Colorado Enacts Red Flag Law

[zukiphile]

Because that would give them due process, and the point of these laws is to sidestep procedural protections.

Why sidestep them then? What do the authors of this plan wish to achieve by "sidestepping procedural protections"?

They want a process for people who've committed no crime, but who someone wants to legally disqualify from having the means to defend himself. In our system, that isn't conventionally possible.

The lack of due process isn't a problem with Red Flag laws. It's the point.

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?

Any ideas? I would be a shame if the death toll is the 'price we pay'..

Let's define who is a "wacko". Is he threatening someone? Is he living in a manner that suggests he cannot care for himself? Is he acting like a loon?

In my state, a social worker can initiate the process by which a guardian is appointed and the "wacko" becomes his ward. If he is found to be incompetent, the ward loses several rights, including the right to have a firearm.

My guess is that every state has some sort of similar process. Do you know of any that don't?

 

[Aguila Blanca]

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.

The problem is that this isn't the first hearing -- it's the first hearing after the seizure. In other words, it's the second hearing. The first hearing is conducted without the defendant being present, being afforded an opportunity to be present, without the defendant being informed of the complaint against him (or her, but these laws will almost certainly be used against males far more often than against females) or allowed an opportunity to confront or to cross-examine his/her accuser. That does not strike me as being commensurate with what we generally consider to be due process, but the proponents of these laws have adopted the mantra that because the accused gets a hearing within two weeks after the fact, due process has been preserved.

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.”

But who made up the poll, and who conducted the poll? Were the people who said they favor the new law informed that the judge's order would be issued without the accused having been informed of the complaint or allowed an opportunity to confront his/her accuser? That's supposed to be a bedrock principle of our legal system but, once GUNZ! are involved, such formerly bedrock principles seem to be sacrificed to the mantra of "If it saves just one life ..."

 

[zukiphile]

So my question, and a very important one, is what standard of proof is used at the final disposition hearing?

At the real hearing, the one held at the two week mark, it's clear and convincing.

UPON HEARING THE MATTER, IF THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE, BASED ON THE EVIDENCE PRESENTED PURSUANT TO SUBSECTION (3) OF THIS SECTION , THAT THE RESPONDENT POSES A SIGNIFICANT RISK OF CAUSING PERSONAL INJURY TO SELF OR OTHERS BY HAVING IN HIS OR HER CUSTODY OR CONTROL A FIREARM OR BY PURCHASING, POSSESSING, OR RECEIVING A FIREARM, THE COURT SHALL ISSUE AN EXTREME RISK PROTECTION ORDER FOR A PERIOD OF THREE HUNDRED SIXTY-FOUR DAYS.

 

[Aguila Blanca]

If we combine information from posts #5, #14, and #23, we can summarize the crux of the issue. It's a two-part issue:

First is that the first hearing is conducted without affording the accused any opportunity to rebut the charges or to confront the accuser. In short, it's a kangaroo court. At that kangaroo court, the burden of proof is a "preponderance of evidence" on the part of the accuser, with no mechanism for any contradictory evidence to be submitted to the court. That's an exceptionally low burden when we consider that the result of the hearing may be to revoke someone's constitutional right.

Secondly, at the follow-up hearing, the first opportunity for the accused to defend him/herself, the burden of proof is raised to "clear and convincing evidence" -- on the part of the accused. It doesn't require that the accuser now offer clear and convincing evidence in order for the seizure to be upheld,** it requires that the accused must offer clear and convincing evidence to counter a charge that required only "a preponderance of evidence." It's bad enough that the accused has to prove a negative. It's orders of magnitude worse when the burden of proof for the negative is a higher burden than the burden for the accuser when the complaint was lodged.

As zukiphile has commented, it appears that the entire process has been devised specifically and intentionally as a way to bypass what has heretofore been one of the most fundamental principles of our legal system.


** [Edit] See post #26. Zukiphile has pointed out to me that I overlooked the fact that at the first "real" (bi-lateral) hearing the accuser must make his/her case to the higher "clear and convincing" level in order for the emergency order to remain in force.. This is marginally less bad than I had originally thought, but still far from benign or good.

 

[sigarms228]

We got a phone call stating that you murdered JonBenet Ramsey. We need you to prove you did not or we are arresting you and charging you with murder.

Is this what it is coming to?

