But with red flag orders, doesn't due process begin after the order has been approved? That's the most prevalent objection to the things -- the initial issuance is ex parte.Bartholomew Roberts said:https://www.thetruthaboutguns.com/wh...own-allegedly/
Well, nothing says “due process” like 95% of petitions being approved... and to be fair, Colorado offers many protections that the other 17 states with red flag laws do not.
It's the broadness of who can request these red flag orders that scares me as much as, maybe more than, the Topsy-turvy nature of the [alleged] due process the laws purport to provide. It makes me glad I'm a senior citizen and no longer interested in the dating scene because, IMHO, you'd have to be crazy to get involved with any sort of significant other OR to "hook up" if you're in a state with a red flag law. The potential for abuse is overwhelming -- and the proponents of the laws blithely assure us that "it can't happen."Bartholomew Roberts said:However, Colorado also allows “anyone related to the respondent by blood, marriage, or adoption; anyone who has produced a child with the respondent; and current or former spouses, domestic partners, girlfriends, boyfriends, and housemates.” to file red flag petition, ehich is also very broad.
And so you need due process for the people accused.
The law allows family members or law enforcement to ask a judge to temporarily remove guns from the possession of someone deemed an extreme risk to themselves or others. If a judge agrees, law enforcement officers are tasked with the removal of those weapons leaving agencies across Colorado to figure out the best approach.
USNRet said:NOT arguing for or against RFLs, but aren't there LOTS of instances where one person accuses another of 'something' that results in an arrest, lose of rights(freedom), and then a court date where each will 'argue ' their case? Girl friend doesn't like boy friend playing xbox all day, calls LEO and accuses him of threatening her with a face smack...or grabs her arm and pushes her...LEO called..guy almost always gets arrested...
The problem is that most of these red flag laws (I haven't read the Colorado law, but I assume it's like the one in my state) make this initial hearing to issue the order ex parte. If you don't know what that means, it means that only one side appears before the judge -- the side making the complaint. The accused doesn't even know about the request or the hearing, so there is no opportunity to face his (or her) accuser, no opportunity to cross-examine, no opportunity to present a defense. And on the basis of this one-sided ex parte kangaroo court, an order can be issed to deprive the accused of his or her property. THEN the accused has an opportunity to attend a hearing at which he or she faces the uphill battle of having to show why his or her property should be returned.USNRet93 said:Not sure of other places but it DOES go before a judge in CO, not just local law enforcement..More 'due process' than domestic abuse, IMHO.
The law allows family members or law enforcement to ask a judge to temporarily remove guns from the possession of someone deemed an extreme risk to themselves or others. If a judge agrees, law enforcement officers are tasked with the removal of those weapons leaving agencies across Colorado to figure out the best approach.
An arrest is an executive action, not a judicial determination that you've relinquished a right. Whether the process was adequate doesn't arise because there isn't any judicial process yet.
"but", the defendant is present for that.
ex parte. If you don't know what that means, it means that only one side appears before the judge -- the side making the complaint. The accused doesn't even know about the request or the hearing, so there is no opportunity to face his (or her) accuser, no opportunity to cross-examine, no opportunity to present a defense.
Remember -- the right to keep and bear arms is [supposedly] guaranteed by the Constitution. So we have a situation with these laws under which people can be stripped of their Constitutional RKBA on the basis of an ex parte hearing, which they don't attend and probably don't even know about.
The Colorado legislature’s official fiscal analysis of that state’s new “red flag” law, which took effect this week, projects that police and “family or household members” will use it to seek gun confiscation orders against people they portray as threats to themselves or others about 170 times a year. The analysis also assumes that 95 percent of those petitions will be granted, which is not far-fetched given Florida’s experience with such orders.
USNRet93 said:I get that, and executive and not 'judicial', but I see videos of people getting arrested all the time and the LEO, 'don't know the outcome, judge will decide', but they are in jail, nonetheless.An arrest is an executive action, not a judicial determination that you've relinquished a right. Whether the process was adequate doesn't arise because there isn't any judicial process yet.
USNRet93 said:Isn't the defendant present when LEOs seize his weapons?"but", the defendant is present for that.
Not getting to argue(NOT an attorney) but the 2 'seem' quite similar..w/o the RFL 'victim' going to jail.
USNRet93 said:But isn't that the same as the girlfriend who calls the police about abuse? When he gets arrested and loses his 'rights', freedom?The accused doesn't even know about the request or the hearing, so there is no opportunity to face his (or her) accuser, no opportunity to cross-examine, no opportunity to present a defense.
A LEO executing a court order isn't holding a hearing. The problem comes in how the hearing resulting in the seizure order is conducted.
An arrested person does not lose his rights. He will be detained for arraignment.
That doesn't transform their acts into an equivalent of a judicial process. On the contrary, judicial process is the remedy to those abuses, except in the early phase of an RFL process because it is ex parte.
The simple answer is "Because the legislators didn't want to write the laws that way."USNRet93 said:Why couldn't the RFL mean the people on either side go to court FIRST, each represented with counsel, and then the judge says 'take 'em' or 'don't take 'em'.
Kinda like a custody hearing??
USNRet93 said:I understand but the same thing is happening when a guy is accused, then arrested, isn't it?A LEO executing a court order isn't holding a hearing. The problem comes in how the hearing resulting in the seizure order is conducted.
No, he doesn't. He isn't free to leave, but he still has his constitutional rights and is going to see a judge very soon.USNRet93 said:An arrested person does not lose his rights. He will be detained for arraignment.
He certainly does lose his 'rights' in jail, doesn't he?
USNRet93 said:Being arrested after the LEOs being called isn't a act of a judicial process either. The RFL court process is the remedy for the seizure, isn't it?That doesn't transform their acts into an equivalent of a judicial process. On the contrary, judicial process is the remedy to those abuses, except in the early phase of an RFL process because it is ex parte.
USNRet93 said:Why couldn't the RFL mean the people on either side go to court FIRST, each represented with counsel, and then the judge says 'take 'em' or 'don't take 'em'.
2. You leave the person deemed to be A THREAT TO THEMSELVES OR OTHERS alone in their home with their pills, rope, knives, machetes, chainsaws, pressure cookers, trucks, cans of gasoline etc.
2016 deaths
A total of 95 victims were killed in domestic violence-related homicides in 2016 in Oklahoma, according to the fatality review board. The youngest victim was a newborn. The oldest victim was 78.
More than half of the victims were killed with a firearm.
Because that would not be a Red Flag preliminary hearing. That's a hearing for a protective order or a competency hearing.
USNRet93 said:BUT those happen all the time..protective orders and competency hearings..a court order to some person to stay away from another..seems similar to me..
ok..Everything looks similar if you look past the pertinent differences.