The Danger of Red Flag Laws Illlustrated

[Bartholomew Roberts]

https://thefederalist.com/2019/05/02...ly-owning-gun/


In the above article, many Mississippi attorneys express the opinion that just legally owning a firearm, having a carry permit, and being angry with your employer is substantial reason to not just fire a client; but report him to the police as potentially dangerous. This was the scenario they were offered:

A man has been fired from his job. He is upset. He hires you as his attorney. You are of the opinion he has an excellent case and file a complaint on his behalf. You later discover he possesses a permit to carry a firearm. He also has a so-called enhanced carry license. While his case is wending through the courts, your client goes to a public area outside his former workplace. He displays signs that say he has been wrongfully fired. The man has no history of criminal activity, violence, or threatening anyone.

If this is how supposed legal professionals in Mississippi feel, what are we going to see from judges?

[zukiphile]

The most basic duty we owe a client is zealous representation. Tough to square that duty with prejudicing a client's litigation with a public record that he was held on suspicion of being a dangerous nut.

[Spats McGee]

I read that article and having a very, very hard time squaring: (a) reporting that client, on those facts, to the police; with (b) our ethical obligations to clients.

[44 AMP]

t

legally owning a firearm, having a carry permit, and being angry with your employer is substantial reason to not just fire a client; but report him to the police as potentially dangerous.

Would it be proper (let alone fair) to report such an attorney to the bar, for being potentially unethical??

I realize people have a strong desire to prevent harm. They want to keep bad things from happening. But if we don't get a handle (and clamp a muzzle) on this punishment for potential rather than actual acts attitude pretty soon, it is going to take us to a really bad place.


I see 4 stages to doing anything...

Someone COULD
Someone MIGHT
Someone WILL
Someone DID

Since the first laws, we have acted on what someone DID (or did not) do.
We reached he point of acting on someone WILL a long time ago (for a great number of things, evidence, real or imagined, of intent is required)

Red Flag laws are now taking us to the point of acting on someone MIGHT, and all "evidence" is imagined.

(feel free to argue about "imagined" but as I see it, if the person hasn't DONE the bad thing, hasn't stated they intend to do the bad thing, hasn't done anything to prepare to do the bad thing, I don't see how it could be otherwise)

Isn't having government acting on what someone MIGHT do, because of who they are, what they are, or what they own a form of prejudice, and bigotry? isn't just institutional bullying??

Act first, figure it out later, is just a slightly milder form of "shoot first, ask questions later". Isn't it??

[zukiphile]

Originally Posted by 44AMP

Would it be proper (let alone fair) to report such an attorney to the bar, for being potentially unethical??

I would think so.

44 is Zuk's counsel in litigation against Zuk's former employer. 44 files a police report on Zuk as a potential danger, and Zuk is detained for observation to be sure he isn't really a homicidal threat. Maybe newly unemployed Zuk incurs a substantial expense in getting his arms back. Zuk not only has a public record of the incident which may cause all sorts of problems in the future, possibly including 4473 problems, Zuk may now be facing a "look what we were dealing with" defense from his former employer, poisoning an otherwise meritorious case.

44 owes Zuk zealous representation. It's hard to detect 44's zeal in this hypothetical; it looks more like disdain.

That doesn't mean that your bar association will sanction 44, but on the facts provided, an ethics complaint seems fair.

[Bartholomew Roberts]

It is unequivocally unethical behavior under the Texas bar rules, and apparently the Mississippi rules as well. I’d report an attorney who did this to a client; but at the same time, the burden of proof might be hard to carry - and among litigators, complaints to the bar are used frequently enough that it is a little like the boy who cried “wolf.”

Part of me feels like this is a side-effect of increasingly complex laws that even most lawyers don’t understand well outside of their limited specialty area. And once you stray outside that area, it is very easy to substitute your personal biases for knowledge. Because after all, nobody who is charging $200/hr wants to tell their client “I don’t know a damn thing about that area of law but I’ll figure it out for several thousand dollars.” Instead, they shoot from the hip as these lawyers did.

[Aguila Blanca]

Originally Posted by Bartholomew Roberts.

