Vermont's Red Flag Law (NPR Story this morning)

[Aguila Blanca]

Originally Posted by zukiphile

I'm differently abled re emoticons.

Sorry, but differently abled re emoticons is not a constitutionally protected class.

[Spats McGee]

Originally Posted by USNRet93

. . . . Just for info..CO RFL starts a process, that entails temporary gun seizure, a court hearing before a judge where both parties have legal representation..NOT saying RFL good or bad BUT some, I think, assume a RFL means all guns seized permanently after a girlfriend complains about a boyfriend, type thing.

That's not what CO law says. Immediately below, I've quoted the CO statute, with some underlines for emphasis. Note that HB-19-177 has made some changes, but I didn't have time to go through them with a fine-toothed comb. And posting them here, in addition to this would have made for an exceptionally long, ungainly post.

Originally Posted by CO legislature

(1) A family or household member of the respondent or a law enforcement officer or agency may request a temporary extreme risk protection order without notice to the respondent by including in the petition for an extreme risk protection order an affidavit, signed under oath and penalty of perjury, supporting the issuance of a temporary extreme risk protection order that sets forth the facts tending to establish the grounds of the petition or the reason for believing they exist and, if the petitioner is a family or household member, attesting that the petitioner is a family or household member. The petition shall comply with the requirements of section 13-14.5-104(3). If the petitioner is a law enforcement officer or law enforcement agency, the law enforcement officer or law enforcement agency shall concurrently file a sworn affidavit for a search warrant pursuant to section 16-3-301.5 to search for any firearms in the possession or control of the respondent at a location or locations to be named in the warrant. If a petition pursuant to section 27-65-106 is also filed against the respondent, a court of competent jurisdiction can hear that petition at the same time as the hearing for a temporary extreme risk protection order or the hearing for a continuing extreme risk protection order.

(2) In considering whether to issue a temporary extreme risk protection order pursuant to this section, the court shall consider all relevant evidence, including the evidence described in section 13-14.5-105(3).

(3) If a court finds by a preponderance of the evidence that, based on the evidence presented pursuant to section 13-14.5-105(3), the respondent poses a significant risk of causing personal injury to self or others in the near future by having in his or her custody or control a firearm or by purchasing, possessing, or receiving a firearm, the court shall issue a temporary extreme risk protection order.

(4) The court shall hold a temporary extreme risk protection order hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed. The court may schedule a hearing by telephone pursuant to local court rule to reasonably accommodate a disability or, in exceptional circumstances, to protect a petitioner from potential harm. The court shall require assurances of the petitioner's identity before conducting a telephonic hearing. A copy of the telephone hearing must be provided to the respondent prior to the hearing for an extreme risk protection order.

(5)(a) In accordance with section 13-14.5-105(1), the court shall schedule a hearing within fourteen days after the issuance of a temporary extreme risk protection order to determine if a three-hundred-sixty-four-day extreme risk protection order should be issued pursuant to this article 14.5. Notice of that hearing date must be included with the temporary extreme risk protection order that is served on the respondent. The court shall provide notice of the hearing date to the petitioner.

(b) Any temporary extreme risk protection order issued expires on the date and time of the hearing on the extreme risk protection order petition or the withdrawal of the petition.

(6) A temporary extreme risk protection order must include:
(a) A statement of the grounds asserted for the order;
(b) The date and time the order was issued;
(c) The date and time the order expires;
(d) The address of the court in which any responsive pleading should be filed;
(e) The date and time of the scheduled hearing;
(f) The requirements for surrender of firearms pursuant to section 13-14.5-108; and
(g) The following statement:

To the subject of this temporary extreme risk protection order: This order is valid until the date and time noted above. You may not have in your custody or control a firearm or purchase, possess, receive, or attempt to purchase or receive a firearm while this order is in effect. You must immediately surrender to the (insert name of law enforcement agency in the jurisdiction where the respondent resides) all firearms in your custody, control, or possession, and any concealed carry permit issued to you. A hearing will be held on the date and at the time noted above to determine if an extreme risk protection order should be issued. Failure to appear at that hearing may result in a court entering an order against you that is valid for three hundred sixty four days. An attorney will be appointed to represent you, or you may seek the advice of your own attorney at your own expense as to any matter connected with this order.

