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Old March 9, 2018, 11:00 AM   #1
TomNJVA
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Gun Restraining Orders

I was just reading about Gun Violence Restraining Orders (GVROs) and, although I do not like the name, there may be some merit in this approach to preventing violence, as well as some potential for abuse.

In general, law enforcement exercises its authority to arrest, confine, or restrict a person after a crime has been committed, and for good reason as removing a citizen’s rights is a serious matter. In some cases, however, there are clear signs that violent behavior is likely if not imminent, especially in domestic abuse situations. For this reason, domestic restraining orders and other protective orders are long established in law as a means of attempting to prevent violence. These orders are narrowly tailored to restrict a person’s movements and contacts with respect to a specific entity and are ordered by a judge based on evidence. Intended to be used in emergency situations, they are temporary in nature with due process following very shortly after the order in executed. In domestic disputes that involve or threaten violence, the restraining order may also order the removal of firearms from the household.

The question is, would such a law that allows temporary removal of firearms outside of a domestic abuse or specific threat situations be constitutional and effective in preventing violence? Five states, Californian Oregon, Washington, Connecticut, and Indiana already have “Red Flag” laws that allow the seizure of guns based on some level of evidence provided to a judge, and they claim that these laws have been effective, at least in reducing suicides and possibly other violent acts against others. Many other states are now working on such laws after the Parkland shooting.

I can see pros and cons with such laws. If Florida had a Red Flag law the Parkland Florida sheriff/police departments would have had the authority to remove the guns from an obviously dangerous person, even though he had not yet broken any laws. I can see the value of these laws in reducing suicides and violence with guns, which could take some pressure off other efforts to restrict gun ownership, provided the laws are properly written and enforced. And therein lies the rub.

The evidence requirements for a judge to issue a restraining order are well below the “beyond a reasonable doubt” standard needed for conviction. Since the subject of the order is not present at the hearing with the judge, this power to disarm citizens is subject to abuse by vengeful spouses, co-workers, and anti-gun sheriffs. In a sense the process is similar to the indictment process, and it has long been said that one can indict a ham sandwich.

So what are your opinions on the concept of expanding restraining orders to include gun seizures from people judged to pose a general danger to unspecified others? And if favorable, how should such laws be structured and enforced so as to surgically target clear-cut cases without being a burden to our 2nd amendment rights?

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Old March 9, 2018, 11:06 AM   #2
Lohman446
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Judged by whom and with what presumption of innocence and right to effective counsel?

What concerns me when we have this discussion is seized property may not have the same rights you as an individual are guaranteed. I seem to recall this being a big concern with personal aircraft and DEA seizures - basically the agency was assumed to be correct in its seizures and the owner had little access to due process.
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Old March 9, 2018, 11:09 AM   #3
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I don't think the concept is terrible, but execution invites problems. My state recently introduced temporary protective orders (something unlike traditional injunctive relief with a TRO and preliminary injunction prior to the final order). There are enough problems with it that some jurists doubt whether aspects meet constitutional standards.

The idea behind these TPOs is that someone who feels threatened could file a protective order against the person from whom they feel the threat. These are almost always filed pro se with some assistance from a social worker or legal aid attorney.

An ex parte hearing (a hearing in which the alleged threat isn't present in court) is held. An order typically issues with some kind of prohibition against the absent party. Police officers may collect items pertinent to the order. The matter is set for hearing within several weeks. I've defended only one. It lacked any merit, but was granted until the later hearing. In the meantime, my client had the keys to her rental properties taken and her rights as a landlord violated.

One judicial anxiety is that a TPO would be used by a criminal gang prior to executing someone.

If an angry girlfriend seeks vengeance and obtains such an order against you, how will the police store your arms? Will they file a number across the top of your trap gun? Will you get them back? How much time and money will it take to get them back?

Does the grant of an initial meritless TPO show on your public record so that you need to have it expunged so it isn't an issue in every subsequent background check, including NICS?

New procedures often don't work smoothly or as anticipated.
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Old March 9, 2018, 11:44 AM   #4
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The problem with the idea is that it already exists in law(s), what you're actually talking about is "adjusting" the law so that the standard of proof is reduced to, essentially, hearsay.