Because after all, nobody who is charging $200/hr wants to tell their client “I don’t know a damn thing about that area of law but I’ll figure it out for several thousand dollars.” Instead, they shoot from the hip as these lawyers did.

How true!

Several years ago, I approached the governing body of my township about a particularly onerous (and unenforceable, according to the Chief of Police) local ordinance regarding possession of firearms on public property. The Town Counsel made the rather remarkable statement to the board that the laws of this state do not allow the use of firearms for self defense.

Yes ... a licensed attorney in private practice, acting as the legal advisor to a municipal government, said that. In an open, public meeting.

[Bartholomew Roberts]

Well, in my experience, municipal government lawyers are paid poorly, expected to know a wide area of law covering many specialties in private practice, and almost immune to the consequences of malpractice. The surprising thing to me is how many do the job well in spite of that; but the incentives don’t line up that way.

[JERRYS.]

its like the Minority Report, but even more fictitious.

[USNRet93]

if the person hasn't DONE the bad thing, hasn't stated they intend to do the bad thing, hasn't done anything to prepare to do the bad thing, I don't see how it could be otherwise)

Isn't having government acting on what someone MIGHT do, because of who they are, what they are, or what they own a form of prejudice, and bigotry? isn't just institutional bullying??

What if they DID state they intend to do a bad thing, and DID a ton of prep to do the bad thing..and that person or group is deemed a terrorist threat..The FBI 'breaks up' terrorist plots all the time, try and convict these people..but some haven't actually haven't really committed any crime..

I AM NOT advocating for any law of any color but this type of thing has been very common on a national level, frequently since 9/11.

https://en.wikipedia.org/wiki/List_o...ates_post-9/11

[zukiphile]

Originally Posted by USNRet93

What if they DID state they intend to do a bad thing, and DID a ton of prep to do the bad thing..and that person or group is deemed a terrorist threat..

..but some haven't actually haven't really committed any crime..

I AM NOT advocating for any law of any color but this type of thing has been very common on a national level, frequently since 9/11.

Conspiracy and an attempt to commit a crime are both a crime.

Having a concealed carry permit and a firearm is completely distinguishable from manifesting an intent and plan.

The type of thing set forth in the hypothetical is not common at the state or federal level.

[44 AMP]

What if they DID state they intend to do a bad thing, and DID a ton of prep to do the bad thing..and that person or group is deemed a terrorist threat..The FBI 'breaks up' terrorist plots all the time, try and convict these people..but some haven't actually haven't really committed any crime..

Everything is dependent on the specifics of the individual case, of course, but in general the reason the FBI breaks up terrorist plots is that they have actually done something that is a crime, during their prep to do the bad thing that is their main intent.

the "mad bombers" are a good example. They can say they intend to do it. Announce it to the world via a manifesto, or just tell a few "friends" (including the FBI informant/undercover guy..) IF that statement of intent reaches the level of credible threat, then legal action can be taken. IF not, its free speech, and no legal action can be taken.

Doing the prep for the bad thing, however can and often is a crime itself. again, using the bomber as an example, having the base raw materials for a bomb may not be a crime (nearly everyone has them), but putting them together to make a bomb IS a crime.

So, that mad bomber is just a loon spouting off, using his right to free speech, UNTIL he starts actually making a bomb. Then he's a criminal to be arrested. We don't have to wait (and don't want to wait) until he sets the bomb OFF.

And now here we have the Red Flag laws, with are targeted against firearms, FOR NOW. How long before people needing to feel safe gets those laws expanded? And the risks we all face because of that.

Again, lets use the mad bomber as just one example. Virtually every household in the country has the materials in it to make a bomb. In the kitchen, the bathroom, the garage, common household chemicals put together the right way, will make a bomb. If you have a car with airbags, you have detonators. If you didn't fail high school chemistry then you "know" how to do it. (whether or not you actually learned or remember doesn't matter, a passing grade will "prove" to a judge you have (or could have) the knowledge needed.

Even if you failed or never took chemistry, if you have Internet access, you COULD have the instructions...