(7) A law enforcement officer shall serve a temporary extreme risk protection order concurrently with the notice of hearing and petition and a notice that includes referrals to appropriate resources, including domestic violence, behavioral health, and counseling resources, in the same manner as provided for in section 13-14.5-105 for service of the notice of hearing where the respondent resides. . . .

Colo. Rev. Stat. Ann. § 13-14.5-103 (West)

Here's what I see:

• Petitioner (either family member or LE) files a petition for a Temporary Extreme Risk Protection Order;
• If LE file the petition, they are required to file an application for a search warrant at the same time;
• No notice to the respondent is required;
• Court is required to have a hearing either on the day the petition is filed, or the next day;
• At this hearing, only the petitioner's side will be heard, and the petitioner must get to the "preponderance of the evidence" standard;
• If the court issues the order, it must then be served on the respondent; and
• The court must have a hearing on the petition within fourteen days. Note that the court has to hear the petitioner's side of the story ex parte, and today or tomorrow, but it may wait up to fourteen days to hear the respondent's side of the story, and that will be heard in a contested hearing.

And in case you want to know how service of the order and surrender of firearms is supposed to go down:

Originally Posted by CO legislature

(1)(a) Upon issuance of an extreme risk protection order pursuant to this article 14.5, including a temporary extreme risk protection order, the court shall order the respondent to surrender all firearms by:
(I) Selling or transferring possession of the firearm to a federally licensed firearms dealer described in 18 U.S.C. sec. 923, as amended; except that this provision must not be interpreted to require any federally licensed firearms dealer to purchase or accept possession of any firearm;
(II) Arranging for the storage of the firearm by a law enforcement agency. The law enforcement agency shall preserve the firearm in a substantially similar condition that the firearm was in when it was surrendered. If the respondent does not choose the option in subsection (1)(a)(I) of this section, a local law enforcement agency shall store the firearm; or
(III) Only for either an antique firearm, as defined in 18 U.S.C. sec. 921(a)(16), as amended, or a curio or relic, . . . . to a relative who does not live with the respondent after confirming, through a criminal history record check, the relative is currently eligible to own or possess a firearm under federal and state law.
(b) The court shall order the respondent to surrender any concealed carry permit to the law enforcement officer serving the extreme risk protection order.
(2)(a) The law enforcement agency serving any extreme risk protection order pursuant to this article 14.5, including a temporary extreme risk protection order in which the petitioner was not a law enforcement agency or officer, shall request that the respondent immediately surrender all firearms in his or her custody, control, or possession and any concealed carry permit issued to the respondent and conduct any search permitted by law for such firearms or permit. After the law enforcement agency or officer has custody of the firearms, the respondent may inform the law enforcement officer of his or her preference for sale, transfer, or storage of the firearms as specified in subsection (1) of this section. If the respondent elects to sell or transfer the firearms to a federally licensed firearms dealer described in 18 U.S.C. sec. 923, as amended, the law enforcement officer or agency shall maintain custody of the firearms until they are sold or transferred pursuant to subsection (1)(a)(I) of this section. The law enforcement officer shall take possession of all firearms and any such permit belonging to the respondent that are surrendered, in plain sight, or discovered pursuant to a lawful search. Alternatively, if personal service by the law enforcement agency is not possible, or not required because the respondent was present at the extreme risk protection order hearing, the respondent shall surrender the firearms and any concealed carry permit within twenty-four hours after being served with the order by alternate service or within twenty-four hours after the hearing at which the respondent was present.
(b) If the petitioner for an extreme risk protection order is a law enforcement agency or officer, the law enforcement officer serving the extreme risk protection order shall take custody of the respondent's firearms pursuant to the search warrant for firearms possessed by a respondent in an extreme risk protection order, as described in section 16-3-301.5, if a warrant was obtained. . . .

Colo. Rev. Stat. Ann. § 13-14.5-108 (West)

In other words, when the officers show up to serve the ERPO, they're going to have a warrant, they're going to search, and they're going to take your guns. No, you may not have Cousin Eddie come store them at his house. They must either stay with LE, or go to an FFL for storage.

