On the issue of gun control, due process, Florida, and Trump: even if Trump's statements regarding due process are taken very generously they are still wrong, dangerously so, and inapplicable to the Florida shooting in any case. There was no need in Florida to short-circuit due process and violate rights. There was plenty of warning and plenty of time for the law to act well within its authority and regarding the limits of the Constitution. They simply didn't.
Pre-deprivation vs. Post-Deprivation Process
Due process is ALWAYS required. That is simply what the word 'due' means: it is what is required to satisfy rights. The process which is 'due' is usually pre-deprivation process. In pre-deprivation process, an adversarial proceeding such as a hearing occurs in front of a neutral-arbiter (judge) before rights are offended by the government. An adversarial process means both sides are represented and the person(s) being deprived get to make their case, examine the evidence, etc. A criminal trial is one way to satisfy due process but not the only one and never has been. It is not even the only way to satisfy pre-deprivation process.
Post-deprivation process is usually invoked when there is an immediate danger to life or property. An eviction of a tenant, for instance, often requires a hearing first and the eviction happens only if the court finds in favor of the landlord. If the landlord's property is in danger of being damaged by the tenant before that can happen, the order can be reversed: the tenant is immediately removed, then the court argues about it. Post-deprivation process means that the adversarial part happens after the defendant has already been deprived of something.
Another example is an 72-hour psychiatric hold on an individual who is (arguably) an immediate danger to themselves or others. An emergency hearing is then held to decide whether to release the individual or if involuntary commitment or some other action actually is necessary. Not surprisingly, there are rules for how this has to happen and— if these rules are satisfied— due process is satisfied as well. Process is not short-circuited, merely follows a different path.
Attorneys among my readers may be cringing that this explanation simplifies things a bit. Although this is quite true, I am not writing for attorneys but for people (like Trump?) who have no understanding of the law. This is also why I am uncharacteristically not peppering this piece with citations: just understand that there are already provisions for emergency circumstances and there have been for centuries. Lack of such options is not really the problem (here).
Not Relevant Anyway
In the case of the Florida shooter, Cruz, this really does not matter anyway. There were opportunities and plenty of time for authorities to do things the long and slow way. It is not disputed that the would-be shooter, Cruz, interacted with law enforcement many times (the exact number, either 23 or 36, apparently depends on how you count) over a period of several years. This was not a last-minute development, not in any sense, any more than it was in the case of Virginia Tech. What is more, at least three incidents rose to potential felonies. Arguably a number of them did, but that hardly matters: Cruz, at the least, was the subject of a 9-1-1 call where he is alleged to have threatened his adoptive brother with a firearm, a potential felony. Further, he was alleged to have texted threats to his ex-girlfriend and her new boyfriend. Making specific threats of violence or death to specific individuals in a specific context and putting his name on it is a potential felony. It is indisputably reasonable cause for a criminal investigation which is in turn likely to furnish probable cause for arrest. It can be argued that imminent danger and probable cause for arrest was already present with no need for an investigation before-hand (post-deprivation process), but the slow way would likely have worked as well.
If Nikolas Cruz had been convicted of or plead guilty to, say, felony assault, particularly as an adult, this would have started a criminal record. Given a criminal record, it would have been much more likely his other activities would have been put together. The FBI, for instance, might have immediately seen that the subject of the called-in tip already had a history of potential violence. Certainly, it would have made it harder for Cruz to pass a background check to purchase firearms!
[Note, I am not excusing the FBI here for dropping the ball by not referring the tip, merely saying that local authorities might have made the FBI's error less likely.]
Who Should Bear the Blame
Random law-abiding citizens should not be punished for this incident by having their constitutional rights to due process nor their natural, common law, and constitutional rights to keep and bear arms violated. Period. Giving more power to the very authorities who dropped the ball has two results:
- the power will be abused in the wrong situations
- there will still be nothing to guarantee it will be used to prevent tragedy
The same authority which failed to act in this case can still refuse to act in the future, but they will have even more tools to abuse authority when they feel so inclined. There may be ways in which the existing process can be tweaked (I am cautiously in favor of GVROs myself, I have written elsewhere about potential loopholes in juvenile criminal records and background checks), but none of that really matters here. The background check did not succeed because a juvenile record was prematurely expunged, but because no record was ever created in the first place because the local authorities failed to do their jobs.
The people who should be punished (under whatever process is due) for this horrific act of violence are, in order:
- the shooter himself
- the local sheriff's office, including potentially the sheriff and individual deputies
- whoever at the FBI failed to pass the phoned-in tip to the regional office as procedure required
It is possible that other legitimate targets for ire may come to light. The first one, the shooter, is ongoing. It is actually unusual for the perpetrator to be available for justice. I had to endure the long process of a trial for the shooter at my school, but many of the perpetrators suicide or are killed by police. There is a potential for closure available here in that process and that is not a small thing. The second one is best conducted by Floridians and particularly those in the affected county through whatever process is available under their state constitution. At the very least, the locals can and should respond at the ballot box, but that is not something any of us can do for them; they have to want to take action. Finally, we are told that an investigation of the missteps within the FBI is ongoing. Perhaps this will yield results and perhaps it will not. We, as citizens, need to keep on top of this process, but it is too early to expect results.
None of these things particularly involve making new laws, short-circuiting due process, or even gun-control at any level. The criminal justice system failed in what it is already authorized and charged with doing. The failure cost lives. The details of the precise magnitude of the failure and why are still forthcoming, but the fact that it occurred is not really in question.
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