Attempt to get 'Red Flag' laws for military

[DaleA]

The Fox headline is 'Dems sneak radical gun grab into defense bill'.
Yeah it's Fox.
Still, it shows the anti-gun folk are still out there.
The story is here:
https://www.msn.com/en-us/news/polit...edgdhp&pc=U531

I'm no lawyer but I suspect it's easier to put restrictions on folks in the military than on regular civilians. Although the guest speaker says military folk have more rights under the Uniform Code of Military Justice (UCMJ) than civilians do in civilian courts.

As an aside does anyone remember a law that says if you're involved in domestic violence you can't have access to firearms and what that means to the military? Heck, I could see a lot of loving spouses (I ALMOST said wives) filing domestic abuse charges against their spouses to keep them out of combat...now THAT'S a firearms loophole.

[Doc Intrepid]

It might keep them out of combat, but would definitely not be career-enhancing.

[Fireball_70]

I think you are referring to the Lautenberg ammendment that forbids those convicted of domestic violence from handling firearms.

[Tom Servo]

They're ex-parte confiscation orders. Sorry for the Twitter link, but this guy found the actual legalese they snuck into the bill.

[DaleA]

the Lautenberg amendment

Yes!
Thank you Fireball_70.

[Lima Oscar 7]

The desired effect is being realized. Patriots are leaving the military or not joining in the first place. Our youngest, high school football star, major college history major has decided to take a different career path. It’s his call and I am staying out of but under the circumstances, he’s made the right decision. The Afghan betrayal was the proverbial straw.

[44 AMP]

The Lautenberg amendment (I forget what it was attached to..) is the only gun control law I know that was actually fair.

and, by "fair" I mean it screwed everyone equally. It turned EVERYONE who had EVER hat a MISDEMEANOR domestic violence conviction into a prohibited person. It completely ignored the principal of ex post facto in law, and it contained NO EXCEPTION or exemptions for police or military personnel.

That law literally took thousands of cops off the street.

[Lima Oscar 7]

NO ONE should lose a civil right over a misdemeanor. Losing a right is a serious measure and deserving of a full blown felony prosecution. It’s a slippery slope. The next step will be to disarm someone over a traffic ticket. Lautenberg is terrible law. Scores of fine young men who had an argument with their Dad over a missed football play or bad grade have been barred from Military service due to it.

[mehavey]

They're ex-parte confiscation orders. Sorry for the Twitter link,
but this guy found the actual legalese they snuck into the bill.

Please compare/contrast /explain 1.A vs 1.B ("ex parte: vs "after opportinity to be heard..."...

[Aguila Blanca]

Originally Posted by mehavey

Please compare/contrast /explain 1.A vs 1.B ("ex parte: vs "after opportinity to be heard..."...

Probably typically poor bill writing. I agree with what I think you were proposing: that (1)(B) seems to contradict (1)(A).

The text:

(1) IN GENERAL.--Notwithstanding any other provision of law--

(A) a military court protective order issued on an ex parte basis shall restrain a person from possessing, receiving, or otherwise accessing a firearm; and

(B) a military court protective order issued after the person to be subject to the order has received notice and opportunity to be heard on the order, shall restrain such person from possessing, receiving, or otherwise accessing a firearm in accordance with section 922 of title 18.

So:

First, this is not an either/or proposition. The two paragraphs are connected by an "and," which means they both apply. The difference seems to be that, after the affected person has had an opportunity to be heard, paragraph (B) kicks in with 18 USC 922. So what's the difference? They don't tell us what part of 18 USC 922 they want to beat the poor schlemp over the head with, but we can probably assume that it's section (d)(8):

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

So the protective order part of 18 US Code 922 only kicks in after the accused has been afforded an opportunity to defend him/herself, "and" that the order specifically either

"(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or"

[mehavey]

So the protective order part of 18 US Code 922 only kicks in after the
accused has been afforded an opportunity to defend him/herself, . . .

