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Old January 5, 2020, 08:25 PM   #1
Bartholomew Roberts
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95% of Red Flag Petitions in CO Approved

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.
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Old January 5, 2020, 10:07 PM   #2
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Quote:
Originally Posted by Bartholomew Roberts
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.
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.
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Old January 5, 2020, 10:28 PM   #3
Bartholomew Roberts
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The above link reflects that 95% of orders sought by police will be granted. From there, you get whatever “due process” your state offers.

Colorado does go the extra mile by offering a court-appointed lawyer - the only one of 17 red flag states to do so. 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.
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Old January 6, 2020, 12:17 AM   #4
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Originally Posted by Bartholomew Roberts
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.
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."
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Old January 6, 2020, 12:55 AM   #5
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You’ve said a mouthful there. Years ago, I attended a Firearms Law CLE that included Glenn Meyer, JohnKSa, and Massad Ayoob. During that meeting, I met a guy who had practiced criminal defense law for 10+ years. He told me the reason he was attending the CLE was because he’d never felt threatened practicing criminal defense in 10+ years; but in less than 3 years he had seen guns pointed at him twice in family law.

That can be a very volatile practice area. I’ve personally seen people falsely accuse the ex of child sexual abuse to gain an edge in scenarios where they didn’t even want custody of the children. With the current standards for red flag laws and the lifetime prohibition possibility, that is absolutely going to be used as leverage regardless of the truth.

And so you need due process for the people accused. I don’t want to see bad people armed and committing crimes. Every uncaught El Paso shooter is just one more reason to punish me - the guy who could kill more people with a pen than I ever could with a rifle. And I’m the guy who all the current laws are directed at... why is that?
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Old January 6, 2020, 08:44 AM   #6
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And so you need due process for the people accused.
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...

??

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.
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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.
AND, it's probably not going to be a middle of the night, SWAT team breaking down doors gig, to get these weapons..as has been mentioned here by 'some'.
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Old January 6, 2020, 08:56 AM   #7
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Originally Posted by USNRet
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...
Emphasis added.

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.

Ex parte and due process are difficult concepts to reconcile which is part of the reason a civil TRO typically requires a bond in order to be effective. In a criminal process, a court is supposed to quickly arraign, i.e. determine whether the charges merit keeping the defendant or require a bond, but...and this is an important "but", the defendant is present for that.
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Old January 6, 2020, 09:16 AM   #8
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Originally Posted by USNRet93
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.
Quote:
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.
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.

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.

THAT's why these laws are an affront to due process.
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Old January 6, 2020, 10:58 AM   #9
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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.
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.
Quote:
"but", the defendant is present for that.
Isn't the defendant present when LEOs seize his weapons?

Not getting to argue(NOT an attorney) but the 2 'seem' quite similar..w/o the RFL 'victim' going to jail.
Quote:
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.
But isn't that the same as the girlfriend who calls the police about abuse? When he gets arrested and loses his 'rights', freedom? 'She' doesn't need to be there, does she?

I understand the initial seizure but like domestic abuse and RFL, they both get their 'day in court'..AND if the person can't make bail, they might be in jail for quite a long time....
Quote:
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.
Isn't 'freedom' also guaranteed?

Again, not looking to argue just this is interesting.
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Old January 6, 2020, 11:07 AM   #10
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The CO law went into effect on 1 January, 2020. The analysis of the law assumes that 95 percent of CO petitions will be approved.

Quote:
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.
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Old January 6, 2020, 11:21 AM   #11
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Quote:
Originally Posted by USNRet93
Quote:
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.
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.
Holding someone pre-arraignment pending a judicial process is distinguishable from judicial process itself. RFL involve problems in how courts themselves adjudicate the rights of parties.

Quote:
Originally Posted by USNRet93
Quote:
"but", the defendant is present for that.
Isn't the defendant present when LEOs seize his weapons?

Not getting to argue(NOT an attorney) but the 2 'seem' quite similar..w/o the RFL 'victim' going to jail.
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.