[kmw1954]

Spats, thank you! Exactly as written so only a lawyer can understand it. So now when politicians do not get reelected they all have something to fall back on. Orders of Protection!

So as I understand this if my brother and I are sitting watching Thanksgiving Day football and get in a fight about a call or play they could call police and get an Order of Protection because I may have knocked him on his butt, or hit him with a bowl of Cheetos!

I really see nowhere that there are parameters to set forth what constitutes an Order of Protection issuance. Is it as little as a verbal threat? Or as little as my walking around talking to myself? All I know is I'm going to start watching the ball games by myself and no more watching Cable News!

[Aguila Blanca]

Spats, I follow that. And the Colorado law seems to track pretty closely with my state's red flag law, right down to the requirement for a "real" (my word) hearing within 14 days after the date of the confiscation order. I have a question, and if the answer is that this is a still-evolving area of law, then so be it.

Let's suppose that I live in Colorado, I hold a CO carry license/permit, I own a gun ... and I also own a vacation home in Utah. I also hold a Utah carry permit, and I keep some firearms in the Utah house.

The Colorado ERPO says I have to surrender "all firearms in his or her custody, control, or possession and any concealed carry permit issued to the respondent me." When Officer friendly knocks on my door, I let him take all the guns I have in the house in Colorado, and I give him my Colorado carry permit.

Does the Colorado ERPO extend beyond the borders of Colorado? If I spend the two weeks between the service of the ERPO and the "real" hearing in Utah, am I violating the order by having guns in my house? Do I have to give the CO police officer my Utah (and any other non-resident) permits I have, or can the Colorado court only confiscate my Colorado carry permit?

[Spats McGee]

Originally Posted by Aguila Blanca

Spats, I follow that. And the Colorado law seems to track pretty closely with my state's red flag law, right down to the requirement for a "real" (my word) hearing within 14 days after the date of the confiscation order. I have a question, and if the answer is that this is a still-evolving area of law, then so be it.

I'll do my best.

Originally Posted by Aguila Blanca

Let's suppose that I live in Colorado, I hold a CO carry license/permit, I own a gun ... and I also own a vacation home in Utah. I also hold a Utah carry permit, and I keep some firearms in the Utah house.

The Colorado ERPO says I have to surrender "all firearms in his or her custody, control, or possession and any concealed carry permit issued to the respondent me." When Officer friendly knocks on my door, I let him take all the guns I have in the house in Colorado, and I give him my Colorado carry permit.

OK. That lays out the facts. Now for your questions.

Originally Posted by Aguila Blanca

Does the Colorado ERPO extend beyond the borders of Colorado?

As I'm sure you know, it depends on the language of the ERPO. And with the admission that I've never seen an CO ERPO, the statute on the temporary ERPO says that it (the ERPO) must contain the following language: "You may not have in your custody or control a firearm or purchase, possess, receive, or attempt to purchase or receive a firearm while this order is in effect." Colo. Rev. Stat. Ann. § 13-14.5-103 (West). So, technically, the order extends to the defendant wherever he may be. But the CO order, in and of itself, is not enforceable in Utah unless there is a mechanism by which Utah recognizes it. Will an ERPO be put into NCIC the way restraining orders are? If not, how will a Utah officer find out about it? Does Utah have a statute criminalizing firearms possession while under an ERPO? In time, I'm sure all of this stuff will be sorted out, but I'm not sure it is yet.

Originally Posted by Aguila Blanca

If I spend the two weeks between the service of the ERPO and the "real" hearing in Utah, am I violating the order by having guns in my house?

Probably, but see above.

Originally Posted by Aguila Blanca

Do I have to give the CO police officer my Utah (and any other non-resident) permits I have, or can the Colorado court only confiscate my Colorado carry permit?

I don't think CO has any jurisdiction to make you surrender your UT or other CCLs, not unless I missed something, or laws are amended to allow for that seizure.

