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Old April 14, 2019, 10:08 AM   #1
PhotonGuy
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Colorado Enacts Red Flag Law

Colorado is now the latest state to enact red flag laws that allows guns to be seized without due process.
https://www.foxnews.com/politics/she...emed-dangerous
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Old April 14, 2019, 02:27 PM   #2
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Interesting that the Attorney General of Colorado stated, in the article, that LEOs who weren't willing to enforce the law should resign. But it's not that he, as the Attorney General is stating an opinion that LEOs should evenly enforce all laws on the books--this is the same person (Phil Weiser) who spoke out in favor of intentionally failing to enforce immigration laws.
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Old April 14, 2019, 02:54 PM   #3
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The AG saying that sheriffs who won't enforce the law should resign is more than a little bit ironic. From the Colorado state constitution:

Quote:
Section 7. Security of person and property � searches � seizures � warrants. The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.
...
Section 13. Right to bear arms. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
Where was the AG in defending the state constitution (which he swore an oath to uphold when he took office) when this law was being debated? The state constitution should outweigh any statute or public act -- why isn't the AG commenting that enforcing the law is unconstitutional?
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Old April 14, 2019, 03:45 PM   #4
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I am unclear about some things, so, if I'm mistaken, please enlighten me..

I hear people saying the Red Flag laws allow guns to be seized without due process. Is that actually correct, or is it that the new laws reduce the amount of due process required??


Is it that all anyone need do is go to a clerk, pay a fee, sign a "sworn statement" and the judge will automatically order firearms seized? Is the person sworn against also "seized" (ordered held for observation - 72hr hold??) or are they left "free" only with their guns taken??
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Old April 14, 2019, 03:57 PM   #5
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They can't just be seized without any process at all, but the process required is much less restrictive than what would be required for a criminal conviction or involuntary commitment.

It might be more accurate to state that it significantly reduces the state's burden by redefining what "due process" means in terms of what is required for firearm seizure.

Firearms could be seized without even needing to arrest the person, let alone having to hold them for observation or charge them criminally.

As I understand it, the threshold for seizure is the state's being able to show by a preponderance of the evidence that there's a "red flag". The targeted citizen then has to show clear and convincing evidence that there is no threat before they can retrieve their property and regain their rights.
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Old April 14, 2019, 03:58 PM   #6
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So, what about the Police Officers and University Officials that knew ahead of time about the Aurora Movie Theater shooter, but failed to act. Are they being asked to resign? What about the Judge who ruled the VaTech shooter a danger, but then failed to assure his order was implemented? What about Air Force Officials who failed to report the Texas Church shooter to the national database?

Based on recent history it is difficult to imagine that the government will ever implement this fairly, but will simply use this to violate induvial Constitutional Rights.
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Old April 14, 2019, 06:12 PM   #7
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Is there any repercussion for someone that falsely accuses someone and firearms are confiscated ?
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Old April 14, 2019, 06:17 PM   #8
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Originally Posted by Old 454 View Post
Is there any repercussion for someone that falsely accuses someone and firearms are confiscated ?
none at all.

and, people get the government they deserve.
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Old April 14, 2019, 07:07 PM   #9
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Colorado use to be an excellent state, it has now become a one party state and that one party is turning it into a hot mess. I have seven more years here and can’t pack quick enough, the house will probably be put on the market furnished.
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Old April 14, 2019, 08:55 PM   #10
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Quote:
Originally Posted by 44_AMP
I hear people saying the Red Flag laws allow guns to be seized without due process. Is that actually correct, or is it that the new laws reduce the amount of due process required??
It depends on the state, and I have not read the Colorado version. As it was enacted in my state last year, there is no due process before the seizure. The complainant makes the claim, a warrant is issued by a judge without the defendant being present or having been notified, and the police come and seize the firearms. Any "due process" occurs only after the seizure, when the defendant has an opportunity to appear at a hearing and try to argue why his firearms should not have been taken away, and why they should be returned to him.

Quote:
Originally Posted by Old454
Is there any repercussion for someone that falsely accuses someone and firearms are confiscated ?
In my state, I believe the answer is "No." To reiterate, I have not read the Colorado law.
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Old April 14, 2019, 10:19 PM   #11
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Different places have different ways of defining it, but generally. deliberately making a false statement to the police is a crime.