Quote:
Originally Posted by USNRet93
Quote:
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.
But isn't that the same as the girlfriend who calls the police about abuse? When he gets arrested and loses his 'rights', freedom?
It isn't the same because a LEO doesn't hold a hearing and isn't a judicial official. An arrested person does not lose his rights. He will be detained for arraignment.

That the executive in the form of state police have the power to detain and charge a person is a separate matter and can surely be abused. 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.
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Old January 6, 2020, 11:23 AM   #12
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I gots another question, from this non-legal, layman.

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??
Quote:
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.
I understand but the same thing is happening when a guy is accused, then arrested, isn't it?
Quote:
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?
Quote:
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.
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?
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Old January 6, 2020, 12:21 PM   #13
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Originally Posted by USNRet93
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??
The simple answer is "Because the legislators didn't want to write the laws that way."

Prior to the onset of these red flag laws, I think every state had provision in their statutes for protective orders to be issued. But certain advocates (of exactly what I'm not clear) started agitating that it was too difficult for women to obtain protective orders, and that not enough classes of people (like the pretty girl you said good morning to in Dunkin' Donuts 20 years ago, and haven't seen since) were eligible to seek protective orders. So they put their legislative heads together and somebody came up with the notion of these so-called "red flag" orders. And, to make it easier/faster to obtain the orders (and to seize the alleged abusers firearms), the legislators decided to make the initial hearings ex parte. That wasn't an oversight -- that was a deliberate action, aimed squarely at depriving the accused of evil GUNZ! (The fact that it also deprives the accused of a Constitutional right is viewed as secondary -- sort of "collateral damage" in the effort to protect women from MEN!)
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Old January 6, 2020, 02:04 PM   #14
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Quote:
Originally Posted by USNRet93
Quote:
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.
I understand but the same thing is happening when a guy is accused, then arrested, isn't it?
No. The LEO is not issuing a judicial order and is not arraigning a defendant. They are substantively different things.

That a person may not want either to happen doesn't make them the same thing.

Quote:
Originally Posted by USNRet93
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?
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.

Quote:
Originally Posted by USNRet93
Quote:
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.
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?
The early phase of the RFL structure is the source of the seizure order. That a later phase of the RFL structure provides for reversal of the original error doesn't rob that first stage of its erroneous character.

Quote:
Originally Posted by USNRet93
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'.
Because that would not be a Red Flag preliminary hearing. That's a hearing for a protective order or a competency hearing.

At the risk of looking beyond the specifics of a law, the animating message of RFL proponents is that some things are too important to be impeded by due process. If a 100 men lose their rights in hearings of which they aren't even notified and it saves a single life, that's great.

I don't think that's great. Due process protects against real dangers.

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Old January 6, 2020, 03:19 PM   #15
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Red Flag Laws---to make this short and sweet:

1. You ransack the person's abode looking in every conceivable place a Ruger LCP could be stashed and confiscate the person's guns. (You figure out the man power to do a good job of this.)

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.

What could possibly go wrong with this scenario?
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Old January 6, 2020, 05:19 PM   #16
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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.
Problem is that stuff is relatively seldom used by males to murder wives/former wives, domestic partners and former domestic partners.

Oklahoma has one of the worst records in the US for violence against women:

Quote:
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.
https://oklahoman.com/article/559018...ce-in-oklahoma

The situation on Oklahoma is so critical that local, county, and state law enforcement agencies have teamed up with federal prosecutors in charging those who are subject to restraining orders and own firearms with federal offenses.
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Old January 7, 2020, 09:17 AM   #17
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Because that would not be a Red Flag preliminary hearing. That's a hearing for a protective order or a competency hearing.
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..
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Old January 7, 2020, 09:32 AM   #18
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Originally Posted by USNRet93
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..
Everything looks similar if you look past the pertinent differences.
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Old January 7, 2020, 10:41 AM   #19
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Originally Posted by zukiphile View Post
Everything looks similar if you look past the pertinent differences.
ok..
-out
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