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Old April 15, 2019, 11:55 AM   #26
zukiphile
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Quote:
Originally Posted by AB
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's the other way around.

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.
It's the petitioner who still needs to prove the significant risk, but now by clear and convincing evidence.

I don't see the second hearing as the same sort of travesty the first is, but it still isn't appropriate for two reasons.

1. The subject of the hearing isn't actually whether the person has committed an act that violates a criminal prohibition, but whether the judge doesn't like what he is hearing about the respondent and limits his own risk by granting the one year order stripping the respondent of his rights. This is almost Minority Report style forecasting.

2. What is essentially a criminal sanction is imposed on the basis of clear and convincing evidence, rather than evidence of guilt beyond a reasonable doubt.

Beyond a reasonable doubt is supposed to be the more difficult standard, yet we know that criminal defendants are convicted of acts they didn't commit in very serious matters.
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Old April 15, 2019, 12:01 PM   #27
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Quote:
Originally Posted by sigarms228
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?
It's queerer than that. JBR's mother filed a petition that she is afraid you will hurt someone, but not that you have. We are taking your guns today, and we'll talk to you about it in two weeks.

If you read the last half of post #14, you will see that a police officer would have had an order prohibiting him from carrying, but for a judge who thinks these laws are dangerous.

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Old April 15, 2019, 12:41 PM   #28
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Originally Posted by zukiphile View Post
It's queerer than that. JBR's mother filed a petition that she is afraid you will hurt someone, but not that you have. We are taking your guns today, and we'll talk to you about it in two weeks.

If you read the last half of post #14, you will see that a police officer would have had an order prohibiting him from carrying, but for a judge who thinks these laws are dangerous.
Yes I read that and thanks for posting of actual experience of abuse of such laws. There can be several motives for abusing such when it is so easy to do including envy, revenge, and extortion. Someone even mentioned somewhere that it could be used to intentionally disarm someone to make them vulnerable for robbery/home invasion.
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Old April 15, 2019, 01:20 PM   #29
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I don't see the second hearing as the same sort of travesty the first is, but it still isn't appropriate for two reasons.
I actually see it as a greater travesty because of the long-term, much more permanent nature of your rights restriction on the basis of this...

Quote:
What is essentially a criminal sanction is imposed on the basis of clear and convincing evidence, rather than evidence of guilt beyond a reasonable doubt.
And then there is this...

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As petitioners become more adept at exploiting the unbalanced nature of these laws, the abuse will become more common.
Zukiphile posted a good example in Post 14. I have an example of something similar, though it isn't of the crop of current "red flag" laws. In my state an abused spouse can obtain a domestic violence protection order which bars the subject of the order from possessing firearms. It has a similar ex parte hearing as the red flag laws, with a due process hearing to follow within 14 days. After a judge grants the initial order, for 2 weeks, it is served on the subject and his firearms are seized by the Sheriff Deputy serving the order. While conducting a background investigation on a new-hire a few years ago, I learned that his wife had taken out one of these protection orders out on the new-hire years ago. Upon speaking with his wife (they are still together, this happened during a rocky patch in their marriage years ago), she basically admitted that she went to a non-profit domestic violence advocate and was coached on what to say to have a protection order. The reason why SHE wanted the order? He wanted to see his kids for the weekend and he told her on the phone he would show up to see them because she can't keep them from him. The reason why she was TOLD TO SAY that she wanted the order? He had made aggressive statements and insisted that he would show up at their house and she was afraid he may be violent.

He was never subject to the full 1-year order. She spoke with a divorce attorney on the matter and during the consult he questioned her and read the affidavit prepared for the ex parte hearing, advising her that it would be in her best interest to not testify to that document after she told him the whole story. The temporary protective order expired, the man got his firearms back, and they eventually reconciled and have been married many years since. He was also hired, but a great deal of explaining was needed over that issue.
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Old April 15, 2019, 01:47 PM   #30
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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 ..."
BUT, that same sort of thing happens every time a woman calls the police and says that her boyfriend beat the snot outta her. The boyfriend, w/o being informed of the complaint nor confronting his 'accuser', is arrested. And yes, he is told why he is being arrested. The same way a person would be informed why their weapons are being confiscated.
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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.
The above happens everyday..BTW-in court, the prosecutor has to prove that I DID, I don't have to prove I didn't.
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Old April 15, 2019, 01:51 PM   #31
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Quote:
Originally Posted by 5Whiskey
...she basically admitted that she went to a non-profit domestic violence advocate and was coached on what to say to have a protection order.
I've seen this too.