The other problem is that a piece of paper, no matter who's names are on it, guarantees NOTHING!!!

Neville Chamberlain had a piece of paper that "guaranteed Peace in our time!"

That didn't work out so well.....


Beginning of the week, there was a murder/suicide in my local area. Estranged husband shot his wife to death, then shot himself, dying a few hours later in the hospital.

She had a restraining order against him. Not only total no contact, but he was prohibited from possessing a gun, for 8 years (or so it was reported).

Again, didn't work out so well for her, either....


You get your guns (and what bout your cash and computer?) taken, based on the accusations of someone you can't even defend against in court? I see this kind of thing as legal blessing for abuse. Let the witch hunts begin!
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Old March 9, 2018, 12:11 PM   #5
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Quote:
Originally Posted by 44AMP
The problem with the idea is that it already exists in law(s), what you're actually talking about is "adjusting" the law so that the standard of proof is reduced to, essentially, hearsay.
It’s a bit worse than that.

Traditionally, we’ve had injunctive relief. In that process, one files his complaint for a temporary restraining order, preliminary injunction, and injunctive relief after the court has heard the case. Let’s say that my client has a salesman who has left and taken the client list with him. I can file a complaint asking the court to stop the salesman from calling on any of my client’s customers, and I should get a hearing the same day I file the complaint. Neither the salesman nor his attorney need to be at that hearing for a temporary restraining order (though judges do like to see that I gave notice of the hearing on a temporary restraining order to the salesman). I get to speak to the court all by myself about the harm to my client and the necessity that the court issue a temporary restraining order. The court ways the potential harm of my complaint to the salesman, and I have to file a bond with the court so that if my complaint is false the salesman has money against which he can claim. In fact, my temporary restraining order is not even effective until I file that bond.

A couple of weeks later, the court holds a hearing on a preliminary injunction. This is not a full trial, but the salesman is present and gets to tell the court why an injunction against him is not appropriate. If I cannot convince the court of the necessity of a preliminary injunction, and order for the duration of the case restraining the salesman, the temporary restraining order is dissolved and the salesman is free to do as he wishes until the case is eventually heard and decided.

The framework for these new protective orders is quite different. There is no effort to identify and give notice to the target of the protective order. No bond is filed. In my sole experience on this, when the court holds the hearing at which the target of the protective order is permitted to respond and learns that the person who filed for the protective order is malicious and was coached by others to miss use the protective order process, there are no consequences for the false filing.

To reiterate, I am not suggesting that temporary protective orders or gun restraining orders are bad ideas as a matter of public policy, but as they are presently arranged the do invite mischief.
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Old March 9, 2018, 01:32 PM   #6
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Quote:
Originally Posted by TomNJVA
The question is, would such a law that allows temporary removal of firearms outside of a domestic abuse or specific threat situations be constitutional and effective in preventing violence? Five states, Californian Oregon, Washington, Connecticut, and Indiana already have “Red Flag” laws that allow the seizure of guns based on some level of evidence provided to a judge, and they claim that these laws have been effective, at least in reducing suicides and possibly other violent acts against others.
According to friends in the Connecticut Citizens Defense League, the new (as of a year or two ago) law in Connecticut has not proven to be effective in accomplishing anything other than penalizing citizens without due process. The due process as Connecticut views it is the cops take your guns, then you can humbly ask the court to please give them back. The answer is usually "No."

How can anyone honestly claim that such a system has prevented anything? You can't prove a negative. I have no idea how many times this law has been used since it was passed. Pick a number -- 1,000 times? Out of those 1,000 people whose guns were taken away, how many would otherwise have shot someone? I don't know, you don't know, and there's no way for the people praising such laws to know.
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Old March 9, 2018, 01:46 PM   #7
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What other rights can so quickly peeled away ? How about seizing knives, baseball bats, power tools, etc.? Impounding motor vehicles ? Cleaning out medicine cabinets ? Blacklisting alcoholics, forbidding them to use or purchase alcohol ? Last time I looked, being an alcoholic was not a chargeable offense. And as noted, the standard of evidence will be hearsay and little else. Next we'll be having trials in absentia, then hearings where the accused is not allowed to have counsel on the grounds that it's an "administrative" matter.
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Old March 9, 2018, 01:58 PM   #8
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Quote:
To reiterate, I am not suggesting that temporary protective orders or gun restraining orders are bad ideas as a matter of public policy, but as they are presently arranged the do invite mischief.
That they do. In my state a very similar order called an ex parte can be filed in domestic cases. Judges can order that firearms be seized, individuals removed from their residence, separated from their children, contact with the protected person prohibited, and all sorts of other restrictions... all based on just a hearing with the protected party. Of course all of this is temporary until an actual hearing with both parties where due process prevails.

