Red Flags and Precrime

A previous version of this article was originally posted on Lions and Eagles.

I admit it: I’m a huge fan of sci-fi. From Mary Shelley to H.G. Wells, Ray Bradbury to Isaac Asimov, Gene Roddenberry to every  superhero movie to come out in the last decade, I just can’t get enough. The imagination, the spectacle, the endless possibilities of hope… and, of course, utopias and dystopias that teach us about the best and worst of humanity.

Minority Report is one of my favorite classic sci-fi short stories turned movie. The Department of Precrime arrests and detains would-be criminals before they have the opportunity to commit the crime. The protagonist, a cop, is accused of an unlikely future murder, and in the process finds that the system is incredibly flawed. Every attempt to avert disaster creates new possible disasters.

Back to the real world. Crimes exist. Acts of terrorism and mass shootings exist. As we look back on these events, it’s only natural to see signs that we wish we could have caught, that maybe we should have noticed. We can’t help but wonder, could this tragedy have been avoided? It’s obvious now that these people had friends in bad places. What if they had not been allowed on that particular plane? This guy’s neighbors all knew he wasn’t all there. What if someone had searched his house and found the guns? Like the Precrime Department in Minority Report, we want to catch the criminal before bad things happen.

Many of our constitutional liberties protect us from ‘precriminal’ status.  The 14th Amendment requires that no government can “deprive any person of life, liberty, or property, without due process of law”. You have the freedom to travel, and the right to retain your property, Your protected property includes any firearms you may own. Due process of law entitles you to know the charges against you, and to challenge the evidence in a fair trial. 

It was on these grounds that a federal judge recently found the FBI’s official Terrorist Screening Database to be unconstitutional. The FBI violated individuals rights by putting them on a list of pre-criminals, without their knowledge or a chance to challenge the alleged evidence.

Red Flag laws are only the latest attempt to identify and sanction pre-criminals. They are popular even in Republican circles. President Trump is on the record as saying that law enforcement should just “take the guns first, due process later,” but wise law enforcement officials are already declaring their intentions to take a more cautious and Constitutional approach.

We generally agree that “the punishment should fit the crime,” but if the crime never occurs, how can it be pre-punished? What if the situation was misread and the dangerous person wasn’t so dangerous after all? Benjamin Franklin wrote, “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.” This old idea, like the protections of the Constitution, is one worth keeping.

As we learn from disasters so do those who would harm us. Since airports and governments have implemented anti-bomb security in the last couple of decades, terrorists have taken to bombing outside of security checkpoints. Mass murderers at schools and other public places have planned their attacks with full knowledge of how their victims and police have been trained to respond. Our attempts to avert a future attack create new weaknesses. 

As an Eagle Scout for life, I do believe in being prepared. But I have learned through hard experience is that you can’t predict or prevent every bad thing that might happen. To try brings only misery and paranoia. Rather, true emergency preparation means being ready to respond to the unpredictable with a cool head and available resources.

We must respond ONLY to imminent attack. But we must respond, whether the attack is by a deranged killer against our community, or by a federal agency against our civil liberties.

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