 

[zukiphile]

Secondly, at the follow-up hearing, the first opportunity for the accused to defend him/herself, the burden of proof is raised to "clear and convincing evidence" -- on the part of the accused.

It's the other way around.

UPON HEARING THE MATTER, IF THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE, BASED ON THE EVIDENCE PRESENTED PURSUANT TO SUBSECTION (3) OF THIS SECTION , THAT THE RESPONDENT POSES A SIGNIFICANT RISK OF CAUSING PERSONAL INJURY TO SELF OR OTHERS BY HAVING IN HIS OR HER CUSTODY OR CONTROL A FIREARM OR BY PURCHASING, POSSESSING, OR RECEIVING A FIREARM, THE COURT SHALL ISSUE AN EXTREME RISK PROTECTION ORDER FOR A PERIOD OF THREE HUNDRED SIXTY-FOUR DAYS.

It's the petitioner who still needs to prove the significant risk, but now by clear and convincing evidence.

I don't see the second hearing as the same sort of travesty the first is, but it still isn't appropriate for two reasons.

1. The subject of the hearing isn't actually whether the person has committed an act that violates a criminal prohibition, but whether the judge doesn't like what he is hearing about the respondent and limits his own risk by granting the one year order stripping the respondent of his rights. This is almost Minority Report style forecasting.

2. What is essentially a criminal sanction is imposed on the basis of clear and convincing evidence, rather than evidence of guilt beyond a reasonable doubt.

Beyond a reasonable doubt is supposed to be the more difficult standard, yet we know that criminal defendants are convicted of acts they didn't commit in very serious matters.

 

[zukiphile]

We got a phone call stating that you murdered JonBenet Ramsey. We need you to prove you did not or we are arresting you and charging you with murder.

Is this what it is coming to?

It's queerer than that. JBR's mother filed a petition that she is afraid you will hurt someone, but not that you have. We are taking your guns today, and we'll talk to you about it in two weeks.

If you read the last half of post #14, you will see that a police officer would have had an order prohibiting him from carrying, but for a judge who thinks these laws are dangerous.

 

[sigarms228]

It's queerer than that. JBR's mother filed a petition that she is afraid you will hurt someone, but not that you have. We are taking your guns today, and we'll talk to you about it in two weeks.

If you read the last half of post #14, you will see that a police officer would have had an order prohibiting him from carrying, but for a judge who thinks these laws are dangerous.

Yes I read that and thanks for posting of actual experience of abuse of such laws. There can be several motives for abusing such when it is so easy to do including envy, revenge, and extortion. Someone even mentioned somewhere that it could be used to intentionally disarm someone to make them vulnerable for robbery/home invasion.

 

[5whiskey]

I don't see the second hearing as the same sort of travesty the first is, but it still isn't appropriate for two reasons.

I actually see it as a greater travesty because of the long-term, much more permanent nature of your rights restriction on the basis of this...

What is essentially a criminal sanction is imposed on the basis of clear and convincing evidence, rather than evidence of guilt beyond a reasonable doubt.

And then there is this...

As petitioners become more adept at exploiting the unbalanced nature of these laws, the abuse will become more common.

Zukiphile posted a good example in Post 14. I have an example of something similar, though it isn't of the crop of current "red flag" laws. In my state an abused spouse can obtain a domestic violence protection order which bars the subject of the order from possessing firearms. It has a similar ex parte hearing as the red flag laws, with a due process hearing to follow within 14 days. After a judge grants the initial order, for 2 weeks, it is served on the subject and his firearms are seized by the Sheriff Deputy serving the order. While conducting a background investigation on a new-hire a few years ago, I learned that his wife had taken out one of these protection orders out on the new-hire years ago. Upon speaking with his wife (they are still together, this happened during a rocky patch in their marriage years ago), she basically admitted that she went to a non-profit domestic violence advocate and was coached on what to say to have a protection order. The reason why SHE wanted the order? He wanted to see his kids for the weekend and he told her on the phone he would show up to see them because she can't keep them from him. The reason why she was TOLD TO SAY that she wanted the order? He had made aggressive statements and insisted that he would show up at their house and she was afraid he may be violent.

He was never subject to the full 1-year order. She spoke with a divorce attorney on the matter and during the consult he questioned her and read the affidavit prepared for the ex parte hearing, advising her that it would be in her best interest to not testify to that document after she told him the whole story. The temporary protective order expired, the man got his firearms back, and they eventually reconciled and have been married many years since. He was also hired, but a great deal of explaining was needed over that issue.

