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Old January 16, 2020, 05:34 PM   #1
DaleA
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Red Flag Law Case thrown out (Colorado)-abuse of the law?

An older woman whose son was shot and killed by a police officer brought a "Red Flag" case against the police officer.

Previously the police officer had been cleared of any wrong doing concerning the shooting.

The woman claimed she and the police officer had a "child in common" perhaps reasoning that she had a child (the man that was killed) and the police officer shot him. Please note the woman was the one who called the police about her son...her call brought the police into the situation.

The "child in common" reasoning was rejected by the judge.

It would appear that there would be a VERY strong case to bring against the woman for filing the suit since according to the judge she clearly had no bases to bring the suit and the claim "child in common" could be considered perjury.

The question one asks though is do you want to bring a lawsuit against a grieving mother who lost a son?

Article about the story is here:
https://www.coloradoan.com/story/new...er/4483559002/
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Old January 16, 2020, 06:02 PM   #2
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Yes, I do...She tried to use the law as personal retribution. Charge her...
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Old January 16, 2020, 06:08 PM   #3
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Quote:
Originally Posted by DaleA
The question one asks though is do you want to bring a lawsuit against a grieving mother who lost a son?
Yes. She tried to use the legal system for revenge against a police officer who was doing his job. Abuse of the legal system should never be tolerated.

The mother is entitled to grieve, but she's not entitled to create her own fantasy about the incident. I watched a 9-minute video showing the incident from the perspective of two police officers' body cams. The university cop, Morris, backed away from the kid about 100 feet and he must have told him to drop the knife at least 20 or thirty times. It was faint, but you could hear the kid saying something like "My life is over." When Morris started to go for his taser, the kid charged him and both cops fired.

And the mother's claim is that Officer Morris used excessive force. That's idiocy. The kid was a real life example of the Tueller Drill in action. It was suicide by cop, and that's all it was. The mother should not be allowed to continue her efforts to destroy the life and career of a police officer who tried very diligently NOT to kill her son.
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Old January 16, 2020, 06:10 PM   #4
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She committed perjury. A felony. She deserves to be punished, regardless of the circumstances.
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Old January 16, 2020, 07:08 PM   #5
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It would appear that there would be a VERY strong case to bring against the woman for filing the suit since according to the judge she clearly had no bases to bring the suit and the claim "child in common" could be considered perjury.
Except the lawmakers deleted that possibility, so not only are you guilty until proven innocent; when you are absolved, you have no recourse against the malicious false testimony.
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Old January 16, 2020, 07:55 PM   #6
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Quote:
the lawmakers deleted that possibility
Uuuuhhh... No.

13-14.5-114. Liability. EXCEPT AS PROVIDED IN SECTION
13-14.5-112, THIS ARTICLE 14.5 DOES NOT IMPOSE CRIMINAL OR CIVIL
LIABILITY ON ANY PERSON OR ENTITY FOR ACTS OR OMISSIONS MADE IN
GOOD FAITH
RELATED TO OBTAINING AN EXTREME RISK PROTECTION
ORDER OR A TEMPORARY EXTREME RISK PROTECTION ORDER, INCLUDING
BUT NOT LIMITED TO REPORTING, DECLINING TO REPORT, INVESTIGATING,
DECLINING TO INVESTIGATE, FILING, OR DECLINING TO FILE A PETITION
PURSUANT TO THIS ARTICLE 14.5

https://www.westword.com/news/colora...pdate-11609942

Having checked a clearly perjurous basis-of-application block, she's toast.
https://www.scribd.com/document/4430...Order-Petition

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Old January 16, 2020, 07:56 PM   #7
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Originally Posted by FITASC
Except the lawmakers deleted that possibility, so not only are you guilty until proven innocent; when you are absolved, you have no recourse against the malicious false testimony.
I don't think that's correct. The application must be made as an affidavit, signed under oath and penalty of perjury.

Page 3, Section 13-14.5-103, line 6:

https://leg.colorado.gov/sites/defau...177_signed.pdf

The mother has been asked by the press why she perjured herself in her application for the order. She has declined to answer, other than saying that she doesn't think she perjured herself. When asked why not, she declines to answer because she wants to preserve her strategy for an appeal of her denial.