Ready to have them seize your car, because you MIGHT use it as a source for a bomb detonator? IF someone is scared of you, of what they think you MIGHT do, an expanded Red Flag law allows them to do it. Not today, but perhaps tomorrow...

How about seizing your bank accounts?? After all, you MIGHT use money to buy something dangerous....

Think these are ridiculous extremes? I don't. Unlikely, TODAY, yes, but not impossible, who knows what tomorrow will bring?

Do remember that we. as a people, though our elected representative government LEGALLY sent people who LOOKED Japanese to interment camps. Stripped them of their legally owned property, and ignored their legal rights, and sent them to prison camps. We did this because of fears of what they MIGHT do.

And, we didn't officially recognize it as wrong, until more then 40 years later!

Red Flag laws are a "shoot first, figure it out later" solution to a problem that may or may not exist, the downside of them in that by the time you figure out if the problem actually exists or not, you've already shot someone.

[Spats McGee]

Originally Posted by 44 AMP

. . . . Since the first laws, we have acted on what someone DID (or did not) do. We reached he point of acting on someone WILL a long time ago (for a great number of things, evidence, real or imagined, of intent is required) . . . .

I have to disagree. In the criminal context, we don't penalize people for what they WILL do. We penalize them for what they HAVE DONE. Crimes like "conspiracy to" engage in X, Y, or Z require that the actor take some concrete step(s) in furtherance of the crime. Crimes like "possession of a controlled substance with intent to distribute" require that the defendant be "in possession" of the controlled substance. I could "intend" all sorts of crimes, but until I take some step to turn that intent into a reality, there's been no crime.


ETA: Just read the post just above mine, 44AMP. Looks like you already understand this. Sorry.

[sigarms228]

Looks like California wants to expand their red flag law so that bosses and co workers are added to the list of those that can report a law abiding firearm owner as a threat. How long before we see social media user as being able to do the same? While I got along with most my co workers when I was still working there were those that would sell their grandmother into slavery to get ahead or smear a co worker it they thought they were a threat to their advancement or just did not like them or was jealous of them. The damage to ones career due to a illegitimate red flag order would be devastating and possibly even include termination.

https://www.thetruthaboutguns.com/20...d-flag-orders/

California continues to look less and less like America and more and more like a socialist cesspool. The formerly Golden State’s legislators just voted 54-16 for a massive expansion of Cali’s so-called “Gun Violence Restraining Order.”

Looks like Governor of Washington also yesterday signed more gun laws in Washington to expand red flag laws among others.

https://www.nraila.org/articles/2019...anti-gun-bills

Senate Bill 5027, sponsored by Senator David Frockt (D-46), will expand Washington’s existing Extreme Risk Protection Orders (ERPO) by affirming that the ERPO can be issued against minors while also infringing upon the self-defense rights of law-abiding parents or others in the household without due process.

[stinkeypete]

Aguila,
Your state might not have written in the book laws to ALLOW you to defend yourself, that does not mean you don’t have the right. Sorta like the 9th Ammendment.

[Aguila Blanca]

Originally Posted by stinkeypete

Aguila,
Your state might not have written in the book laws to ALLOW you to defend yourself, that does not mean you don’t have the right. Sorta like the 9th Ammendment.

My mention of this was only to illustrate the phenomenon of attorneys shooting from the hip, not to delve into detailed discussion of my state's laws. FWIW, the law DOES specifically and explicitly say you can use deadly force to defend yourself. As has been commented, laws generally tell us what's NOT legal rather than what is legal. My state's law on deadly force follows this pattern. It says that the use of deadly force is a criminal offense.

But it then lists exceptions, and one of the exceptions is self defense.

So the law explicitly says the use of deadly force in self defense is legal. Use of a firearm is deadly force. Ergo, the law says that we can use a gun in self defense.

So Mr. Lawyer shot from the hip, and ended up shooting himself in the foot. Not surprising -- he is an anti-gun zealot, and the town powers-that-be (on both sides of the aisle) are anti-gun zealots.

[P5 Guy]

https://www.abcactionnews.com/news/l...aw-took-effect

My county leads in confiscations?

[silvermane_1]

Lest we forget that that NRA was in favor of unconstitutional "red flag" laws.