[USNRet93]

Here's what I see:
Petitioner (either family member or LE) files a petition for a Temporary Extreme Risk Protection Order;
If LE file the petition, they are required to file an application for a search warrant at the same time;
No notice to the respondent is required;
Court is required to have a hearing either on the day the petition is filed, or the next day;
At this hearing, only the petitioner's side will be heard, and the petitioner must get to the "preponderance of the evidence" standard;
If the court issues the order, it must then be served on the respondent; and
The court must have a hearing on the petition within fourteen days. Note that the court has to hear the petitioner's side of the story ex parte, and today or tomorrow, but it may wait up to fourteen days to hear the respondent's side of the story, and that will be heard in a contested hearing.

Here's what I wrote

Just for info..CO RFL starts a process, that entails temporary gun seizure, a court hearing before a judge where both parties have legal representation..NOT saying RFL good or bad BUT some, I think, assume a RFL means all guns seized permanently after a girlfriend complains about a boyfriend, type thing.

Yes, person on interest doesn't know it's happening and doesn't know his guns may get seized..BUT he DOES stand before a judge, with legal representation(if the person wants) in 14 days..

MY point was that some seem to think that the guns are seized..and that's that..no recourse in any way for any person of interest. There is 'due process', after the fact, sort of..when both parties stand before the judge.

BUT some, I think, assume a RFL means all guns seized permanently after a girlfriend complains about a boyfriend, type thing.

[Spats McGee]

I realized after posting that I had perhaps misread your post. I see what you mean now.

[Aguila Blanca]

Originally Posted by USNRet93

Yes, person on interest doesn't know it's happening and doesn't know his guns may get seized..BUT he DOES stand before a judge, with legal representation(if the person wants) in 14 days..

MY point was that some seem to think that the guns are seized..and that's that..no recourse in any way for any person of interest. There is 'due process', after the fact, sort of..when both parties stand before the judge.

Yes, you get to have a hearing before a judge -- typically within two weeks after Officer Friendly has confiscated your guns. But you are not aware of or represented at the initial hearing, which may not even be a hearing -- in the Colorado statute cited above, if I read it correctly, the initial ex parte (one-sided) "hearing" may be nothing more than a telephone call. So within two weeks you get a hearing. Suppose you're a collector. By then, your guns may have been damaged by the way the police handled and stored them. When you get to the "real" hearing, are you not fighting an uphill battle? There's already a court order that says you're a menace to society. How difficult is it to prove that you're not?

And how does this square with the Fourth Amendment?

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.

By definition, the confiscation of your property (in this case, your firearms) is a seizure. An EPRO is effectively, I think, sort of like a warrant. The people pushing these EPROs will claim that they don't violate the Fourth Amendment because the searches and seizures are "reasonable" and supported by oath and/or affirmation. But people whose purpose is to punish you or get revenge on you won't be concerned about lying under oath to get the order. Unless there are stringent penalties for making a false affirmation, these orders are anathema. Even if the information in the original complaint is shown to be an outright falsehood at the "real" hearing, IMHO it's an insufficient remedy if the complainant is allowed to just say "Oops" and go home to dream up another complaint for another day.

The Fourth Amendment says "... upon probable cause, supported by Oath or affirmation ..." If all the order is based on is a jilted lover saying to the judge "He looked at me cross-eyed, and I'm scared," how does that satisfy the probable cause requirement of the Fourth Amendment?

I think these EPROs are very questionable on constitutional grounds, but they're so new that there haven't been any (or many) challenges through the courts yet, and none at the Supreme Court level.

[kmw1954]

All very valid points, suspicions and concerns. My only suggestion once again is to start a writing campaign to your US Reps. and Senators but also your State Assembly and State Senators. I have already done so, and not by using a form letter from a website. A personal letter holds much more value.

[44 AMP]

without notice to the respondent...

(3) If a court finds by a preponderance of the evidence that, based on the evidence presented pursuant to section 13-14.5-105(3), the respondent poses a significant risk of causing personal injury to self or others in the near future by having in his or her custody or control a firearm or by purchasing, possessing, or receiving a firearm, the court shall issue a temporary extreme risk protection order.

This is one part that simply bothers me. If you are not notified the order is being requested, you cannot, absent some clairvoyant powers, know about it, and therefore CANNOT present any evidence, so sec 3 above becomes a slam dunk. Since only one side is presenting evidence, it must be the preponderance of the evidence to any court. I don't see how the court could rule ANYTHING but issuance of the order if all the evidence they see supports the request.