My guess is that she's as psychotic as her son was. If I were a betting man, I'd wager that her argument is that she brought her son into this world and Corporal Morris took him out of this world, so they have a common interest in her son's life. (Which, of course, is not what the law means, but it's my guess that this is her twisted logic.)
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Old January 16, 2020, 08:09 PM   #8
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....wager her argument is that she brought her son into this world and
Corporal Morris took him out of this world, so they have a common interest
Not even close....

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Old January 16, 2020, 08:31 PM   #9
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mehavey, we already know that she claims to have a child in common with the officer. That document only confirms that she made the claim, it doesn't explain how or why she doesn't think making the claim was perjury. I suspect that you and I pretty much agree what "have a child in common" means. Apparently the woman has another view, which so far she has declined to explain.

If you read the definitions on page 2 of the law, they imply the customarily-accepted view that having a child in common means both parties are the parents:

Quote:
(b)
PERSON WHO HAS A CHILD IN COMMON WITH THE RESPONDENT,
REGARDLESS OF WHETHER SUCH PERSON HAS BEEN MARRIED TO THE
RESPONDENT OR HAS LIVED TOGETHER WITH THE RESPONDENT AT ANY TIME;
Since it's unlikely that the mother bore the deceased son as a result of a relationship with Corporal Morris 21 years ago, it follows that she has come up with her own creative idea of what "have a child in common" means. I was speculating (as I am wont to do) on what I think her [alleged] reasoning might be.
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Old January 16, 2020, 08:32 PM   #10
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Well that Red Flag law is off to a good start!!

Hopefully this will lay the ground work for getting them all repealed.
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Old January 16, 2020, 08:33 PM   #11
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Originally Posted by davidsog
Well that Red Flag law is off to a good start!!

Hopefully this will lay the ground work for getting them all repealed.
How so? Four out of five have been approved, and the proponents of the law are using this case to show that the law works as it was intended to.

The curious wrinkle is that the text of the law says that the initial application shall have a hearing on the day of the filing of the petition or the next court day thereafter, with no notice to the defendant. Yet that doesn't appear to be what happened in this case, since Corporal Morris was represented in court by two attorneys from the State. Consequently, IMHO any claim that the law worked as intended are spurious, since the text of the law clearly intends for the initial hearing to be ex parte and the defendant doesn't get his chance to defend himself until a week (or two weeks) later. So this case is an aberration under the law.
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Old January 16, 2020, 09:16 PM   #12
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The original petition was filed on the 9th. Accordingly, today's hearing wasn't likely the preliminary hearing with out notice.

Last edited by zukiphile; January 16, 2020 at 09:29 PM.
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Old January 16, 2020, 10:11 PM   #13
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Originally Posted by zukiphile
The original petition was filed on the 9th. Accordingly, today's hearing wasn't likely the preliminary hearing with out notice.
But the order wasn't issued. This was the first hearing on the matter.

One of the articles I read said something to the effect that the mother didn't request an immediate, ex parte hearing. That confused me, because I don't see anything in the law that makes that an option. That's another aspect that leads me to regard this case as a aberration under the law.
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Old January 17, 2020, 02:28 AM   #14
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Legal eagles correct me if I'm wrong, (please!) but isn't the difference between the red flag enhanced protection order and the regular protection order just a matter of process and eligibility to apply?

Doesn't the petitioner have to (honestly, "in good faith") have to state they believe there is a threat to themselves or others from the person they are filing against??

Seems in this case, the Judge decided her definition of "child in common" did not meet the necessary legal standard, and so tossed the application.

Therefore it never even got to the point of her stating there was a threat, did it??

The woman's son was killed in 2017. Since there is no other mention, we must assume she waited until 2020 to file for protection. Seems unlikely to me that any 'threat" from the officer only just materialized recently, and if not, why did she not file for a regular protection order before??

This seems to be a very clear case of someone trying to use a law to exact vengeance. Quite possibly deliberately perjuring themselves in order to do so.

For that, there SHOULD be legal punishment, bereaved, grieving mother, or not. Waiting 2+ years to take legal action against the officer who you feel killed your son wrongly just doesn't look like lashing out in immediate grief, it looks like a cold, calculated attempt at revenge via the legal system.

Not getting into the right or wrong of the law, but in this case it seems the system worked properly. An apparently spurious application was made, the Judge ruled it without merit, and it was dismissed. That is actually one of the ways the system is supposed to work.
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Old January 17, 2020, 04:48 AM   #15
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Well this incident certainly exposed some serious flaws in the law.