- IF - that's the case (TBD when the legal rubber first actually hits the road) ,
I don't think I have a problem with the NDAA language.





~~~~~~~~~~~~~~~~~~
OTOH: Do legal remedies remain for the (wife/partner/husband/child) in exigent circumstances,
where the party has either committed or threatened such egregious acts as to to put life in
reasonable expectation of harm, . . . that immediate ex parte action still can be taken ?

Would that we had the wisdom of Solomon then....

[Aguila Blanca]

I have the same problem with this language that I have with all the state-enacted "red flag" orders -- they are ex parte. The Fourth Amendment 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.

Then we can look at the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The problem with "red flag" laws is that a person's firearms -- and thereby his or her means of self-defense -- may be seized before the person has had any opportunity to appear before a court and defend him/herself. Strictly speaking, these are considered civil matters, not criminal, so there's a legalistic argument to be made that the Sixth Amendment doesn't apply. I get that. But the underlying issue is that an accused can be deprived of his/her property and his/her right to keep and bear arms purely on the basis of the unsupported allegations of a single other individual. And the affected party must surrender his/her firearms and his/her RTKBA before being afforded any opportunity to appear in court to challenge and refute the allegations and, indeed, before he/she has even had an opportunity to learn what the allegations are.

In short, the process turns the concept of due process upside down and inside out. To me, red flag laws are just as bad as "civil asset forfeiture" laws (and, IMHO, the latter are nothing more than theft under color of law).

[44 AMP]

My biggest issue with these laws is that there is forfeiture of assets /seizure of property (even if only temporary) and that DOES NOT protect anyone.

What is the underlying reason for seizing, or requiring the surrender of a person's firearms?

Really, what is the reason? The action is only undertaken when someone is threatened, or feels threatened, so, bottom line, the reason is simply to prevent harm to the threatened party. Right???

BUT, taking the guns doesn't DO that. All is does is prevent the threatened party from being shot, with the guns that are seized.

My point here is, that IF the threat is real, seizing the guns DOES NOT REMOVE THE THREAT. It only removes the guns. It doesn't remove the person who is the threat.

You don't have to look very far, or very hard to find that the overwhelming number of people who are harmed, up to being killed, are not being SHOT.

If the person is a credible threat the proper thing, and the ONLY thing that protects his intended victim(s) is locking up the person. And, not letting them out as long as they are a credible threat.

Just taking away their guns and leaving them free to walk the streets, means they still have the means and the opportunity to commit harm. Take away the guns and they will simply choose an alternate tool. Knives, bricks, baseball bat, golf club, or even some chains, padlocks and a gallon of gasoline! ANYTHING on this earth that you can physically move has the potential to be used as a deadly weapon. IF the will is there, and the person is free to use it.

If you don't lock up the PERSON who is the threat, you are not removing the threat, only reducing very slightly that person's choice of tools.

Suppose you seize all their guns. Then the day after you do that, leaving the person (who is the threat) at liberty, that person goes out and illegally buys a gun from the criminal market and goes on a killing spree.

What good did it do? Nada. My point is that the red flag laws are only "feel good" things with no real possible effect to prevent harm, and are a huge potential source of abuse, intentional or not.

And then there is the whole issue of doing things contrary to established laws and legal principles. One of them being innocent, until PROVEN guilty.

[Lima Oscar 7]

Either prosecute via due process or don’t prosecute via due process. Law based on what might happen is tyranny. Freedom is risky.

[Thomas Clarke]

Lautenberg, attached in 1997 to the 1968 Gun Control Act. While the text may not be very palatable it has been tested many times in Federal Court and has not been overturned. Right now it is the wet dream of lawyers who want to litigate gun control laws and make lots of money doing it. The language as noted by many is not in keeping with our views of liberty as Americans. That and money are the feed for the lawyers. So far there have been a great many cases litigated and lost and Lautenberg has not been overturned.

[mehavey]

And then there is the whole issue of doing things contrary to established laws and legal principles. One of them being innocent, until PROVEN guilty.