I agree with the overall goal, however you are spot on with the bold statement. In my county, a non-profit organization that focuses on domestic violence is allowed to file the order in front of the judge with the victim. This non-profit is advertised and has office space at the court house. Individuals who go to magistrates to seek redress are often sent to the non-profit. If one of the volunteers for this organization is present, it is all-but ensured that an ex parte will be issued. The problem is I have interviewed numerous individuals who have stated that the volunteers from this organization do a fair amount of "coaching" to the protected persons on what to say to obtain this order. One lady I spoke with during a background investigation told me that she had separated from her husband temporarily, and during the first couple of weeks of the separation he told her that he wanted to see the kids on the weekend. She didn't want him to, and he was quite adamant that she would not keep his kids from him. Out of fear of what her custody would be like if they remained separated, she went to seek legal advice and eventually spoke to the domestic violence non-profit. She went there, and the volunteer told her to omit some of what actually happened and (in her words) "overemphasize" other parts. She was promised that he would be kept from taking the kids while the order was in place, despite the fact that he never abused her or threatened her. Ultimately she got some real legal advice, and her attorney advised her it would be in her best interest to not testify to all of the things that were contained in the document.

A good percentage of these ex parte orders do remain temporary. Once adjudicated, if the restricted person is smart and hired an attorney, it is typically found that the burden of proof has not been met to remove their firearms/remove them from their kids/etc.
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Last edited by 5whiskey; March 9, 2018 at 02:10 PM.
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Old March 9, 2018, 02:11 PM   #9
Aguila Blanca
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Quote:
Originally Posted by 5whiskey
A good percentage of these ex parte orders do remain temporary. Once adjudicated, if the restricted person is smart and hired an attorney, it is typically found that the burden of proof has not been met to remove their firearms/removed them from their kids/etc.
Your post reminded me that the Connecticut orders of this type are ex parte. I suppose that's the legal description for any unilateral order in which the subject of the order hasn't been present or represented. If I understand correctly, the CT version takes the guns on the basis of the ex parte order, and the subject of the order then has to try to get them back at the subsequent hearing. That seems very unconstitutional to me.
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Old March 9, 2018, 02:36 PM   #10
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Quote:
Originally Posted by 5whisky
The problem is I have interviewed numerous individuals who have stated that the volunteers from this organization do a fair amount of "coaching" to the protected persons on what to say to obtain this order.
I have encountered this problem as well. I understand that providing legal assistance to people who for one reason or another have not pulled their lives together can be a special challenge. However, I do question the ethics behind legal advice that essentially is "You can file this form, and say the following three things to get what you want. Next!".

I've had friends who worked for legal aid. Their workload is too high, and they are most often trying to do the right thing, but their clients are a problem for any system.
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Old March 9, 2018, 02:46 PM   #11
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I understand that providing legal assistance to people who for one reason or another have not pulled their lives together can be a special challenge. However, I do question the ethics behind legal advice that essentially is "You can file this form, and say the following three things to get what you want. Next!".
I do as well, but I don't necessarily blame the individual volunteers. Like legal aid friends you reference, I do honestly believe that most of the individual volunteers honestly feel they are trying to do the right thing. I personally believe there are oversight issues with the one specific non-profit that I reference. The volunteers are not attorneys, but have special permission to represent (they actually use the term advocate for, but calling it by a different name doesn't change what it is) and guide someone in seeking a restraining order. It is the only such exemption to licensure for legal counsel that I am aware of in my state. I believe the volunteers could benefit from some additional training.
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Old March 9, 2018, 03:12 PM   #12
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I think you are hitting on why I have an adverse and questioning reaction to such ideas. They are good ideas in theory but ripe for abuse. Many years ago my ex-wife was advised by an advocate, in the process of the divorce, that the only way she was going to get what she wanted was if I hit her. So one Sunday afternoon she decided that was going to be her goal.