Nobody should be able to file for an extreme risk protection order WITHOUT an investigation by law enforcement to substantiate their claims.
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Old January 17, 2020, 06:51 AM   #16
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Quote:
Originally Posted by Aguila Blanca
But the order wasn't issued. This was the first hearing on the matter.

One of the articles I read said something to the effect that the mother didn't request an immediate, ex parte hearing. That confused me, because I don't see anything in the law that makes that an option. That's another aspect that leads me to regard this case as a aberration under the law.
Then that's even more confusing. If there was no initial order, what was the Sheriff (an opponent of the RFL) refusing to serve on the respondent PO if it weren't the initial, temporary order? I just read some local stories, and I still don't get it.

A petitioner should not have to request an initial hearing that is mandated by statute, and it isn't normally within a court's discretion to postpone that hearing.

This looks like an episode in which the result at this point is correct, but the process was mangled to get there.

Quote:
Originally Posted by 44AMP
Legal eagles correct me if I'm wrong, (please!) but isn't the difference between the red flag enhanced protection order and the regular protection order just a matter of process and eligibility to apply?
Those are some of the differences.

A regular civil temporary restraining order begins with a complaint requesting the TRO (good only for a short period), a temporary injunction (good for the pendency of the case, and a permanent injunction (an order that the defendant can't do X at all). The burden for a TRO, which can be ex parte, is more than a preponderance of the evidence, a probability that the Plaintiff will prevail, and requires the plaintiff to post a bond. In practice, this means one needs to convince the court that the TRO is necessary to avert a damage that can never be rectified. That basic structure informs somewhat abbreviated processes in criminal and domestic matters, but the idea is that quick action is balanced by safeguards and notice to the party affected.

The Red Flag initial hearing can be ex parte, and only requires that the petitioner's testimony be uncontroverted. Metaphorically, it's an intersection with a malfunctioning signal.
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Old January 17, 2020, 08:35 AM   #17
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Quote:
Originally Posted by danco View Post
Yes, I do...She tried to use the law as personal retribution. Charge her...
Quote:
In the petition, Holmes falsely claimed she is a family or household member of Morris, specifically that she has a child in common with him.
She committed perjury, did NOT have a child with the CSU LEO..charged for that for sure..

But trying to use the law for "personal retribution"..not sure that's a crime. Waste of everybody's time for sure but absent perjury, not sure that's against the law.

Women doesn't like guy she's living with playing video games all day..launches a RFL, that is thrown out by the judge..don't think that's 'illegal'..but I'm not a lawyer.

BUT this one Thrown out tho by the judge, as it should have been.
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Old January 17, 2020, 08:38 AM   #18
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Then that's even more confusing. If there was no initial order, what was the Sheriff (an opponent of the RFL) refusing to serve on the respondent PO if it weren't the initial, temporary order? I just read some local stories, and I still don't get it.
Once the RF order is issued, doesn't it immediately go to a judge..and if the judge approves, then the LEO is involved? I'm sure the LEO KNOWS about the RF process being started but doesn't take any action until a judge sees it(?)
Quote:
The “Deputy Zackari Parrish III Violence Prevention Act,” one of the various “red flag” laws emerging across the country, will allow a concerned family member, spouse, roommate, or law enforcement agency to file a petition to get a court order requiring a specific person to relinquish their firearms, or to prohibit that person from possessing firearms, if the petitioner can demonstrate that the person in question is a current danger to themselves or others.
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Old January 17, 2020, 09:11 AM   #19
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Quote:
Once the RF order is issued, doesn't it immediately go to a judge...
Judges issue orders. They come from a judge.

Quote:
...doesn't it immediately go to a judge..and if the judge approves, then the LEO is involved?
Notwithstanding what happened here, the petition is to be heard within 24 hours by a judge. In theory a judge can deny a petition, and in practice a petitioner who wasn't sufficiently coached could offer testimony so incomplete or contradictory that he doesn't even offer a preponderance of evidence. It's a real trick to be the only person speaking, but still not carry that burden.

Quote:
I'm sure the LEO KNOWS about the RF process being started but doesn't take any action until a judge sees it(?)
Other than someone in the clerk's office calling and saying "there's a person here filing an RFL petition against you", there wouldn't be a mechanism for the respondent to know that a petition is being started. The order issuing from the court at the first hearing should have to be served on the respondent in order to be effective.

