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Old April 18, 2019, 01:24 PM   #51
zukiphile
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https://leg.colorado.gov/bills/hb19-1177

I have trouble imagining what it would be like for a layman to figure out how this works from reading the text of the bill.

There's a scene in The Good, The Bad and The Ugly in which Eli Wallach makes a pistol from pieces and parts of the other pistols in the gun shop case; he uses existing components to get the product he wants. This law is like Tuco's pistol. The legislature built what they wanted from concepts familiar from other areas of law. It's easy to lose one's way in reading this thing if assimilating lots of new information.

The burden of proof is at all times in this process on the petitioner. Of course, if it's just the petitioner and the judge in the room, we expect the petitioner to carry that burden. If the respondent is in the room and doesn't say a word, does the Petitioner's evidence seem clear and convincing? It very well may, even if the petitioner's testimony is entirely erroneous. Unchallenged testimony can be clear and convincing evidence. Even in a criminal matter, one in which the burden of proof is beyond a reasonable doubt, the defense will challenge the state's witnesses.

The respondent has no burden of proof whatsoever. Yet apart from any legal argot, one who has been accused of being a danger to himself and others (crazy and dangerous) and unfit to possess arms has both an interest and a burden to show that the accusation is false.
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Old April 18, 2019, 03:01 PM   #52
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I'll have to dredge up my state's red flag law. I'm fairly certain that at the 2-week, post-seizure hearing here the burden of proof lies with the poor schmuck (or schmuckette) whose guns were taken away to show convincing evidence of why they (the guns) should be returned.
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Old April 18, 2019, 05:25 PM   #53
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Thanks zukiphile. I had that page but didn't see that I could get the actual text by clicking the button at the bottom.

The burden of proof is clearly on the Petitioner. The Respondent gun owner need not offer any evidence or even dispute the evidence offered by the Petitioner, but like zukiphile says that may be unwise.

I know the Colorado law is hard to swallow, but it better than the Red Flag law that California was considering but didn't pass. At your ex parte hearing the court has to find "probable cause" of the existence of a significant risk. The gun haters in California tried to enact one that allowed them to be seized if t merely a "reasonable suspicion" was found.
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Old April 18, 2019, 05:58 PM   #54
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Interesting that Illinois law has some specifics of what might be evidence of respondent being a danger to himself or others.

It is getting to the point where I am wanting to carry a voice recorder on
myself 24/7.

http://www.ilga.gov/legislation/publ...?Name=100-0607

Quote:
e) In determining whether to issue a firearms restraining
order under this Section, the court shall consider evidence
including, but not limited to, the following:
(1) The unlawful and reckless use, display, or
brandishing of a firearm by the respondent.
(2) The history of use, attempted use, or threatened
use of physical force by the respondent against another
person.
(3) Any prior arrest of the respondent for a felony
offense.
(4) Evidence of the abuse of controlled substances or
alcohol by the respondent.
(5) A recent threat of violence or act of violence by
the respondent directed toward himself, herself, or
another.
(6) A violation of an emergency order of protection
issued under Section 217 of the Illinois Domestic Violence
Act of 1986 or Section 112A-17 of the Code of Criminal
Procedure of 1963 or of an order of protection issued under
Section 214 of the Illinois Domestic Violence Act of 1986
or Section 112A-14 of the Code of Criminal Procedure of
1963.
(7) A pattern of violent acts or violent threats,
including, but not limited to, threats of violence or acts
of violence by the respondent directed toward himself,
herself, or another.
(f) At the hearing, the petitioner shall have the burden of
proving, by clear and convincing evidence, that the respondent
poses a significant danger of personal injury to himself,
herself, or another by having in his or her custody or control,
purchasing, possessing, or receiving a firearm.


Section 45. Termination and renewal.
(a) A person subject to a firearms restraining order issued
under this Act may submit one written request at any time
during the effective period of the order for a hearing to
terminate the order.
(1) The respondent shall have the burden of proving by
a preponderance of the evidence that the respondent does
not pose a danger of causing personal injury to himself,
herself, or another in the near future by having in his or
her custody or control, purchasing, possessing, or
receiving a firearm.
(2) If the court finds after the hearing that the
respondent has met his or her burden, the court shall
terminate the order.
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Old April 18, 2019, 09:35 PM   #55
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that seems pretty straightforward, and explained better than many statutes, HOWEVER

Quote:
(3) Any prior arrest of the respondent for a felony
offense.
THIS gives me heartburn. An arrest is not proof of anything other than the police arrested you. If the statute said "conviction" that would be different.