Well.... I'm all for some form of codified due process, but I'm not so sanguine
that clear & present danger/exigent circumstances justify -- don't-be-an idiot --
removal of weapons.
https://www.nbcnews.com/news/crime-c...ve-it-n1269234

xin loi.....







(The devil being in the details, nonetheless....)

[Doc Intrepid]

The lack of due process following an allegation against any US citizen has been described - the Red Flag Law process requiring firearms to be surrendered first assumes guilt until proven innocent.

In addition, two of the more egregious problems in the matter of Red Flag Laws are (depending on state) the broad range of individuals who can allege "dangerousness"; and the fact that whether the danger alleged is "clear and present" can depend significantly on the subjective paradigm of the accuser.

In the state of Washington "Who Can Request the Order?" has been defined as a:

• person related by blood, marriage, or adoption to the respondent;
• dating partner of the respondent;
• 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;
• person who resides or has resided with the respondent within the past year;
• person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren, or;
• person who is acting or has acted as the respondent's legal guardian.

https://www.seattle.gov/police/need-help/erpo

That is an extraordinarily broad array of individuals who could disagree with someone, or who could decide their behavior represents a concern, and who could register their concern with the State. A 'legal parent-child relationship' would include your spouse's parents. Mother-In-Law humor aside, how many reading this have ever politically disagreed with their In-Laws?

It isn't difficult to conceive of ways Red Flag laws could be misused by someone who carries a grudge or otherwise wishes to register disapproval or other malevolent intent.

The second bullet includes "all dating partners". How many reading this have ever broken up with a dating partner who may well have borne a grudge?

There is no exemption or material defense against some malevolent person making a specious claim. (There are laws against lying to police, however, once the claim is made it remains within the system as de facto legitimate – requiring extraordinary efforts to remove it.)

Moreover, laws against 'malevolent accusations' only apply to deliberate lies. What if the person making the claim is not “lying” per se, but expressing a genuine if misguided concern based on their opposing political opinions and beliefs?

There are many opponents of gun rights who publicly express horror at the notion of American citizens owning “weapons of war”, and their concern regarding the ‘frightening desire’ of their fellow citizens to own such firearms. Consider Michael Moore or Shannon Watts. These gun control advocates use language describing “feeling terrorized” by American citizens owning such firearms.

Anyone sharing these opinions who expresses concerns about a relative who may own such firearms representing 'a clear and present danger' may in fact not be lying from their perspective. From the point of view of someone who views anyone who owns such firearms as psychologically troubled and prima facie “dangerous to the public”, their politically-based opinions are genuine.

There is no doubt that Red Flag Laws may allow legitimate concerns to be raised about risks to public safety. There is also no doubt IMHO that they potentially allow baseless allegations to be made that are intended to harass and disarm someone against whom they hold a grudge OR with whom they vehemently disagree politically.

The Respondent must surrender their firearms and must then prove that they are NOT dangerous to the community.

[Aguila Blanca]

Originally Posted by Doc Intrepid

It isn't difficult to conceive of ways Red Flag laws could be misused by someone who carries a grudge or otherwise wishes to register disapproval or other malevolent intent.

The second bullet includes "all dating partners". How many reading this have ever broken up with a dating partner who may well have borne a grudge?

There is no exemption or material defense against some malevolent person making a specious claim. (There are laws against lying to police, however, once the claim is made it remains within the system as de facto legitimate – requiring extraordinary efforts to remove it.)

Too true.

I don't have links, but there was a case a couple of years ago in which a police officer shot and killed a young man who charged the officer with a knife. Body cam footage showed clearly that the officer retreated probably 75 or 100 feet, constantly telling the kid to drop the knife, before the kid finally charged and the cop shot him.

So the bereaved mother proceeded to file a red flag complaint against the officer. I don't remember what state it was (Colorado, maybe?), but they had a shiny new red flag law, so mommy dearest used to. She claimed the officer was a threat to society, and in order to gain standing to file the complaint she lied and claimed that she had a child in common with the officer.