The red flag, seize guns first figure it out later idea is popular, because it seems to enhance safety. This isn't going away, and while we fight the idea because of the probability of abuse, its already law many places, isn't going away, and is likely to spread.

So, how about a compromise, a slight change of tactics. Instead of fighting the law's concept (which seems to be a losing task in our democracy) how about we do as much as we can to ensure protections for innocents caught in the system are built into the law.

What if part of the law REQURIED the state to maintain firearms seized under the ERPO "intact, undamaged, and undeteriorated" until all legal proceedings involved with the ERPO are completed, AND had penalties for failure to do so?

Personally I'd like to see some kind of penalty, something PERSONAL to the people who store the weapons if they allow them to be damaged BEFORE the owner is convicted of any crime. Along with some kind of penalty to the department, something personal to the individual(s) like making them pay for damages, out of their own pocket.

Something like this, IN THE LAW would go a long way to minimizing the financial s
damage to the property a false accusation can result in.

If you aren't found "guilty" of being a threat, when all is said and done, you deserve to be "made whole" and while nothing can replace the time lost, minimizing the potential for your property being damaged while it is in their custody can't hurt, as I see it.

Having something like that in the law would, I think, reduce the need for having to go back to court for restitution due to damage caused by police "negligence".

IF somebody, by intent or ignorance, stores my guns in cardboard boxes under a leaky pipe and by the time the legal system finishes and I am vindicated, they are all rusted together, I want to be able to face a Judge and say, look what happened while MY things were in your custody, not only do you owe me, someone should be punished!

probably a pipe dream, but if we can get some kind of language into the law requiring them to be responsible with OTHER PEOPLE'S PROPERTY, I don't see that as any kind of loss.

Won't stop abuse, but might encourage a bit more consideration...

[zukiphile]

Originally Posted by 44 AMP

This is one part that simply bothers me. If you are not notified the order is being requested, you cannot, absent some clairvoyant powers, know about it, and therefore CANNOT present any evidence, so sec 3 above becomes a slam dunk. Since only one side is presenting evidence, it must be the preponderance of the evidence to any court. I don't see how the court could rule ANYTHING but issuance of the order if all the evidence they see supports the request.

On the nose.

If you are a judge, you may have a sense for when someone is misleading you, or you may think the petitioner's fear isn't rational. Yet, unless they testify that they aren't afraid of the respondent or lied on the petition, they will clear the preponderance bar.

So, you've a law in which the evidentiary threshold is an illusion. What is the benign motive for incorporating this illusion into law?

[spacemanspiff]

If there is no guarantee that the person served with a ERPO and 'redflagged' will give up ALL their guns, and that they will not go buy a gun from a private individual, or get one loaned to them by a buddy, the red flag law is useless.

Equivalent to someone convicted of drug possession/trafficing, that is ordered by the court to 'not be around drugs, not to possess drugs, etc etc'. Everyone knows what that person is going to go and do first chance they get.

[sigarms228]

Originally Posted by spacemanspiff

If there is no guarantee that the person served with a ERPO and 'redflagged' will give up ALL their guns, and that they will not go buy a gun from a private individual, or get one loaned to them by a buddy, the red flag law is useless.

Equivalent to someone convicted of drug possession/trafficing, that is ordered by the court to 'not be around drugs, not to possess drugs, etc etc'. Everyone knows what that person is going to go and do first chance they get.

Great point and several of us had made similar comments. If someone is that dangerous where someone is telling a judge that said person is going to kill me or shoot up a school then why would they not lock them up too rather than just confiscate guns they find?

The answer IMO is that red flag laws are feel good "something has to be done" laws and due process be damned. The potential for abuse of them is enormous. I can see where they could be routine in divorces. As red flag cases become more numerous you can bet the it will be brought up that gun registration is needed to make the confiscation part effective.

[Aguila Blanca]

Originally Posted by sigarms228

The answer IMO is that red flag laws are feel good "something has to be done" laws and due process be damned. The potential for abuse of them is enormous. I can see where they could be routine in divorces. As red flag cases become more numerous you can bet the it will be brought up that gun registration is needed to make the confiscation part effective.