So, if you were arrested for felony stupid 25 years ago, and the case was dropped, you're still a risk today?? Seems like the kind of hole innocent people could fall into...
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Old April 18, 2019, 11:20 PM   #56
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Quote:
THIS gives me heartburn. An arrest is not proof of anything other than the police arrested you. If the statute said "conviction" that would be different.

So, if you were arrested for felony stupid 25 years ago, and the case was dropped, you're still a risk today?? Seems like the kind of hole innocent people could fall into...
"If it saves ONE life ..."
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Old April 19, 2019, 02:22 AM   #57
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How about
"if it COSTS one life...."
??????
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Old April 19, 2019, 10:57 AM   #58
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Quote:
Originally Posted by 44 AMP View Post
that seems pretty straightforward, and explained better than many statutes, HOWEVER



THIS gives me heartburn. An arrest is not proof of anything other than the police arrested you. If the statute said "conviction" that would be different.

So, if you were arrested for felony stupid 25 years ago, and the case was dropped, you're still a risk today?? Seems like the kind of hole innocent people could fall into...
Great point and one reason why one might want a lawyer with them for their day in court to hopefully prove they are not the threat that they were claimed to be.
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Old April 19, 2019, 11:00 AM   #59
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Quote:
Originally Posted by 44_AMP
How about
"if it COSTS one life...."
??????
The liberal, gun grabber attitude encompasses that as collateral damage. If it's a gun owner who gets killed when the SWAT team raids his home with a no-knock warrant at oh-dark-thirty and he gets killed because he thinks he's defending against a home invasion (which, of course, he is) ... well, he's just a redneck deplorable, so no great loss. If he hadn't owned all those icky GUNZ!, it wouldn't have happened.

If it's a police officer who gets killed serving an unnecessary and possibly unconstitutional order ... well, that's what cops get paid for, and he knew the risks when he signed up.

In their twisted minds, the gun grabbers have it all figured out.
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Old April 19, 2019, 12:48 PM   #60
dreaming
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The confusion as to who has the burden of proof may stem from confusing different hearings. The burden of proof indeed lies with the respondent to establish by clear and convincing that they no longer pose a significant risk in order to terminate a previously issued extreme risk protection order. However, the burden is on the petitioner at the hearing seeking issuance of the order.

Think of it this way.

Hearing 1 is ex parte. Petitioner has burden of proving probable cause for issuance of a temporary order.

Hearing 2. Petitioner has burden of proof by clear and convincing evidence for a one year order. [actually 364 days but who is counting]

Hearing 3. During the term of the order the respondent seeking to terminate the extreme risk protective order the burden shifts to the respondent to show by C&C evidence that they no longer pose a significant risk.

Renewal Hearings. Should the petitioner move to renew an expiring termination order, it will be renewed if there be C&C evidence of a continuing risk.
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Old April 19, 2019, 01:01 PM   #61
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Quote:
The confusion as to who has the burden of proof may stem from confusing different hearings. The burden of proof indeed lies with the respondent to establish by clear and convincing that they no longer pose a significant risk in order to terminate a previously issued extreme risk protection order. However, the burden is on the petitioner at the hearing seeking issuance of the order.
This seems to be the case for the Colorado law. The laws of other states may not be as clear, or may operate differently.
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Old April 19, 2019, 02:00 PM   #62
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Its a tough call. If a family member is legitimately threatened or their loved one threatens to harm themselves, it makes some sense that they should be able to get an order seizing firearms. I know of a woman who's estranged spouse followed her and her minor son in traffic, while he waived a shotgun at her. The woman didn't go to the police because she didn't think they would or could do anything. The woman may well have erred in thinking that the police would not act, but her husband was a buddy of their Chief of Police. A few days later, the man committed suicide.

The problem lays with the vindictive family member. They can sit back and build a strong clear and convincing case, while waiting to file for a temporary. Then you have only two weeks to put together a defense. If you are unable to win at the noticed hearing, then the burden of establishing that you are no longer a substantial risk by clear and convincing does shift to the gun owner.

Last edited by dreaming; April 19, 2019 at 02:15 PM.
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Old April 19, 2019, 02:05 PM   #63
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Quote:
Originally Posted by dreaming View Post
The confusion as to who has the burden of proof may stem from confusing different hearings. The burden of proof indeed lies with the respondent to establish by clear and convincing that they no longer pose a significant risk in order to terminate a previously issued extreme risk protection order. However, the burden is on the petitioner at the hearing seeking issuance of the order.

Think of it this way.

Hearing 1 is ex parte. Petitioner has burden of proving probable cause for issuance of a temporary order.

