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April 18, 2019, 01:24 PM | #51 |
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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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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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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. |
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:
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April 18, 2019, 09:35 PM | #55 | |
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that seems pretty straightforward, and explained better than many statutes, HOWEVER
Quote:
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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April 18, 2019, 11:20 PM | #56 | |
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April 19, 2019, 02:22 AM | #57 |
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How about
"if it COSTS one life...." ??????
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April 19, 2019, 10:57 AM | #58 | |
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Quote:
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April 19, 2019, 11:00 AM | #59 | |
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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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April 19, 2019, 12:48 PM | #60 |
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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. |
April 19, 2019, 01:01 PM | #61 | |
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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. |
April 19, 2019, 02:05 PM | #63 | |
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Quote:
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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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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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. |
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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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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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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April 19, 2019, 03:39 PM | #69 | |
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Quote:
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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April 19, 2019, 03:43 PM | #70 | |
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Quote:
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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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. |
April 19, 2019, 08:09 PM | #72 | |
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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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