Where was the AG in defending the state constitution (which he swore an oath to uphold when he took office) when this law was being debated? The state constitution should outweigh any statute or public act -- why isn't the AG commenting that enforcing the law is unconstitutional?Section 7. Security of person and property � searches � seizures � warrants. The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.
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Section 13. Right to bear arms. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
none at all.Is there any repercussion for someone that falsely accuses someone and firearms are confiscated ?
It depends on the state, and I have not read the Colorado version. As it was enacted in my state last year, there is no due process before the seizure. The complainant makes the claim, a warrant is issued by a judge without the defendant being present or having been notified, and the police come and seize the firearms. Any "due process" occurs only after the seizure, when the defendant has an opportunity to appear at a hearing and try to argue why his firearms should not have been taken away, and why they should be returned to him.44_AMP said:I hear people saying the Red Flag laws allow guns to be seized without due process. Is that actually correct, or is it that the new laws reduce the amount of due process required??
In my state, I believe the answer is "No." To reiterate, I have not read the Colorado law.Old454 said:Is there any repercussion for someone that falsely accuses someone and firearms are confiscated ?
And it's made worse when the burden of proof for the defendant is set higher than the burden of proof (or perhaps we should say "burden of unproven allegation") for the person making the complaint. It's a very uneven playing field.44_AMP said:I don't know if a complaint = a "sworn oath or affirmation" or not. Might in some places, might not in others. But the problem is the same, either way. As long as the (false)accuser steadfastly maintains that they believed the accused was a potential threat, what can the authorities do to them??
The other side of the coin is a problem as well. PROOVE you aren't a threat...HOW???
Proving a negative is one of the most difficult of arguments. In today's social climate, it seems if you've ever had hard words with anyone over anything, you could find that used as justification that you are a potential threat. Are you a (formerly) armed time bomb, just waiting for the right combination of events to set you off? Prove you aren't!!
JohnKSa said:As I understand it, the threshold for seizure is the state's being able to show by a preponderance of the evidence that there's a "red flag". The targeted citizen then has to show clear and convincing evidence that there is no threat before they can retrieve their property and regain their rights.
Seems some confusion about this law(and yes, I live in CO).I am unclear about some things, so, if I'm mistaken, please enlighten me..
I hear people saying the Red Flag laws allow guns to be seized without due process. Is that actually correct, or is it that the new laws reduce the amount of due process required??
Is it that all anyone need do is go to a clerk, pay a fee, sign a "sworn statement" and the judge will automatically order firearms seized? Is the person sworn against also "seized" (ordered held for observation - 72hr hold??) or are they left "free" only with their guns taken??
In most ways, the red flag bill being introduced in Colorado is similar to those that other states have approved. But there are some key differences in how law enforcement would carry out seizing a weapon and how the due-process rights would be handled for someone whose weapons are taken.
Here is how the policy is designed to work: A family member or law enforcement officer would petition a court to request the ability to immediately seize a person’s guns. If a judge signs the order, the weapons can be taken away and the court must hold a hearing within 14 days to determine whether to extend the seizure and bar the person from purchasing more firearms. The longest a judge could order the seizure of firearms is 364 days. The entire process is a civil, not criminal, proceeding.
For the initial seizure order to be granted a judge must find there is a preponderance of the evidence showing that the person in question is a significant risk to either themselves or other. For the longer seizure, there has to be clear and convincing evidence.
The most notable difference between Colorado’s proposed law and what other states have implemented: The measure mandates that a lawyer be provided to the gun owner at the first hearing on whether a seizure order should be extended. The sponsors also want to provide the gun owner a longer period to be able to petition the court to re-examine their case, as other states have done.
Garnett and Sullivan hope that those two elements serve as ample due process protections — a major concern for Republican lawmakers pushing back against the red flag concept. A false or malicious effort to have someone’s guns seized, under the bill, would be subject to criminal prosecution.
Colorado use to be an excellent state, it has now become a one party state and that one party is turning it into a hot mess
There are strong signs Coloradans favor the policy. For instance, a new poll of registered Republican voters in Colorado released Thursday by GOP pollster Magellan Strategies shows that 60 percent support “allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.”
Additionally, the Giffords organization released a poll from Colorado’s Keating Research in December showing nearly 80 percent of active voters surveyed were supportive of a red flag law.
USNRet93 said:….“allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.”
I know, a 'poll' but even tho it was passed w/o a single GOP vote, not sure it's opposed by the numbers stated.
Like any poll on any subject from any organization, left, right or center, probably very little..This illustrates how polling is both irrelevant and pernicious. The polling question doesn't accurately describe the law. The law doesn't "allow" a judge to "take a gun from someone who is determined to be a significant risk to themselves or other". The law requires a court to strip an individuals of his rights and surrender all his guns without any determination that the respondent is a "significant risk".
How many of those poll respondents knew that the interrogator had misled them?
USNRet93 said:Like any poll on any subject from any organization, left, right or center, probably very little..
MY point, and anecdotal only, I think many(most) in Colorado would have liked to see people like
-Dunlap-1993
-Harris-1999
-Klebold-1999
-Morrison-2006
-Holmes-2012
-Dear-2015
Stopped...
USNRet93 said:L...all were later identified as 'problems'...
USNRet93 said:Why not include the 'person of interest' up front when this process is started?
USNRet93 said:In this day and age of lotsa info available on anything or ANYBODY, is there any law, program, plan, idea that 'may' prevent some identified wacko from getting his (put type of weapon here) and creating mayhem?
Because that would give them due process, and the point of these laws is to sidestep procedural protections.
In this day and age of lotsa info available on anything or ANYBODY, is there any law, program, plan, idea that 'may' prevent some identified wacko from getting his (put type of weapon here) and creating mayhem?
The problem is that where the defendant is not present at the hearing, any evidence, no matter how flimsy or unrelated to reality, categorically will be a preponderance of the evidence unless the petitioner volunteers evidence that would undermine his petition.
For the initial seizure order to be granted a judge must find there is a preponderance of the evidence showing that the person in question is a significant risk to either themselves or other. For the longer seizure, there has to be clear and convincing evidence.