I don't know if a complaint = a "sworn oath or affirmation" or not. Might in some places, might not in others. But the problem is the same, either way. As long as the (false)accuser steadfastly maintains that they believed the accused was a potential threat, what can the authorities do to them??


The other side of the coin is a problem as well. PROOVE you aren't a threat...HOW???

Proving a negative is one of the most difficult of arguments. In today's social climate, it seems if you've ever had hard words with anyone over anything, you could find that used as justification that you are a potential threat. Are you a (formerly) armed time bomb, just waiting for the right combination of events to set you off? Prove you aren't!!

Suffering a GROSS injustice (having your guns seized, and as far as you know without any reason) I'd expect one would be more than just a bit "spun up". Just the effort to be calm and rational for court appearance would be considerable, I expect.
and your only defense is to prove something no one can prove?

If you can justify seizing firearms, because they are "dangerous" how can you ignore all the other dangerous things available? A can of gasoline, hardware store chains, padlock, and some matches can kill a lot of people. Cars can run people down..etc. It is the person who is dangerous, without them their possessions do nothing. If the threat is real, seize THE PERSON, doing anything less does not provide safety. .
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Old April 14, 2019, 10:53 PM   #12
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Here are some links to news articles about red flag laws and gun seizures resulting from those laws:

https://www.baltimoresun.com/news/ma...114-story.html

https://www.boston25news.com/news/ma...hts-/922298591

https://everytownresearch.org/red-flag-laws/

Articles that report documented results are few and far between. If anybody finds other sources it might be informative to provide links. I'm curious what these laws have actually accomplished, if anything.
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Old April 15, 2019, 01:13 AM   #13
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Quote:
Originally Posted by 44_AMP
I don't know if a complaint = a "sworn oath or affirmation" or not. Might in some places, might not in others. But the problem is the same, either way. As long as the (false)accuser steadfastly maintains that they believed the accused was a potential threat, what can the authorities do to them??

The other side of the coin is a problem as well. PROOVE you aren't a threat...HOW???

Proving a negative is one of the most difficult of arguments. In today's social climate, it seems if you've ever had hard words with anyone over anything, you could find that used as justification that you are a potential threat. Are you a (formerly) armed time bomb, just waiting for the right combination of events to set you off? Prove you aren't!!
And it's made worse when the burden of proof for the defendant is set higher than the burden of proof (or perhaps we should say "burden of unproven allegation") for the person making the complaint. It's a very uneven playing field.

I'm a senior citizen and a widower. Seeing these "red flag laws" and similar legislation enacted where it's so easy for someone with a grudge to make unfounded complaints, and so nearly impossible to defend yourself against such claims ... I keep thinking that I'm glad I'm not young enough to be dating, because you almost have to be crazy to risk having a relationship (or worse, a one night stand) go bad and see yourself on the receiving end of one of these orders.

Thanks, but no thanks.
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Old April 15, 2019, 08:01 AM   #14
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Quote:
Originally Posted by JohnKSa

As I understand it, the threshold for seizure is the state's being able to show by a preponderance of the evidence that there's a "red flag". The targeted citizen then has to show clear and convincing evidence that there is no threat before they can retrieve their property and regain their rights.
The problem is that where the defendant is not present at the hearing, any evidence, no matter how flimsy or unrelated to reality, categorically will be a preponderance of the evidence unless the petitioner volunteers evidence that would undermine his petition.

The problem isn't so much that these statutes redefine due process as that they ignore it. Removal of a civil right is ordinarily part of a criminal sanction. But due process in a criminal matter involves a defendant present and able to face an accuser he can cross examine.

Without the procedural protections afforded criminal defendants, these laws impose a sentence without trial. That's not consistent with our notions of due process.

Three weeks ago, a man files a petition to have his nephews arms seized alleging that the petitioner feared for his life. The judge isn't supposed to oppose a motion, but needed to ask more questions in order to grant or deny. The petitioner's testimony was that the nephews had accused him of stealing money, that his nephews carried guns, and that they sometimes put their hands in their pockets in conversation. The restraining order was denied. and hearing on the petition set last week. Service wasn't good on either nephew, but one of them showed at hearing. He was a municipal PO. The petitioner had decided to use this mechanism to have his nephew removed from his employment as a PO.

These laws serve no good end. As petitioners become more adept at exploiting the unbalanced nature of these laws, the abuse will become more common.
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Old April 15, 2019, 09:19 AM   #15
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Quote:
Originally Posted by 44 AMP View Post
I am unclear about some things, so, if I'm mistaken, please enlighten me..

