{"id":7558,"date":"2023-10-27T15:44:18","date_gmt":"2023-10-27T15:44:18","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7558"},"modified":"2026-09-17T06:41:32","modified_gmt":"2026-09-17T13:41:32","slug":"community-caretaking-and-red-flag-laws","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7558","title":{"rendered":"Community Caretaking and Red Flag Laws"},"content":{"rendered":"

This is a commentary on Corniglia V. Strong, US Supreme Court, May 17, 2021.\u00a0 This is a massively, important case on two fronts.<\/p>\n

Number one: firearm confiscation and red flag laws.<\/p>\n

Number two: a little more guidance on the so called Community Caretaking<\/a> Doctrine as it applies to homes.<\/p>\n

Why did officers enter a home to seize guns after a welfare check?<\/h2>\n

\u00a0Let me give you some quick facts.\u00a0 This occurred in Rhode Island.\u00a0 The background on what happened is that cops were called to a house because a husband, the night before, kind of threatened suicide in an indirect way.\u00a0 He told his wife that he was tired of fighting, tired of arguing.\u00a0 \u201cWhy don’t you just shoot me right now and get it all over with?\u201d\u00a0 That was kind of his tone.\u00a0 The wife then went to a hotel for the night.\u00a0 She called the husband the next morning.\u00a0 No answer.\u00a0 She feared that he actually did commit suicide.<\/p>\n

She called the police to do a welfare check on him.\u00a0 They ended up contacting him and he basically assured the cops that he was not a danger to himself.\u00a0 However, he did agree to go to the hospital voluntarily to do a mental, psychiatric evaluation.\u00a0 While he was gone, the cops then spoke to the wife, and she returned to the home several hours later.<\/p>\n

After speaking to the wife, the officers knew that he had a gun, or guns.\u00a0 They entered the home without a warrant, without consent, and no exigency, to go seize the husband’s firearms.\u00a0 Would community caretaking apply here?\u00a0 The rationale is that if we don’t seize these guns, maybe he comes back from the hospital and kills his wife, kills himself and so forth. So this would be something like best practice, correct?<\/p>\n

Do you need exigency to enter a home on a domestic violence call?<\/h2>\n

But think about it; when you enter a home to investigate a domestic violence situation, you do not get into that home simply because it’s a domestic violence call.\u00a0 No, you get in there, if you get in there, because you’re able to articulate some kind of exigency, emergency, and so forth under the Mercy Doctrine; to protect somebody, to protect a wife, to render aid, to prevent the husband from hurting his family and so forth.\u00a0 And also to investigate what’s going on.\u00a0 So that’s why you get in there.<\/p>\n

Well, community caretaking is not dependent upon exigency. \u00a0It doesn’t require exigency.\u00a0 It just requires a reason to believe somebody needs or wants your help.\u00a0 Even if there is no exigency, community caretaking is often applied to cars and pedestrians. You see a driver maybe driving very slowly on the highway.\u00a0 That\u2019s not illegal, but maybe just a mechanical issue.\u00a0 So you stop the car and check on the driver.\u00a0 \u201cHey, are you okay?\u201d\u00a0 \u201cIs your car okay?\u201d\u00a0 That is community caretaking.\u00a0 There is no exigency there; nobody\u2019s in imminent danger and so forth.<\/p>\n

Does the community caretaking doctrine apply to homes?<\/h2>\n

Well, let\u2019s return to the case.\u00a0 The husband sues to get his guns back.\u00a0 He has a lot of problems getting his guns, but he finally gets them back.\u00a0 Then he sues over this whole entry.\u00a0 He’s saying, \u201cLook, you should have never even gone into my house under those conditions.\u201d\u00a0 And then he filed a federal lawsuit, and he lost.\u00a0 Then he appeals to the First Circuit and again loses. The First Circuit affirmed the actions of the police by saying that this was legitimate community caretaking.<\/p>\n

\u00a0At this point, we have the First Circuit case.\u00a0 But, it’s not okay!\u00a0 And here’s why:\u00a0 because warrantless entries into the home are fundamentally based on some form of emergency, exigency, or safety issue; something!\u00a0 Under those circumstances, we cannot wait for judicial pre-approval. That’s what warrantless home entries are based on.<\/p>\n

Now, this case went to the US Supreme Court, and the decision was written by Justice Thomas.\u00a0 He confirmed that the community caretaking doctrine does not apply to homes.\u00a0 He wrote that it has never applied to homes, and wrote about needing the other traditional requirements for entering the home; emergency aid, consent, hot pursuit<\/a>, that type of thing.<\/p>\n

Are red flag laws still enforceable without a warrant?<\/h2>\n

So the ramifications of this case are wide, and extremely far-reaching for two reasons.<\/p>\n

Number one, let’s talk about red flag laws. Many states around the country are trying to pass laws or have passed laws that allow police officers to enter a home to seize firearms for safekeeping, even though the subject, the person who may be a danger to himself or others, is gone.\u00a0 Well, think about it. He’s gone. He’s already at the hospital.\u00a0 Or he’s already in the back of a police car.\u00a0 And so he’s there’s no way that he can access those weapons.\u00a0 What happens to those laws?<\/p>\n

Well, my personal opinion is that they’re done.\u00a0 There is no way that you can enforce a red flag law that gives police permission to warrantlessly enter a home to seize firearms without judicial pre-approval. \u00a0And don’t forget that that statute, if it says as much, cannot supersede the Fourth Amendment.\u00a0 So the Fourth Amendment, according to the Coniglio case, says that you need something more than just community caretaking to enter a home and seize firearms.\u00a0 So\u00a0 any kind of red flag law that says otherwise is certainly problematic.\u00a0 Now, can cops get consent from the wife or another occupant that has lawful access to the weapons?\u00a0 Sure. \u00a0Now that could work.\u00a0 But if you don’t have that, then the traditional red flag law with no judicial authorization will not work.<\/p>\n

Why is it so hard to get seized firearms back?<\/h2>\n

Number two, on the other side, we have so many second amendment advocates that are looking at this case as a huge blow to gun grabbers.\u00a0 Reviewing red flag laws, there is a case to be made for seizing firearms to prevent imminent harm to other people.\u00a0 There’s certainly a time and a place for it.\u00a0 But a lot of these cases seem to involve an opportunity for some people to just grab firearms, without the necessary judicial pre-approval process. \u00a0Also, in a lot of these states like New York and New Jersey that do seize firearms on a regular basis, it is almost impossible to get these guns back.<\/p>\n

And that’s what the husband experienced in Rhode Island.\u00a0 By the way, he had to sue to get his guns back, even though he was found to be mentally fit and not a danger to himself or others.\u00a0 And then, of course, the other issue is that finally, we finally have a Supreme Court case directly on point, that says that community caretaking does not apply to homes.\u00a0 That just makes sense, because basically there may be no exigency!<\/p>\n

That\u2019s a great case.\u00a0 It has far-reaching consequences. We’ll see how it plays out.<\/p>\n

Related from Blue to Gold<\/h2>\n