The answer comes in response to a question from the judge, "What made you think you should file this?" and the petitioner answers along the lines of "I went to Poverty Advocates "r" Us and they said if I want an order I should say X, Y and Z."

It's disheartening. There's a courtroom of people dealing honestly and playing their roles. The petitioner doesn't intend to abuse the process, but presented his problem to some social service organization, who now isn't in the courtroom, but got the petitioner out of their offices by offering him the wrong solution.

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Old April 15, 2019, 03:21 PM   #32
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Originally Posted by USNRet93
The above happens everyday..BTW-in court, the prosecutor has to prove that I DID, I don't have to prove I didn't.
And that's the problem with this (and other) red flag laws. The way these laws are written, not only does the accused have to prove he didn't -- he doesn't even get an opportunity to try to prove the negative until two weeks AFTER the so-called "emergency" order has been issued and his guns have already been taken away from him.
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Old April 16, 2019, 12:11 AM   #33
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I'm am wondering, how do they actually take your guns???

I mean, do they toss your house looking every place a Ruger LCP could be concealed? That would take a lot of officers' time and leave your place a mess.

Would we be talking about all the drawers out of all the dressers and cabinets, all the cloths out of the closets, all the air vents removed etc. etc. etc.
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Old April 16, 2019, 12:44 AM   #34
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California has had this law for a while and here's how it's working out for them.

(Spoiler alert---not well.)

Quote:
[California] set aside $24 million for seizure programs, had a goal of confiscating around 20,000 guns over three years. But six years later, according to a San Francisco Chronicle report, there are still roughly 9,000 of those guns out there, with more being added to the list yearly.
https://www.thetruthaboutguns.com/20...inues-to-grow/
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Old April 16, 2019, 12:48 AM   #35
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I mean, do they toss your house looking every place
They might. They can trash your place, even cut open your safe, take your stuff and walk off with it. They have a court order allowing them to do it!

Don't like it? Go to court!!

Sad, but its the system we have...
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Old April 16, 2019, 09:10 AM   #36
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Quote:
Originally Posted by DaleA
I'm am wondering, how do they actually take your guns???

I mean, do they toss your house looking every place a Ruger LCP could be concealed? That would take a lot of officers' time and leave your place a mess.

Would we be talking about all the drawers out of all the dressers and cabinets, all the cloths out of the closets, all the air vents removed etc. etc. etc.
I'm going to guess (I'm not a PO) that it depends what they find when they walk up to the door and knock.

If they see you inside and you yell through your door that they'll never take you alive, it's going to get exciting for everyone.

If you answer the door and look and speak like a normal human being, accept service and say something like "Good evening, gentlemen. What did my ex-wife say I did now?", they may make themselves feel safe, then ask you where you guns are so they can take them. If you look like Ted Kaczynski's mug shot, they may search your cabin for obvious hiding spots.

Between the extremes, there maybe POs who would maneuver you into a disorderly conduct arrest.
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Old April 16, 2019, 10:58 AM   #37
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I have experienced a family situation about 8 years ago in NC.

There was a means to stop a potential threat.

He made several threats in anger and no one knew if he would or could follow thru.
I finally removed the firing pin from his weapons and felt a bit better until he decided to trade one in. So that didn't last long.

It took 3 people in front of a judge to ask for help. The police arrived soon after and escorted the man peacefully to a facility for a 72 hour evaluation.

In his early 80's, he was diagnosed with Dementia among other things. He failed every test and no one was harmed and he got the care he earlier refused.

We have a mechanism already that seems to work. Not just one person but 3 facing a judge seems less likely to be abused. Not impossible but not every X or angry neighbor will find 2 others to join in their madness.

So, I agree that these red flag laws are not a help to us but rather a means for gov't to bypass civil rights.
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Old April 16, 2019, 11:02 AM   #38
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Originally Posted by zukiphile
I'm going to guess (I'm not a PO) that it depends what they find when they walk up to the door and knock.
It may also depend on whether you live in a state that has registration. In New York state, for example, any handguns must be listed on your permit, and if I'm not mistaken you can't own a handgun in New York State without a permit. So you can assume that the officer(s) will arrive already knowing what handguns they're supposed to seize, so they better find them all or things may get more interesting. I don't know about New York and long guns.