And it took well over a year before the state got around to charging her with perjury.

Found it. Here it is:

https://fox2now.com/news/mom-uses-re...d-her-son-tmw/

https://www.rallyforourrights.com/br...ng-on-youtube/

This article says the cop told the kid to put the knife down 36 times, and he retreated 113 feet before shooting:
https://collegian.com/2020/02/catego...rjury-charges/

And she's still scoffing at the law -- in general, not just the red flag law:
https://www.msn.com/en-us/news/crime...cer/ar-AAMWFNJ

[44 AMP]

I remember that case, in general. I don't know if her claim to having a "child in common" with the cop has yet been thrashed out in court, (is that claim the basis of her perjury charge??) but at the time the news made it public, it seemed that "child in common" was her opinion that since the cop shot her son, they had a "child in common" because of that.

I'm sure she believes that to be the case, but the rest of us think of it somewhat differently.

Thanks for the update, seems she isn't "playing nice" in the court system, still...

[Lima Oscar 7]

The Red Flag provisions are just the start of this legislative travesty. Read it. Any so-called Republican who would vote for it is a fraud. None of us or our rights are safe with these cowards.

[mehavey]

Originally Posted by LO7

Read it....

I read it.
Tell me exactly what you think it said.

[Lima Oscar 7]

It’s best that I don’t. To do so will create trouble here and get me sanctioned. The Defense Authorization act is an abomination on numerous levels.

[Aguila Blanca]

Originally Posted by Lima Oscar 7

It’s best that I don’t. To do so will create trouble here and get me sanctioned. The Defense Authorization act is an abomination on numerous levels.

We're not here to discuss the entire Defense Authorization Act -- that's outside the purview of this forum. If your comments don't pertain to the red flag provision, please take them to some other site.

[5whiskey]

Well.... I'm all for some form of codified due process, but I'm not so sanguine
that clear & present danger/exigent circumstances justify -- don't-be-an idiot --
removal of weapons.
https://www.nbcnews.com/news/crime-c...ve-it-n1269234

xin loi.....

That story is a tragedy mehavey. Megan Montgomery should be alive today. While I generally agree that there should be a process to restrain/disarm a person that poses a “clear and present danger under exigent circumstances,” I believe that process should follow probable cause and the person should be held in custody in addition to taking their firearms away. If a state is to pass a law stating that someone’s firearms can be taken without a hearing, go ahead and give them their full due process and take them before a judge or magistrate to be confined. Seriously I’m not joking. If there is that great of a chance that a person is so dangerous they should be disarmed, it’s not a great leap to say that they should be confined for their own good and the good of society. This usually requires that an overt act has been committed. I’m ok with that being an absolute minimum threshold. Anything other than that, and we’re playing minority report. Almost every state has numerous laws prohibiting domestic violence. These laws vary from communicating threats, to stalking, to assaults. Break one these laws, and you should see a judge. Which is a great time to have a hearing about removing guns from the offender.

Also, that article isn’t a great example of why we need red flag laws. It’s a much better example of why states, law enforcement, judges, and other participants in the criminal justice system should follow existing federal and state laws. The suspect there should be a prohibited person in that he had an active restraining order. He was prohibited under both federal and Alabama laws. There were other laws that could have disarmed him. That article does smack of cops that were protecting a fellow cop though. Which is disturbing. And I’m a cop.

[Aguila Blanca]

Several years ago, in Connecticut, a state trooper who was going through a divorce ambushed his wife and her attorney as they arrived at the courthouse for the divorce hearing. I don't recall details, unfortunately. I think he was under a restraining order, but I'm not certain. I remember that the wife's attorney (a woman) was seriously wounded but survived. If I remember correctly, I believe the wife was killed.

There was another incident in which a man going through a divorce (or maybe it had been granted) had been barred from possessing firearms, but he got one anyway, and he ambushed and killed his ex-wife while she was attending a concert on the town green.

These red flag laws are a joke. I agree with those who argue that if you can't be trusted to possess a firearm, you shouldn't be allowed on the streets.