That's the crux of the issue, IMHO. The anti-gun forces are using every means at their disposal to clamp down on the Second Amendment right to keep and bear arms. This means using laws such as "red flag" laws to restrict (which IMHO equals "infringe") the RKBA.

The Fourth Amendment reads:

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.

Read that carefully. Notice that it says no warrants shall be issued except upon probable cause supported by oath or affirmation.

Now look at the start of the Colorado RFL as cited by Spats McGee in post #27:

(1) A family or household member of the respondent or a law enforcement officer or agency may request a temporary extreme risk protection order without notice to the respondent by including in the petition for an extreme risk protection order an affidavit, signed under oath and penalty of perjury, supporting the issuance of a temporary extreme risk protection order that sets forth the facts tending to establish the grounds of the petition or the reason for believing they exist and, if the petitioner is a family or household member, attesting that the petitioner is a family or household member. The petition shall comply with the requirements of section 13-14.5-104(3). If the petitioner is a law enforcement officer or law enforcement agency, the law enforcement officer or law enforcement agency shall concurrently file a sworn affidavit for a search warrant pursuant to section 16-3-301.5 to search for any firearms in the possession or control of the respondent at a location or locations to be named in the warrant. If a petition pursuant to section 27-65-106 is also filed against the respondent, a court of competent jurisdiction can hear that petition at the same time as the hearing for a temporary extreme risk protection order or the hearing for a continuing extreme risk protection order.

So the crafters of this law made sure they touched all the bases to try to make this law stand up under constitutional scrutiny. They even went further than the 4A requires -- they didn't say "oath or affirmation," they said "affidavit [which is a form of affirmation], signed under oath." So they checked both boxes. That didn't just happen by accident. They knew they were playing fast and loose with due process, and IMHO that was their intent -- to restrict ("infringe") due process [for gun owners] as much as they possibly could while maintaining as much chance as they could of withstanding constitutional scrutiny.

What I need to do, but haven't done yet, is to go back and read what the Founders and their contemporaries wrote with respect to the Fourth Amendment. When they wrote "upon probable cause, supported by Oath or affirmation," did they mean an oath or affirmation by just anyone, or did they mean an oath or affirmation by some elected or duly appointed official? They did NOT mean a police officer, because police departments were still many years in the future at the time the Bill of Rights was written. So ... whose oath or affirmation, and what kind of oath or affirmation did they consider to be "probable cause" to allow the government to search private property and to seize personal possessions?

[44 AMP]

So ... whose oath or affirmation, and what kind of oath or affirmation did they consider to be "probable cause" to allow the government to search private property and to seize personal possessions?

My best guess is that it would be an oath or affirmation of a member of "we, the people", meaning any citizen. As you noted, police didn't come along until well after the Constitution, so they couldn't have meant the police. And at the time of the writing, there were no Federal officials, and Colonial officials didn't become state officials until after the formation of the nation turning the united colonies into the United States.

The Founders seem pretty consistent, when they refer to government, (such as "Congress shall make no law....) and referring to the states as states, and the people in general as "the people".

Another one of the ideas popular at the time was that elected (or appointed) officials were just ordinary folks like the rest of us, they just had a different job. I think if they meant to restrict who could make an oath or affirmation supporting a warrant to certain people, they would have stated it clearly.

The only place I can think of, off the top of my head, where "certain public officials" are called out as a special class is in the definition of the militia. (which is not in the Constitution, itself)

I could be wrong, of course. Good luck with your research, and do let us know what, if anything you find.

[MTT TL]

If someone is that dangerous where someone is telling a judge that said person is going to kill me or shoot up a school then why would they not lock them up too rather than just confiscate guns they find?

Ironically they don't to violate their civil rights by sticking them in jail. And we don't really do mental health in this country anymore so there is nowhere to commit them. I live in a metro area that has about 250,000 people living in it. There is one mental hospital with 50 beds. The next closest mental hospital is about 100 miles away in a metro area of about 1,000,000 with a 150 bed hospital. These are of course constantly full. There isn't anywhere to put people with mental illnesses.