 

[USNRet93]

But who made up the poll, and who conducted the poll? Were the people who said they favor the new law informed that the judge's order would be issued without the accused having been informed of the complaint or allowed an opportunity to confront his/her accuser? That's supposed to be a bedrock principle of our legal system but, once GUNZ! are involved, such formerly bedrock principles seem to be sacrificed to the mantra of "If it saves just one life ..."

BUT, that same sort of thing happens every time a woman calls the police and says that her boyfriend beat the snot outta her. The boyfriend, w/o being informed of the complaint nor confronting his 'accuser', is arrested. And yes, he is told why he is being arrested. The same way a person would be informed why their weapons are being confiscated.

We got a phone call stating that you murdered JonBenet Ramsey. We need you to prove you did not or we are arresting you and charging you with murder.

The above happens everyday..BTW-in court, the prosecutor has to prove that I DID, I don't have to prove I didn't.

 

[zukiphile]

...she basically admitted that she went to a non-profit domestic violence advocate and was coached on what to say to have a protection order.

I've seen this too.

The answer comes in response to a question from the judge, "What made you think you should file this?" and the petitioner answers along the lines of "I went to Poverty Advocates "r" Us and they said if I want an order I should say X, Y and Z."

It's disheartening. There's a courtroom of people dealing honestly and playing their roles. The petitioner doesn't intend to abuse the process, but presented his problem to some social service organization, who now isn't in the courtroom, but got the petitioner out of their offices by offering him the wrong solution.

 

[Aguila Blanca]

The above happens everyday..BTW-in court, the prosecutor has to prove that I DID, I don't have to prove I didn't.

And that's the problem with this (and other) red flag laws. The way these laws are written, not only does the accused have to prove he didn't -- he doesn't even get an opportunity to try to prove the negative until two weeks AFTER the so-called "emergency" order has been issued and his guns have already been taken away from him.

 

[DaleA]

I'm am wondering, how do they actually take your guns???

I mean, do they toss your house looking every place a Ruger LCP could be concealed? That would take a lot of officers' time and leave your place a mess.

Would we be talking about all the drawers out of all the dressers and cabinets, all the cloths out of the closets, all the air vents removed etc. etc. etc.

 

[DaleA]

California has had this law for a while and here's how it's working out for them.

(Spoiler alert---not well.)

[California] set aside $24 million for seizure programs, had a goal of confiscating around 20,000 guns over three years. But six years later, according to a San Francisco Chronicle report, there are still roughly 9,000 of those guns out there, with more being added to the list yearly.

https://www.thetruthaboutguns.com/2...e-guns-fast-enough-backlog-continues-to-grow/

 

[44 AMP]

I mean, do they toss your house looking every place

They might. They can trash your place, even cut open your safe, take your stuff and walk off with it. They have a court order allowing them to do it!

Don't like it? Go to court!!

Sad, but its the system we have...

 

[zukiphile]

I'm am wondering, how do they actually take your guns???

I mean, do they toss your house looking every place a Ruger LCP could be concealed? That would take a lot of officers' time and leave your place a mess.

Would we be talking about all the drawers out of all the dressers and cabinets, all the cloths out of the closets, all the air vents removed etc. etc. etc.

I'm going to guess (I'm not a PO) that it depends what they find when they walk up to the door and knock.

If they see you inside and you yell through your door that they'll never take you alive, it's going to get exciting for everyone.

If you answer the door and look and speak like a normal human being, accept service and say something like "Good evening, gentlemen. What did my ex-wife say I did now?", they may make themselves feel safe, then ask you where you guns are so they can take them. If you look like Ted Kaczynski's mug shot, they may search your cabin for obvious hiding spots.

Between the extremes, there maybe POs who would maneuver you into a disorderly conduct arrest.

 

[L2R]

I have experienced a family situation about 8 years ago in NC.

There was a means to stop a potential threat.

He made several threats in anger and no one knew if he would or could follow thru.
I finally removed the firing pin from his weapons and felt a bit better until he decided to trade one in. So that didn't last long.

It took 3 people in front of a judge to ask for help. The police arrived soon after and escorted the man peacefully to a facility for a 72 hour evaluation.

In his early 80's, he was diagnosed with Dementia among other things. He failed every test and no one was harmed and he got the care he earlier refused.