Hearing 2. Petitioner has burden of proof by clear and convincing evidence for a one year order. [actually 364 days but who is counting]

Hearing 3. During the term of the order the respondent seeking to terminate the extreme risk protective order the burden shifts to the respondent to show by C&C evidence that they no longer pose a significant risk.

Renewal Hearings. Should the petitioner move to renew an expiring termination order, it will be renewed if there be C&C evidence of a continuing risk.
it appears that to strip somebody of their property and rights takes MAYBE preponderance of evidence which is highly subjective and the respondent has no chance to refute the claims when they are made. yet the respondent seems to have to prove beyond reasonable doubt that they are not a risk in order to recover their property and rights, only after first loosing them.

its like having your vehicles seized by the state and your license taken away because somebody saw you buy some beer on the way home from work and they think that you are a potential drunk driver.....
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Old April 19, 2019, 02:09 PM   #64
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It does beg the question, how is a "threatened family member" safe if the guns are seized and the person who is the threat, isn't????

I don't see someone with a steak knife in their throat, or their head broken with a baseball bat or golf club being "better off" or "safer" because they weren't SHOT.

The threat is the PERSON, not the gun, the knife, the bat, or any other inanimate object.
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Old April 19, 2019, 02:23 PM   #65
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44 AMP: The gun grabbers are convinced that firearms greatly increase the likelihood that a person will resort to deadly violence (it is easy to pull a trigger and not as easy to defend against a gun attack as some others, such as a knife) and that if they do the results will be gravely serious and/or lethal.

More specifically to answer your begged question, where does anyone say that an extreme risk protection order will make you "safe"? I think the argument is that it will make you "safer". Obviously if you need to seek one there is a lot more you should be doing and even then you may still not be safe. Even if you move out of the home and fly across country to be safe, if you can afford to, that won't prevent some from gong after you. And then there is always the mail bomb.

Last edited by dreaming; April 19, 2019 at 02:30 PM.
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Old April 19, 2019, 02:52 PM   #66
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Yeah, it's a bumper crop of "everything reasonable" here in Colorado this session....
There's the usual political bs that gives me heartburn (like when the majority leader of the House fake-complained about the opposition of many sherrifs that "if the sheriffs had a problem, no one came to me to discuss it..."), but at the end of the day it's now law and it has to stand on (or dispite) its merits.
1. For being a bill designed to help people with mental health issues not hurt themselves, there is a glaring lack of medical input in the decision to take away Uncle Buck's guns. There's no doctor consult at all. Nor is there a requirement that Uncle Buck be given some evaluation afterwards or get some counseling or any sort of medical write-off that his situation is improved.
2. If you think that Uncle Buck is angry at the world and might be "on the edge," it seems like you are doing a color-by-numbers bad scenario by sending SWAT unannounced to his house to take away something.
3. I'm not a fan that Uncle Buck now has to prove to a judge (again, no doctors in the room) that he's fine. If Uncle Buck isn't already angry at the world/system/Santa Claus, then perhaps losing time at work and/or his job and/or a wad of cash working with lawyers to get back HIS stuff might just send him to that island we were all worrying about anyhow.

I'm not happy that many sheriff's are fighting this by boycott. I'd prefer a legal route, but I understand as it's going to be their deputies lining up outside Uncle Buck's door to do the dirty work.

I saw a letter in a local paper a few days ago praising the new law and declaring that Thomas Jefferson and Ben Franklin would have loved it. "No," I thought,"TJ and BF would have said 'if Uncle Jedediah Buck is a danger, YOU should go talk to him.'" This seems like one more family obligation that is thrown over the fence to a government that doesn't/can't care for your family members.

As the lowest common denominator, I would prefer that a law that is supposed to help society stop potential dangers by mentally disturbed people might actually provide help to those people. A red flag law that does nothing to remove the actual DANGER to society that has raised the "flag" seems disingenuous at least.

My 2 c. None of my gov't reps in Denver cares; I've checked.
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Old April 19, 2019, 02:57 PM   #67
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all this comes down to is what happens when you vote a certain way, or don't vote.
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Old April 19, 2019, 03:13 PM   #68
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Or are just plain outvoted by people with an agenda....
I think this is the future.
Colorado's reps also joined the vote compact to throw the state's electoral votes to whichever candidate wins the vote majority across the US, regardless of what the people of Colorado have voted. The trend seems to be to bow our neck to the coming supra-majority, who might or might not have anything in common with a mid-sized mountain state.
They say wisdom comes from making bad decisions. The optimist in me says: "We're setting ourselves up for historic levels of wise leadership."
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Old April 19, 2019, 03:39 PM   #69
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Quote:
Originally Posted by dreaming
Its a tough call. If a family member is legitimately threatened or their loved one threatens to harm themselves, it makes some sense that they should be able to get an order seizing firearms. I know of a woman who's estranged spouse followed her and her minor son in traffic, while he waived a shotgun at her. The woman didn't go to the police because she didn't think they would or could do anything. The woman may well have erred in thinking that the police would not act, but her husband was a buddy of their Chief of Police. A few days later, the man committed suicide.