Is that what the sheriff wouldn't serve here?

In my state, I need to show the court my efforts to give notice so the other party can be present for that first hearing, but those aren't RFL petitions.

Last edited by zukiphile; January 17, 2020 at 10:01 AM.
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Old January 17, 2020, 10:21 AM   #20
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Quote:
Thasis looks like an episode in which the result at this point is correct, but the process was mangled to get there.
Exactly this. This isn't an example of the law working correctly, it is an example of a judge using common sense to short-circuit what would otherwise have been a miscarriage of justice.

Had the law "worked correctly," an order would have been issued and Morris' weapons seized and held for two weeks until a hearing, at which time the order would undoubtedly have been rescinded.

As to whether the "grieving mother" should be charged, of course she should. This is a case of cold-blooded vengeance. It is no different than the cases of Aurora parents suing the ammo dealer for selling the ammo to the shooter, or the Sandy Hook parents suing Remington for manufacturing the AR-15 used in the massacre.
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Old January 17, 2020, 10:39 AM   #21
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Quote:
Other than someone in the clerk's office calling and saying "there's a person here filing an RFL petition against you", there wouldn't be a mechanism for the respondent to know that a petition is being started. The order issuing from the court at the first hearing should have to be served on the respondent in order to be effective.

Is that what the sheriff wouldn't serve here?
I get that but the sheriff wouldn't act on the order until the initial judge issued it, correct? I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge. In Colorado, to a judge first, correct? The judge saw the claim was bogus, threw it out..so the LEO had no order to execute..
Quote:
Had the law "worked correctly," an order would have been issued and Morris' weapons seized and held for two weeks until a hearing, at which time the order would undoubtedly have been rescinded
My point, isn't that initial order in CO issued by a Judge?..NOT by a LEO?Guns seized if appropriate then BOTH parties go before a judge in 2 weeks
to plead the case?
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Old January 17, 2020, 10:40 AM   #22
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I'm still trying to find the article that mentioned the mother's opting not to have an initial, ex parte hearing. Of course, it was only one article, and there an extremely remote possibility (cough, cough) that the reporter might not have gotten the facts straight. I did find this article, though:

https://www.thedenverchannel.com/new...killed-her-son

As do all the other articles I've found, this one reports that the judge declined to issue the order -- which means this was the initial hearing, because if this were the follow-up hearing the order would already have been issued and the hearing would have not been over issuing it, but over whether or not to leave it in place for a year. Yet this article confirms that Corporal Morris was represented by the state attorney general's office, so this was not an ex parte hearing -- and it was held a week after the petition was filed, not the same day or the next court day.

It's confusing, and I don't think it's entirely due to senility on my part.

Quote:
In court Thursday, Holmes refused to offer testimony to Judge Stephen Howard, saying she did not recognize him as a judge and that she didn’t believe she would have a fair and impartial hearing. She had asked him to be removed from the case because he was involved in an open records case of her's, but he denied her request.

She told Denver7 in an interview that she believed the law should be amended so "any Colorado citizen should be able to file an ERPO against a violent and threatening law enforcement officer." She also said in the interview that she did not feel like she committed perjury despite her claim about having a child with Morris.

But the judge denied her request for an ERPO for lack of evidence because Holmes refused to testify. She said she thought it “appalling” that the attorney general’s office, which represented Morris, was doing so and allowing him to keep his job.
Aside from the false claim that she had a child in common with the officer, the mother's claim was that the officer was reckless and threatening, and that he used excessive force in shooting her son.


Aha! Here's another article that mentions bypassing the initial, ex parte hearing:

https://www.rallyforourrights.com/re...titioners-son/

Quote:
Susan Holmes discovered a loophole in Colorado’s Red Flag ERPO law that allowed her to bypass the initial Temporary ERPO hearing. The way it’s supposed to work is a Temp hearing would be scheduled within 24 hours of her filing, where the judge would determine based on a preponderance of evidence if the facts on the petition were true or not, and he would either approve or deny the Temp ERPO order. Had Susan Holmes gone through this Temp hearing the case would have more than likely been denied based on her claim they had a child in common (but who knows). Turns out it doesn’t matter. This law is so poorly written, if you think you will be denied at the Temp hearing because, say…you lied, you can just bypass it and go right to a full hearing forcing the person being ERPO’d to fight back or risk losing their firearm rights. It doesn’t matter how frivolous any of it is.
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Old January 17, 2020, 10:52 AM   #23
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Originally Posted by USNRet93
I get that but the sheriff wouldn't act on the order until the initial judge issued it, correct? I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge.
No, not correct as I understand it.