We have a mechanism already that seems to work. Not just one person but 3 facing a judge seems less likely to be abused. Not impossible but not every X or angry neighbor will find 2 others to join in their madness.

So, I agree that these red flag laws are not a help to us but rather a means for gov't to bypass civil rights.

 

[Aguila Blanca]

I'm going to guess (I'm not a PO) that it depends what they find when they walk up to the door and knock.

It may also depend on whether you live in a state that has registration. In New York state, for example, any handguns must be listed on your permit, and if I'm not mistaken you can't own a handgun in New York State without a permit. So you can assume that the officer(s) will arrive already knowing what handguns they're supposed to seize, so they better find them all or things may get more interesting. I don't know about New York and long guns.

In my state, as long as I have been buying firearms all handgun sales/purchases had to approved by the State Police, and each sale requires a 4-part form in addition to the federal 4473. One copy of the form stays with the seller, one copy goes to the buyer, one copy goes to the State Police, and the last copy goes to the local police department in the buyer's city of residence. Since Sandy Hook the law has been revised so that this process now applies also to long guns but, prior to Sandy Hook, private sales of long guns were allowed without the state permission call and subsequent report. So my local PD has a partial inventory of what firearms I own. They know about all my handguns, but I think I have only purchased one long gun (a .22 Magnum rifle) since Sandy Hook. So they're going to know what handguns they're looking for, but how they approach determining how hard to search for long guns would probably depend on a variety of factors.

Pennsylvania is another state that has a system for reporting some gun sales (I think only those sales that are made by FFLs, but I'm not certain about that). Some police departments regard the sales database as a "registration," although the Pennsylvania courts have ruled that it isn't a database because it isn't complete. That said, I think we can probably be sure that if faced with a court order, any police department would start by looking to see if the subject of the order has any firearms listed in the database.

How the implementation of these laws plays out is one of those things that I think the pro-RKBA advocates are going to have to monitor.

 

[44 AMP]

In some places, old records never die, but they aren't always kept "alive", let alone current.

I lived in New York State, until 1979. I had a pistol permit. Pistols were listed on the permit, by make, caliber, serial number, and barrel length!! (never did get what barrel length was useful for...)

Father's and Mother's pistols were all listed on all our permits. We did this after an auto accident in the mid 60s, when we learned an unpleasant truth.

If Dad had died, and no one else in the household had his pistol on their permit , then the guns would have to be surrendered to the state. The State police would hold them for 30 days, then destroy them, even if a permit was applied for. The Sherriff would hold them until the permit was either approved or denied. SO, everyone in the family got a permit, including us boys when we turned 18, will all Mom & Dad's pistols listed on them, so the state couldn't steal them in the event of a family tragedy.

But, old records never die, it seems. In or about 2001, I got a letter from Saratoga County. First, it informed me that, since I was no longer a NY resident, (apparently they just noticed me leaving the state in 1979) my permit was no longer valid. ok, fine, ...whatever..right?

BUT they also said they wanted it BACK! That's right, they wanted me to return the wallet sized, NON-laminated piece of paper (not even cardstock, but paper) that they issued back in 1975!

And to top it off, they wanted to know (I'd say "demanded" though the language was polite and contained no overt threat) they wanted to know where the pistols listed on my permit WERE!
My reply won't pass TFL language filters, so I won't quote it here, suffice to say "go pound sand" and "take a flying leap...." cover the jist of it in more polite fashion...

So, here's something to consider, if you live in a place where the State has a list (or partial list) and they order your guns seized, and give the police that list, how do you think they will act, and how "hard" will they search for a gun or three that you haven't owned for 20+ years, if the state list says you own it???

If you don't have immediately available (and acceptable) paperwork "proving" you don't have the gun any more, I doubt they'll take you at your word. If you have a really zealous enforcer(s), they could take your home (and every other property you own) apart, brick by brick, stone by stone looking, and not in a careful manner.

They aren't required to leave things in tidy order, in fact, they aren't required to leave things in a condition where they can be put back together, or even repaired. You could, literally, be left with a pile of rubble for a home, (and a car!!!) without restitution until a court rules you are entitled to compensation, which could be months. or even years. AND, even when you do get a check for your damages, it will be THEIR estimate, and may not cover all your costs...


its not a good thing. It should NOT be law, but until a court rules it invalid, it is the law we have to live under.

 

[Aguila Blanca]

^^^

But if it saves just ONE life ...