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Old February 3, 2020, 06:44 PM   #50
Aguila Blanca
Join Date: September 25, 2008
Location: CONUS
Posts: 14,222
Originally Posted by USNRet93
Sounds like the 'system' worked as it should.
Originally Posted by davidsog
Baloney. It cost time money and effort in a feckless exercise.
I agree with davidsog. You can say the system worked "as intended" and perhaps not be too far from the truth, but "as it should" IMHO is quite a stretch. In fact, the proponents of the law are proclaiming that this case proves the law works "as it should," but that completely ignores the facts of the case, and the unconstitutional nature of the law itself.

Remember, what the law says is that the "respondent" (the person against whom the order will be issued) is NOT notified of the petition or of the initial, ex parte hearing. In my opinion, shared by some attorneys I know, that's a constitutional problem right off the bat, because a respondent's first knowledge of the action against him/her would be when the police show up with an order to seize his/her firearms. There's no due process under these "red flag" laws until after the fact of the initial seizure.

The Fourth Amendment of the U.S. Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
But, in the case under discussion, there was no initial, ex parte hearing. The petitioner, Mrs. Holmes, "found a loophole" that allowed her to skip over that initial hearing and move directly to the stage where/when the respondent had to ... respond. You could say, "Good -- then his guns weren't seized." But that also meant that the stage at which the judge would have seen that there was no basis for an order and tossed the case never happened. As a result, the officer was notified of a hearing and did have to appear in court (which he did through representation by two defense attorneys).

I have read the entire text of the Colorado law multiple times, and I have discussed it with an attorney who has read it multiple times. We cannot find any "loophole" in the law that in any way provides for the case to have proceeded as it did. So, if we are correct, the law (the "system") did NOT work as it should. It caused an innocent person to be served and to have to appear in court where "the system" should have made that unnecessary if it ("the system") had worked as it should.
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