My state also recently enacted a red flag law. It works similarly to the Colorado law, and I think the other states also largely follow suit. Filing the petition is NOT an order, and the police do not serve anything or confiscate firearms just because a petition has been filed. I posted a link to the actual text of the Colorado law, as enacted by the legislature. What it calls for is that, upon filing of the petition, there is an initial, ex parte hearing for the issuance of a temporary extreme risk protective order (ERPO). This initial hearing is to be held (under the Colorado law) the day the petition is filed or on the next court day thereafter:

Quote:
(4) THE COURT SHALL HOLD A TEMPORARY EXTREME RISK
PROTECTION ORDER HEARING IN PERSON OR BY TELEPHONE ON THE DAY THE
PETITION IS FILED OR ON THE COURT DAY IMMEDIATELY FOLLOWING THE DAY
THE PETITION IS FILED.
After that, a full hearing must be held within fourteen days to decide whether or not the order will become permanent (for a year). It's normally only at this second hearing that the defendant gets to argue in his/her defense.

Quote:
(5)
(a) IN ACCORDANCE WITH SECTION 13-14.5-105 (1), THE COURT
SHALL SCHEDULE A HEARING WITHIN FOURTEEN DAYS AFTER THE ISSUANCE
OF A TEMPORARY EXTREME RISK PROTECTION ORDER TO DETERMINE IF A
THREE-HUNDRED-SIXTY-FOUR-DAY EXTREME RISK PROTECTION ORDER
SHOULD BE ISSUED
PURSUANT TO THIS ARTICLE 14.5. NOTICE OF THAT
HEARING DATE MUST BE INCLUDED WITH THE TEMPORARY EXTREME RISK
PROTECTION ORDER THAT IS SERVED ON THE RESPONDENT. THE COURT
SHALL PROVIDE NOTICE OF THE HEARING DATE TO THE PETITIONER.

(b) ANY TEMPORARY EXTREME RISK PROTECTION ORDER ISSUED
EXPIRES ON THE DATE AND TIME OF THE HEARING ON THE EXTREME RISK
PROTECTION ORDER PETITION OR THE WITHDRAWAL OF THE PETITION.
Until the preliminary hearing has been held, the petition is just a petition (application), it is not an order and doesn't represent anything that can be served or enforced against the defendant.
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Old January 17, 2020, 10:57 AM   #24
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Quote:
Originally Posted by USNRet
I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge.
That is not the process. A petitioner lacks authority to direct a LEO to act.

1. A petition is filed.
2. It is heard by a judge.
3. The judge denies or grants the petition and issues an order.
4. If the order grants the petition, it is served on the respondent.

Quote:
Originally Posted by Aguila Blanca
Of course, it was only one article, and there an extremely remote possibility (cough, cough) that the reporter might not have gotten the facts straight.
Indeed.

Quote:
Originally Posted by Aguila Blanca
As do all the other articles I've found, this one reports that the judge declined to issue the order -- which means this was the initial hearing, because if this were the follow-up hearing the order would already have been issued and the hearing would have not been over issuing it, but over whether or not to leave it in place for a year.
I see your reasoning. Both the initial ex parte hearing and the subsequent hearing with notice and an opportunity for the respondent to rebut allegations and present evidence should generate their own separate orders, even if the order from the second hearing is merely to retain the restrictions set forth in the order from the initial hearing.

Otherwise, the two week hearing would show as having been held, but with no result on the docket.

I'm not telling you that's how it worked here, but how these things should work according to ordinary court docketing procedures.
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Old January 17, 2020, 11:01 AM   #25
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Sure, the LEO was notified and had representation when a regular citizen would get neither. Are any of y'all naïve enough to think it would happen otherwise?

Some of y'all think we still live under rule of law. You need to disabuse yourself of such foolish notions.

Any regular citizen--especially anyone with view that dissent from the ruling class--would have the RF order applied early and hard and maybe only THEN would some member of the kritarchy notice, "Huh, there really is no child in common. Helluva thing. The deceased target of the red flag can have all his guns back. Make sure you rape his wife and kill his other dog on the way out."
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