commit a violent act with a firearm than not.  If you are into percentages, that would mean that there is a 51% possibility that a person would commit an act of violence based solely information available.  Then shift the burden to the gun’s owner to show that there is not a preponderance of evidence to seize the firearms.  The burden of proof belongs to the state in criminal matters; in civil matters the burden shifts to the respondent, in this case, the gun owner.  Give the gun owner three days to respond to the civil action.  Allow the respondent to have an immediate hearing at the end of that three-day period, but not require the respondent to have that hearing within three days.

Keep the proceedings at a low-level court like a magistrate court or other court not of record.  (A court of record is one that records testimony.  All courts maintain records of trial outcomes.)  Attorneys would not have to be involved but nothing would prohibit a gun owner from hiring an attorney.  If the gun owner is unable to overcome the preponderance of evidence burden, then allow the owner to return at a later date and attempt at a subsequent time or to appeal to a court of record, such as a district or superior court.  Protect those who make a claim against a firearm owner who acts in good faith, from civil action.

If the gun owner does not file a response within three days, then the firearms would remain with the police until the owner can show that there is not a preponderance of evidence to keep the firearms from the owner.  If after a year the owner cannot show cause to return the firearms, the owner would lose permanent ownership of the firearms.  The firearms would then be transferred to a licensed gun dealer who would sell the firearms at a fair market value to someone not prohibited from owning a firearm and the proceeds would then be given to the (former) owner, less a handling fee for the licensed gun dealer. 

During the period of time that the firearms have been seized, either temporarily or permanently, the owner’s name and identifying information would be placed in the instant background check database.

The idea is to protect people from acts of firearm violence while also protecting a person’s civil rights and guarantee constitutional due process rights.