I hear people saying the Red Flag laws allow guns to be seized without due process. Is that actually correct, or is it that the new laws reduce the amount of due process required??


Is it that all anyone need do is go to a clerk, pay a fee, sign a "sworn statement" and the judge will automatically order firearms seized? Is the person sworn against also "seized" (ordered held for observation - 72hr hold??) or are they left "free" only with their guns taken??
Seems some confusion about this law(and yes, I live in CO).
Quote:
In most ways, the red flag bill being introduced in Colorado is similar to those that other states have approved. But there are some key differences in how law enforcement would carry out seizing a weapon and how the due-process rights would be handled for someone whose weapons are taken.

Here is how the policy is designed to work: A family member or law enforcement officer would petition a court to request the ability to immediately seize a person’s guns. If a judge signs the order, the weapons can be taken away and the court must hold a hearing within 14 days to determine whether to extend the seizure and bar the person from purchasing more firearms. The longest a judge could order the seizure of firearms is 364 days. The entire process is a civil, not criminal, proceeding.

For the initial seizure order to be granted a judge must find there is a preponderance of the evidence showing that the person in question is a significant risk to either themselves or other. For the longer seizure, there has to be clear and convincing evidence.
Quote:
The most notable difference between Colorado’s proposed law and what other states have implemented: The measure mandates that a lawyer be provided to the gun owner at the first hearing on whether a seizure order should be extended. The sponsors also want to provide the gun owner a longer period to be able to petition the court to re-examine their case, as other states have done.

Garnett and Sullivan hope that those two elements serve as ample due process protections — a major concern for Republican lawmakers pushing back against the red flag concept. A false or malicious effort to have someone’s guns seized, under the bill, would be subject to criminal prosecution.
Just quoting an article, making no statements about this law..I would have liked to see the 'person' who is subject to this seizure present from the first step tho..
Quote:
Colorado use to be an excellent state, it has now become a one party state and that one party is turning it into a hot mess
Quote:
There are strong signs Coloradans favor the policy. For instance, a new poll of registered Republican voters in Colorado released Thursday by GOP pollster Magellan Strategies shows that 60 percent support “allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.”
Quote:
Additionally, the Giffords organization released a poll from Colorado’s Keating Research in December showing nearly 80 percent of active voters surveyed were supportive of a red flag law.
I know, a 'poll' but even tho it was passed w/o a single GOP vote, not sure it's opposed by the numbers stated.

https://coloradosun.com/2019/02/14/c...lag-bill-2019/
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Old April 15, 2019, 09:48 AM   #16
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Quote:
Originally Posted by USNRet93
Quote:
….“allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.”
I know, a 'poll' but even tho it was passed w/o a single GOP vote, not sure it's opposed by the numbers stated.
This illustrates how polling is both irrelevant and pernicious. The polling question doesn't accurately describe the law. The law doesn't "allow" a judge to "take a gun from someone who is determined to be a significant risk to themselves or other". The law requires a court to strip an individuals of his rights and surrender all his guns without any determination that the respondent is a "significant risk".

How many of those poll respondents knew that the interrogator had misled them?
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Old April 15, 2019, 09:58 AM   #17
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Quote:
Originally Posted by zukiphile View Post
This illustrates how polling is both irrelevant and pernicious. The polling question doesn't accurately describe the law. The law doesn't "allow" a judge to "take a gun from someone who is determined to be a significant risk to themselves or other". The law requires a court to strip an individuals of his rights and surrender all his guns without any determination that the respondent is a "significant risk".

How many of those poll respondents knew that the interrogator had misled them?
Like any poll on any subject from any organization, left, right or center, probably very little..

MY point, and anecdotal only, I think many(most) in Colorado would have liked to see people like
-Dunlap-1993
-Harris-1999
-Klebold-1999
-Morrison-2006
-Holmes-2012
-Dear-2015

Stopped..all were later identified as 'problems'..

Why not include the 'person of interest' up front when this process is started?

In this day and age of lotsa info available on anything or ANYBODY, is there any law, program, plan, idea that 'may' prevent some identified wacko from getting his (put type of weapon here) and creating mayhem? Or is the mayhem the 'price we pay'?