In my state, as long as I have been buying firearms all handgun sales/purchases had to approved by the State Police, and each sale requires a 4-part form in addition to the federal 4473. One copy of the form stays with the seller, one copy goes to the buyer, one copy goes to the State Police, and the last copy goes to the local police department in the buyer's city of residence. Since Sandy Hook the law has been revised so that this process now applies also to long guns but, prior to Sandy Hook, private sales of long guns were allowed without the state permission call and subsequent report. So my local PD has a partial inventory of what firearms I own. They know about all my handguns, but I think I have only purchased one long gun (a .22 Magnum rifle) since Sandy Hook. So they're going to know what handguns they're looking for, but how they approach determining how hard to search for long guns would probably depend on a variety of factors.

Pennsylvania is another state that has a system for reporting some gun sales (I think only those sales that are made by FFLs, but I'm not certain about that). Some police departments regard the sales database as a "registration," although the Pennsylvania courts have ruled that it isn't a database because it isn't complete. That said, I think we can probably be sure that if faced with a court order, any police department would start by looking to see if the subject of the order has any firearms listed in the database.

How the implementation of these laws plays out is one of those things that I think the pro-RKBA advocates are going to have to monitor.
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Old April 16, 2019, 12:24 PM   #39
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In some places, old records never die, but they aren't always kept "alive", let alone current.

I lived in New York State, until 1979. I had a pistol permit. Pistols were listed on the permit, by make, caliber, serial number, and barrel length!! (never did get what barrel length was useful for...)

Father's and Mother's pistols were all listed on all our permits. We did this after an auto accident in the mid 60s, when we learned an unpleasant truth.

If Dad had died, and no one else in the household had his pistol on their permit , then the guns would have to be surrendered to the state. The State police would hold them for 30 days, then destroy them, even if a permit was applied for. The Sherriff would hold them until the permit was either approved or denied. SO, everyone in the family got a permit, including us boys when we turned 18, will all Mom & Dad's pistols listed on them, so the state couldn't steal them in the event of a family tragedy.

But, old records never die, it seems. In or about 2001, I got a letter from Saratoga County. First, it informed me that, since I was no longer a NY resident, (apparently they just noticed me leaving the state in 1979) my permit was no longer valid. ok, fine, ...whatever..right?

BUT they also said they wanted it BACK! That's right, they wanted me to return the wallet sized, NON-laminated piece of paper (not even cardstock, but paper) that they issued back in 1975!

And to top it off, they wanted to know (I'd say "demanded" though the language was polite and contained no overt threat) they wanted to know where the pistols listed on my permit WERE!
My reply won't pass TFL language filters, so I won't quote it here, suffice to say "go pound sand" and "take a flying leap...." cover the jist of it in more polite fashion...

So, here's something to consider, if you live in a place where the State has a list (or partial list) and they order your guns seized, and give the police that list, how do you think they will act, and how "hard" will they search for a gun or three that you haven't owned for 20+ years, if the state list says you own it???

If you don't have immediately available (and acceptable) paperwork "proving" you don't have the gun any more, I doubt they'll take you at your word. If you have a really zealous enforcer(s), they could take your home (and every other property you own) apart, brick by brick, stone by stone looking, and not in a careful manner.

They aren't required to leave things in tidy order, in fact, they aren't required to leave things in a condition where they can be put back together, or even repaired. You could, literally, be left with a pile of rubble for a home, (and a car!!!) without restitution until a court rules you are entitled to compensation, which could be months. or even years. AND, even when you do get a check for your damages, it will be THEIR estimate, and may not cover all your costs...


its not a good thing. It should NOT be law, but until a court rules it invalid, it is the law we have to live under.
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Old April 16, 2019, 03:07 PM   #40
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^^^

But if it saves just ONE life ...
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Old April 16, 2019, 10:28 PM   #41
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Quote:
But if it saves just ONE life ...
AB I know your comment is tongue in cheek. But that is an argument we often hear by gun control advocates. To them we have an excellent counter-argument provided by none other than the fbi.

https://www.dailywire.com/news/30730...s-hank-berrien

How many lives have been saved by lawful, responsible, gun owners?
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Old April 17, 2019, 10:04 AM   #42
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First test of the 'red flag' law in Colorado?
As far as I can tell, she has broken no laws..although not sure how, as a non CO resident, she bought a shotgun in Littleton(CO)..

https://news.yahoo.com/colorado-auth...opstories.html
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Old April 17, 2019, 10:50 AM   #43
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First test of the 'red flag' law in Colorado?
Possibly.