Luckily I'm not an idiot and called the police the moment she decided to have a physical altercation and was sitting in the drive when they got there. I handed them the keys to the safe (at that point in my life I had one of the el-cheapo gun safes), showed them where I had marks on me from her, and pointed out the fact that she was still very much alive as solid evidence I had not started it or engaged in the fight other than to remove myself from the house.

The responding officers told me flat out what had happened, gave her the option of leaving herself for the day / night or leaving with them, and advised me to seek a restraining order and note their names and badge numbers on the request the next day. Granted with no hearing (I had to put in writing my complaint) within about an hour of me being at the court house. She never contested it later for that matter.

Still I was surprised how easy a restraining order was to get. I didn't even have my lawyer go up with me as he said I could handle it without him. He was surprised the officers had told me to reference them as suggesting it which seemed to be, in his mind, the key to why I got it.
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Old March 9, 2018, 04:24 PM   #13
Bartholomew Roberts
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I think for the concept to work you’d need to limit standing for who could apply for the order and you’d need a shorter period to a hearing than what is commonly done for temporary protective orders now.

From a gun violence perspective, the biggest reduction in deaths would come if gun owners just stopped shooting themselves in the head. That’s almost 2/3 of gun deaths right there.
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Old March 9, 2018, 04:47 PM   #14
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Originally Posted by TomNJVA View Post

I can see pros and cons with such laws. If Florida had a Red Flag law the Parkland Florida sheriff/police departments would have had the authority to remove the guns from an obviously dangerous person, even though he had not yet broken any laws.
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That is questionable. It has been reported that the shooter on more than one occasion had made death threats to other students. Some of the students had shown the messages to school officials and notified them that the shooter was bringing weapons to school. He also supposedly committed some assaults, including pointing a weapon at his mother.
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Old March 9, 2018, 04:54 PM   #15
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The combination of the Easily Offended Generation and the GVRO with rubber stamp "Mental Health Professional" is one of the most dangerous parts of the current crop of repressive proposals.
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Old March 9, 2018, 06:52 PM   #16
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The Parkland shooter broke a ton of laws, several of which would have made him a prohibited person unable to purchase or own firearms. He wasn't charged. So, he wasn't convicted. So, he wasn't reported to NICS.

It is particularly disappointing to see the people at the top of that command structure (Gov. Rick Scott!) throw RKBA under the bus to escape those failures.
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Old March 10, 2018, 02:43 PM   #17
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A friend in 2010 was getting a divorce at the advice of a lawyer he removed all firearms from his home to a secure place, where I came into picture I stored them for him.
When custody and support part came up his soon to be ex. filed a false report of him threatening to shoot her. With the help of the local Domestic Violence Center and her lawyer she got the order and when the police showed up to seize his guns. none were there. He showed a witnessed letter where they were and when they were stored there. She was charged with filing false report finally.
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Old March 10, 2018, 03:14 PM   #18
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A guy here had pretty much the same experience when his old lady had him thrown out.
She also alleged child abuse but after 90 days investigation in three counties, there was no evidence so he gets to see the kids he dotes on, some.

Quote:
The Parkland shooter broke a ton of laws, several of which would have made him a prohibited person unable to purchase or own firearms. He wasn't charged. So, he wasn't convicted. So, he wasn't reported to NICS.
I have read that there was an agreement that students not be arrested so as to avoid the "classroom to penitentiary pipeline". That is working real well, isn't it?
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Old March 11, 2018, 03:15 AM   #19
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I have read that there was an agreement that students not be arrested so as to avoid the "classroom to penitentiary pipeline".
I have read that the shooter's last name (Cruz) put him in a minority classification, and arrests of those in that group are routinely not made in order to maintain some kind of quota...

One reads all kinds of things. Some are true, some are not.
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Old March 13, 2018, 01:27 PM   #20
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I have prior experience with this in the state of N.C. A family member had dementia and became unstable. There are laws already in place now that provide help in these situations. It required, I think 3 people, to make a sworn statement before a judge to have him interviewed by a doctor to determine his mental state. This did not find him guilty of a crime, it would not have penalized him financially were he found mentally sound of mind but it did get him professional help and everyone was safe. And he had the opportunity to defend himself before judgement was passed. It also provided an evaluation within 3 days, not weeks.