Just asking counselor, not arguing...I worry EVERYDAY about by 6yo and 8YO grandkids when they are in school...
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Old April 15, 2019, 10:31 AM   #18
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Quote:
Originally Posted by USNRet93
Like any poll on any subject from any organization, left, right or center, probably very little..

MY point, and anecdotal only, I think many(most) in Colorado would have liked to see people like
-Dunlap-1993
-Harris-1999
-Klebold-1999
-Morrison-2006
-Holmes-2012
-Dear-2015

Stopped...
I dispute that. Which of these people were probated before committing murder? "Should Klebold have been stopped before killing people?" isn't a sensible question where we lack the ability to predict the notorious act.

That locking up people who might be dangerous is a popular idea amongst people who don't understand the issues involved isn't an argument in favor of such a law.

Quote:
Originally Posted by USNRet93
L...all were later identified as 'problems'...
Exactly. If I wait until a killer kills, I can identify them with precision. That doesn't make me Carnak the Magnificent; that precision is only available in hindsight.

Quote:
Originally Posted by USNRet93

Why not include the 'person of interest' up front when this process is started?
Because that would give them due process, and the point of these laws is to sidestep procedural protections.

Quote:
Originally Posted by USNRet93
In this day and age of lotsa info available on anything or ANYBODY, is there any law, program, plan, idea that 'may' prevent some identified wacko from getting his (put type of weapon here) and creating mayhem?
Yes, and it was around long before either of us were born. "Wackos" are not a new problem.
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Old April 15, 2019, 10:35 AM   #19
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Quote:
Because that would give them due process, and the point of these laws is to sidestep procedural protections.
Why sidestep them then? What do the authors of this plan wish to achieve by "sidestepping procedural protections"? If these were NOT sidestpeed, there 'may' have been GOP support.
Quote:
In this day and age of lotsa info available on anything or ANYBODY, is there any law, program, plan, idea that 'may' prevent some identified wacko from getting his (put type of weapon here) and creating mayhem?
Any ideas? I would be a shame if the death toll is the 'price we pay'..
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Old April 15, 2019, 10:48 AM   #20
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The problem is that where the defendant is not present at the hearing, any evidence, no matter how flimsy or unrelated to reality, categorically will be a preponderance of the evidence unless the petitioner volunteers evidence that would undermine his petition.
So my question, and a very important one, is what standard of proof is used at the final disposition hearing? I understand the reaction against having your firearms seized because of an order that was issued during a hearing that you weren't privy to. I'm not a fan of that either, don't get me wrong. But going past that... when you do get your after-the-fact "due process" what is the standard used to make the ruling as to whether your property is returned to you or kept in custody of the state? Surely it could not be the low standard of "Greater Preponderance." I would guess "Clear and Convincing" would likely be used, but I am asking the attorneys here as I don't know the answer. Even then, when restricting a constitutional right I don't have a warm and fuzzy with any standard of proof other than beyond a reasonable doubt.


EDIT: question was answered while I was hemming and hawing on it. Not that I have any stake in this as I am not a CO resident, but this is a great injustice because of the bold text below. Restricting a constitutional right under any standard other than beyond reasonable doubt is injust, in my layman opinion.

Quote:
For the initial seizure order to be granted a judge must find there is a preponderance of the evidence showing that the person in question is a significant risk to either themselves or other. For the longer seizure, there has to be clear and convincing evidence.
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Old April 15, 2019, 10:51 AM   #21
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Quote:
Originally Posted by USNRet93
Quote:
Because that would give them due process, and the point of these laws is to sidestep procedural protections.
Why sidestep them then? What do the authors of this plan wish to achieve by "sidestepping procedural protections"?
They want a process for people who've committed no crime, but who someone wants to legally disqualify from having the means to defend himself. In our system, that isn't conventionally possible.

The lack of due process isn't a problem with Red Flag laws. It's the point.

Quote:
Originally Posted by USNRet93
Quote:
In this day and age of lotsa info available on anything or ANYBODY, is there any law, program, plan, idea that 'may' prevent some identified wacko from getting his (put type of weapon here) and creating mayhem?
Any ideas? I would be a shame if the death toll is the 'price we pay'..
Let's define who is a "wacko". Is he threatening someone? Is he living in a manner that suggests he cannot care for himself? Is he acting like a loon?

In my state, a social worker can initiate the process by which a guardian is appointed and the "wacko" becomes his ward. If he is found to be incompetent, the ward loses several rights, including the right to have a firearm.