Quote:
As far as I can tell, she has broken no laws..although not sure how, as a non CO resident, she bought a shotgun in Littleton(CO)..
You can legally purchase a long gun out of your home state so long as you abide by the laws of both states. It is probably increasingly rare for many gun shops to conduct ANY out of state sales as keeping track of the myriad of laws in other states is a daunting task.

I've also read several articles and all of them state that she has "made threats and was considered armed and extremely dangerous." Admittedly no article I've read had any specific details of what threats were made. If direct threats were made to a school, I would think that should be covered under law. It's a felony in my state to threaten mass violence on educational property. I would hope every other state had a similar law.
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Old April 17, 2019, 05:27 PM   #44
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Old April 17, 2019, 05:28 PM   #45
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Good land. My first (careless) reading of your post led me to believe this happened to you personally. Glad it did not. Still a VERY troubling situation.

I found the following interesting:
Quote:
The next week he was allowed to recover his property.
I just found out a few weeks ago that the St. Paul, Minnesota Police routinely held firearms for THREE YEARS if it was found the guns were NOT involved in any criminal activities. If they did have a criminal history then all bets were off.

Because of a law suit the St. Paul Minnesota Police will now only hold guns for six months.

https://www.twincities.com/2019/04/0...ning-firearms/
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Old April 17, 2019, 05:43 PM   #46
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I will not take part in such an order. I don't know how many other cops will stand up against this though.
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Old April 18, 2019, 07:58 AM   #47
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Originally Posted by 5whiskey View Post
Possibly.



You can legally purchase a long gun out of your home state so long as you abide by the laws of both states. It is probably increasingly rare for many gun shops to conduct ANY out of state sales as keeping track of the myriad of laws in other states is a daunting task.

I've also read several articles and all of them state that she has "made threats and was considered armed and extremely dangerous." Admittedly no article I've read had any specific details of what threats were made. If direct threats were made to a school, I would think that should be covered under law. It's a felony in my state to threaten mass violence on educational property. I would hope every other state had a similar law.
Florida law says 21 YO for all gun(and shotgun) purchases..she was 18YO BUT OBE, she was found with a 'self inflicted' wound, presumably a suicide.
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Old April 18, 2019, 10:42 AM   #48
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This 18 yr old would have been born 2 yrs after Columbine,but allegedly demonstrated a fascination with Columbine on social media. When she flew to Colorado for the 20th anniversary of the Columbine shootings and bought a shotgun,this time,for once,the ball did not get dropped.

But I don't see how this case has anything to do with the Red Flag law.


Unofficially,from radio,the best info I have:

She bought the shotgun and got an Uber ride ride to Mount Evans. Drones with thermal imaging found her,then indicated the threat was likely over that night.
She was found in the woods nude with an apparently self inflicted wound,deceased in the morning.

The State and media are trying to pose this sad story as some political victory.

Its just not,and IMO,only someone blinded by political ideology would present this death as a political victory. The Red Flag law accomplished nothing.

Now,consider the wisdom and politics of this. Approximately 1000 schools in the state were closed for the day,with parents given essentially no notice.
A half a million kids had no school to go to.

Essentially the State told all the parents and students "We and our SRO's are powerless to keep you safe from a 5 ft 5 in skinny 18 yr old girl with a shotgun. You are on your own"

Its a massive bunch of political and media BS.


Not a particularly interesting article,but it backs up my claim about 1000 schools and a half million kids.
https://www.9news.com/article/news/e...a-f1d5b1a13618

Last edited by HiBC; April 18, 2019 at 03:08 PM.
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Old April 18, 2019, 11:13 AM   #49
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Florida law says 21 YO for all gun(and shotgun) purchases..she was 18YO BUT OBE,
Ahh... you are correct. The FFL holder may get a "talking to" over that one.
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Old April 18, 2019, 11:38 AM   #50
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Please post a link to the text of the law. From what I have read in articles, many posts have the burden of proof backwards. Zukiphile appears to have it right. At the two week hearing, meaning the one at which the gun owner first has an opportunity to be heard, the burden of proof is on the person who petitioned for the seizure (the "Petitioner). The gun owner (the "Respondent") need not prove a thing. , but depending on the facts it would probably be smart to offer evidence to rebut the Petitioner's assertions. The continuing order is not to be granted unless the court finds by "clear and convincing" evidence that the accusations is true.
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