The problem lays with the vindictive family member. They can sit back and build a strong clear and convincing case, while waiting to file for a temporary. Then you have only two weeks to put together a defense. If you are unable to win at the noticed hearing, then the burden of establishing that you are no longer a substantial risk by clear and convincing does shift to the gun owner.
I think the laws of most states already provide for protective (or "restraining") orders on request/application by family members. Initially, such orders required customary and proper due process. Then, a few years ago, states (including mine) began enacting ex parte protective orders, which allowed the order to be issued (and guns to be seized, if applicable) without notice to the defendant, with "due process" to follow after the fact of the order (and seizure). But these were still limited to family members and "domestic partners" insofar as who could file for the protective order.

These so-called "red flag" laws significantly expand the opportunities for injustice, because they now open it up for almost anyone to accuse a person of being a danger. Now the purported goal isn't to protect one person or one family, it's to protect the whole world.

It's an entirely different order of magnitude.
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Old April 19, 2019, 03:43 PM   #70
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Quote:
it appears that to strip somebody of their property and rights takes MAYBE preponderance of evidence which is highly subjective and the respondent has no chance to refute the claims when they are made. yet the respondent seems to have to prove beyond reasonable doubt that they are not a risk in order to recover their property and rights, only after first loosing them.

its like having your vehicles seized by the state and your license taken away because somebody saw you buy some beer on the way home from work and they think that you are a potential drunk driver.....
Where does the Red Flag law even use the "reasonable doubt" standard? As for all the standards of proof, albeit a preponderance, clear and convincing, or even beyond a reasonable doubt, they all are somewhat subjective.

So you think should the court issue the order, when a son testifies by affidavit under penalty of perjury that he watched his father load a .357 and then point it at his mother and heard the father then scream, "I ought to kill you right now", is like taking a license away because someone saw you buy beer? Isn't it more like losing your license because they saw you drinking beer and then driving wildly all over the road at crazy rates of speed?
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Old April 19, 2019, 04:02 PM   #71
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Aguila Blanca, True there is a big difference as far as due process when seizure can be made on the basis of an ex parte application instead of a noticed hearing. I tend to think that something like a red flag law is needed, but that the standard for ex parte seizure should be higher than a preponderance of the evidence. It is just too easy to meet the burden when the application is unopposed.

I don't know how to satisfy the need to protect a truly threatened person by raising the standard of proof at the ex part to a clear and convincing standard, but perhaps keeping with preponderance of the evidence, while requiring a state appointed attorney to be appointed to challenge the ex parte petition and require that there be a hearing. Without a hearing it is too easy for an attorney to craft a declaration and the Court, as well as the ombudsman I propose, are deprived of the opportunity to weigh the demeanor of the Petitioner and their witnesses, or to cross examine them.
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Old April 19, 2019, 08:09 PM   #72
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Quote:
I saw a letter in a local paper a few days ago praising the new law and declaring that Thomas Jefferson and Ben Franklin would have loved it.
Which just further proves that the paper will print anything....

I think you're right, I rather doubt that Franklin and Jefferson or any other of the people who were involved and responsible to putting words in the Constitution like "the people shall be secure in their persons, properties and papers" and "no warrant shall be issued but on oath or affirmation,...specifically describing the property to be seized" and a few other phrases, to specifically LIMIT government power, would be supportive of Red Flag laws.

There is a system in place, and has been for over half a century to suspend firearm ownership rights for people adjudicated incompetent or a danger to themselves or others. It is cumbersome, DELIBERATELY so, so that it protects the rights of the accused, at every stage, until a final decision is reached. It is a Judge that makes that decision, but there will be advice sought from medical professionals, as well as the accused having the opportunity to have legal representation.

Red Flag laws, are short cutting this process, depriving people of the previous due process, and claiming the urgency of risk justifies it, based on how well someone seems scared when they make their request for "red flag" arms seizure.

Every disgruntled old curmudgeon is not a potential clock tower sniper (for one thing, we have trouble with all those darn steps! )

And every "disturbed teen" is not another mass shooter. But, by all means, treat them as such, when the nosey neighbor tells you they are a witch!
you do that and I'll assume that as a politician you're going to send a photo of you in your underwear to my teenage granddaughter's phone.
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