[Bartholomew Roberts]

The NRA supported red flag laws that offered due process and met the same standards required of involuntary commitment. To date, I don’t think a single red flag law passed has met that standard.

[P5 Guy]

Sounds like the name should be changed to Red Coat Law.
Forfeiture law was the start of that slippery slope.

[silvermane_1]

Originally Posted by P5 Guy

Sounds like the name should be changed to Red Coat Law.
Forfeiture law was the start of that slippery slope.

Exactly there P5 Guy, Red Coat Law is appropriate name for these types laws.

[TDL]

Lest we forget that that NRA was in favor of unconstitutional "red flag" laws.

Everything in lobbying occurs in an environment, a milieu. If the environment includes a freight train of mass and momentum in favor of extremely egregious red flag laws, including massive public support; a response and countering strategy of profoundly reducing its effect by changes levels of burden of proof,is not a bad strategy at all. The alternative was to let the other side have the ball and the game.

This was not some close issue. Same with Trump on bumpstocks. letting Feinstein and her anything that makes any gun fire faster was profoundly more egregious.

When the choices are bad or worse it is not a mistake to chose bad.

[silvermane_1]

Originally Posted by TDL

Everything in lobbying occurs in an environment, a milieu. If the environment includes a freight train of mass and momentum in favor of extremely egregious red flag laws, including massive public support; a response and countering strategy of profoundly reducing its effect by changes levels of burden of proof,is not a bad strategy at all. The alternative was to let the other side have the ball and the game.

This was not some close issue. Same with Trump on bumpstocks. letting Feinstein and her anything that makes any gun fire faster was profoundly more egregious.

When the choices are bad or worse it is not a mistake to chose bad.

*sigh* You are missing the point, unconstitutional is "unconstitutional", now you can offer all the "rationales/mental gymnastics" you like, but at the end of the day the choice was a "crap sandwich" vs. a "crap sandwich w/cheese & bacon", they're both "crap sandwiches".

[zukiphile]

Originally Posted by Silvermane1

*sigh* You are missing the point, unconstitutional is "unconstitutional", now you can offer all the "rationales/mental gymnastics" you like, but at the end of the day the choice was a "crap sandwich" vs. a "crap sandwich w/cheese & bacon", they're both "crap sandwiches

TDL, didn't miss the point, but stated the pertinent point well.

How exactly do you apply your stated standard that unconstitutional is "constitutional" in the context of an overwhelming political pressure to enact something? Do you effectively resign from the political process by refusing to influence imperfect measures, or do you participate so as to reduce the harm of malicious political pressure? In the context of the 1994 AWB, pressing for a 20 round magazine limit may not meet your standard, but including it would have mitigated some of the harm. In the context of hysterical proposals to ban semi-autos or magazine fed rifles, something as unprincipled as regulating bumpfire stocks can reduce the political pressure that can do greater damage.

That doesn't mean that every fight calls for mere mitigation of harm by diffusing pressure. Mitch McConnell's refusal to give Garland a hearing without granting any of the compromises some of the wets called for worked well. He had the power and the numbers to make it work.

That doesn't make a bad red flag law any more constitutional. It means that people who call for attenuated forms of the passion of the day may have made a judgement call rather than simply misunderstood what is or is not constitutional.

[44 AMP]

In the context of the 1994 AWB, pressing for a 20 round magazine limit may not meet your standard, but including it would have mitigated some of the harm.

Which is what Bill Ruger tried to do and has been vilified by the under informed for it, ever since, and still is, despite his passing many years ago.

People "blame" him for proposing a 10rnd limit, wrongly thinking that various congressmen hadn't thought of a mag capacity limit beforehand. They had, and they were locked in an argument amongst themselves whether the limit should be 7 rounds, or 6!!! It was a political certainty that something was going to be passed. Ruger's 10rnd suggestion gave them something they would agree on, so the limit wasn't even LESS!!


So, yes, there have been times when someone on "our" side does toss a baby off the sleigh to slow the wolves. We should have to, but until such time as either the wolves go away or we're allowed to shoot them, what else is to be done??