This new proposal may well be a good idea, I think it would save lives. But its effectiveness cannot be measured, nor will it eliminate mass murders.

I want to endorse this, I really do. But this is just another law in the sting of many more to come simply because it is unmeasurable and imperfect.

When we find a solution that eliminates these tragedies, protects our rights and ends countless more, ineffective laws on the horizon, I will happily get on the band wagon.
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Old March 13, 2018, 03:17 PM   #21
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I have read that there was an agreement that students not be arrested so as to avoid the "classroom to penitentiary pipeline". That is working real well, isn't it?
You can read the agreement: http://www.ncjfcj.org/sites/default/...%20-%20MOU.pdf

It was supposed to cover only misdemeanors, but apparently didn't work out quite that way.
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Old March 13, 2018, 03:18 PM   #22
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It is a sound idea in theory. My concern is the accused often has no means to defend their rights before the order is issued. Due Process is not when your opponent has access to the judge but you do not.
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Old March 13, 2018, 09:51 PM   #23
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Originally Posted by JN01
You can read the agreement: http://www.ncjfcj.org/sites/default/...%20-%20MOU.pdf

It was supposed to cover only misdemeanors, but apparently didn't work out quite that way.
It couldn't possibly work, when the stated (and real) intent was to reduce the number of "disadvantaged" students arrested for crimes. The problem is that, once there's an initial "improvement" in statistics, the powers that be want to see continued improvement. So it starts by ignoring misdemeanors, and the statistics look better. But more serious crimes continue, and once you've completely stopped reporting misdemeanors, the only way to show continuing improvement is to incrementally ignore more and more serious offenses.

A few years ago I read a series of articles about a grammar school principal who was ultimately canned for much the same sort of Ponzi scheme, except in her case it was grades rather than crimes. To make her school look better, she started changing grades. The school started being written up as a success and she was being widely praised. The problem was, the dumb kids weren't any less dumb, and to continue showing improvement year after year she had to change more grades every year, and by greater margins. I think (IIRC) it fell apart when someone finally realized that the kids coming into middle school from this award-winning grammar school weren't doing any better than kids from the other schools in the city. Then someone started an investigation, and the truth came out. Bye-bye career in education. (Although by then I'm sure she qualified for her pension, so she probably just retired.)

You can't fake statistics to show non-existent improvements forever. It just doesn't take long for it to catch up with you.
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Old March 14, 2018, 12:01 AM   #24
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The laws on the books need to be enforced. What good will new laws do if they don't enforce them properly. It was report the Parkland shooter was expelled for fighting, 3 fights in 6 months. It was also reported a DV assault which he was not arrested for, as well as animal cruelty charges again not arrested for. Any of those would have made him a prohibited person from buying or possessing a firearm legally or possibly had him locked up which would have prevented that shooting by him.
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Old March 14, 2018, 10:45 AM   #25
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Any of those would have made him a prohibited person from buying or possessing a firearm legally or possibly had him locked up which would have prevented that shooting by him.
Not exactly.

First, you'd need a conviction. (or guilty plea)

THEN, you'd also need that it not be a juvenile conviction and that the records not be sealed or expunged when he turned 18.

A background check doesn't check expunged records, nor can it look into sealed court record, either. It might find sealed records and cause a delay or it might not, I don't know the system well enough to know if it could.

NICS is not the indepth kind of investigation done for a security clearance. Some want it to be, but currently, it isn't.

And, even if it was, its not a guarantee that any individual won't commit murder or mass murder. We've seen it happen, both in Texas and Florida in recent years.

And, even if he had been convicted and become a prohibited person, that is no guarantee that the shooting would have been prevented. Only that he wouldn't have been able to get the gun through legal channels.

Nor would having him be locked up be positive prevention, unless he stayed locked up. These things might have changed his mind, and therefore "prevented" the shooting, but might have is not would have.

They might only delay the killer. They might only have prevented him from going on his killing spree on that particular Valentine's Day.

Claiming that had these things happened he would have been stopped is intellectually dishonest, and wishful thinking, at best.
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