My guess is that every state has some sort of similar process. Do you know of any that don't?
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Old April 15, 2019, 10:56 AM   #22
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Quote:
Originally Posted by USNRet93
Quote:
The most notable difference between Colorado’s proposed law and what other states have implemented: The measure mandates that a lawyer be provided to the gun owner at the first hearing on whether a seizure order should be extended. The sponsors also want to provide the gun owner a longer period to be able to petition the court to re-examine their case, as other states have done.
The problem is that this isn't the first hearing -- it's the first hearing after the seizure. In other words, it's the second hearing. The first hearing is conducted without the defendant being present, being afforded an opportunity to be present, without the defendant being informed of the complaint against him (or her, but these laws will almost certainly be used against males far more often than against females) or allowed an opportunity to confront or to cross-examine his/her accuser. That does not strike me as being commensurate with what we generally consider to be due process, but the proponents of these laws have adopted the mantra that because the accused gets a hearing within two weeks after the fact, due process has been preserved.

Quote:
Originally Posted by USNRet93
Quote:
There are strong signs Coloradans favor the policy. For instance, a new poll of registered Republican voters in Colorado released Thursday by GOP pollster Magellan Strategies shows that 60 percent support “allowing a judge to temporarily take a gun from someone who is determined to be a significant risk to themselves or others, based on evidence presented to a judge.”
But who made up the poll, and who conducted the poll? Were the people who said they favor the new law informed that the judge's order would be issued without the accused having been informed of the complaint or allowed an opportunity to confront his/her accuser? That's supposed to be a bedrock principle of our legal system but, once GUNZ! are involved, such formerly bedrock principles seem to be sacrificed to the mantra of "If it saves just one life ..."
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Old April 15, 2019, 10:59 AM   #23
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Quote:
Originally Posted by 5Whiskey
So my question, and a very important one, is what standard of proof is used at the final disposition hearing?
At the real hearing, the one held at the two week mark, it's clear and convincing.

Quote:
UPON HEARING THE MATTER, IF THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE, BASED ON THE EVIDENCE PRESENTED PURSUANT TO SUBSECTION (3) OF THIS SECTION , THAT THE RESPONDENT POSES A SIGNIFICANT RISK OF CAUSING PERSONAL INJURY TO SELF OR OTHERS BY HAVING IN HIS OR HER CUSTODY OR CONTROL A FIREARM OR BY PURCHASING, POSSESSING, OR RECEIVING A FIREARM, THE COURT SHALL ISSUE AN EXTREME RISK PROTECTION ORDER FOR A PERIOD OF THREE HUNDRED SIXTY-FOUR DAYS.
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Old April 15, 2019, 11:14 AM   #24
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If we combine information from posts #5, #14, and #23, we can summarize the crux of the issue. It's a two-part issue:

First is that the first hearing is conducted without affording the accused any opportunity to rebut the charges or to confront the accuser. In short, it's a kangaroo court. At that kangaroo court, the burden of proof is a "preponderance of evidence" on the part of the accuser, with no mechanism for any contradictory evidence to be submitted to the court. That's an exceptionally low burden when we consider that the result of the hearing may be to revoke someone's constitutional right.

Secondly, at the follow-up hearing, the first opportunity for the accused to defend him/herself, the burden of proof is raised to "clear and convincing evidence" -- on the part of the accused. It doesn't require that the accuser now offer clear and convincing evidence in order for the seizure to be upheld,** it requires that the accused must offer clear and convincing evidence to counter a charge that required only "a preponderance of evidence." It's bad enough that the accused has to prove a negative. It's orders of magnitude worse when the burden of proof for the negative is a higher burden than the burden for the accuser when the complaint was lodged.

As zukiphile has commented, it appears that the entire process has been devised specifically and intentionally as a way to bypass what has heretofore been one of the most fundamental principles of our legal system.


** [Edit] See post #26. Zukiphile has pointed out to me that I overlooked the fact that at the first "real" (bi-lateral) hearing the accuser must make his/her case to the higher "clear and convincing" level in order for the emergency order to remain in force.. This is marginally less bad than I had originally thought, but still far from benign or good.
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Old April 15, 2019, 11:50 AM   #25
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We got a phone call stating that you murdered JonBenet Ramsey. We need you to prove you did not or we are arresting you and charging you with murder.

Is this what it is coming to?
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