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Old February 22, 2019, 10:47 AM   #26
USNRet93
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Originally Posted by zukiphile View Post
That means that there is no protection against it. That's far from a sufficient safeguard. Of course, if the vengeful girlfriend believe the false information she feeds the court, the bill protects her.



Making this proposed law better would mean scraping it. States already have involuntary commitment procedures and laws against menacing. This proposal is designed as an end run around important existing rights.
I bow to your vastly better knowledge of the law than me..BUT this is going to become law..It'll be interesting how it shakes out.
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Old February 22, 2019, 10:49 AM   #27
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We already have the M-1 mental health 72 hour hold. That can be called for by the same "victims" During the 72 hour hold,existing law already covers disarming people after a professional evaluation determines they are a danger.That more resembles the due process all citizens deserve.
Will this new law replace this law?

No..
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Old February 22, 2019, 11:01 AM   #28
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No bowing is sought.

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Will this new law replace this law?

No..
The point is that this new law doesn't solve an existing problem that isn't addressed by the old law.

Criminal defendants have rights to hear the charges against them, and face their accusers.

Real civil TROs and injunctive relief involves a court finding a likelihood of the plaintiff prevailing, a bond for any damage the injunctive relief may do, and documentation that someone at least tried to get notice to the defendant.

This ERPO proposal is a hybrid without the protections of either system. Imagine the most vindictive, shortsighted person with a grudge against you you've ever known, and how they would make you sound to a court without you there to respond, or the most crooked PO you've ever known. That's who this process empowers.

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Old February 22, 2019, 11:13 AM   #29
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No bowing is sought.


The point is that this new law doesn't solve an existing problem that isn't addressed by the old law.

Criminal defendants have rights to hear the charges against them, and face their accusers.

Real civil TROs and injunctive relief involves a court finding a likelihood of the plaintiff prevailing, a bond for any damage the injunctive relief may do, and documentation that someone at least tried to get notice to the defendant.

This ERPO proposal is a hybrid without the protections of either system. Imagine the most vindictive, shortsighted person with a grudge against you you've ever known, and how they would make you sound to a court without you there to respond, or the most crooked PO you've ever known. That's who this process empowers.
Gotta wonder why these legal arguments were never brought up(maybe they were, I don't know)..Pretty sure the GOP that were against the bill had legal advice.
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Old February 22, 2019, 11:20 AM   #30
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Mods,I'm the OP. I did not primarily intend this post to be a forum to argue the merits of the bill.although the discussion has served to shed light on the issues.

The way Colorado elections went,this bill will probably pass. The Dems hold both houses and the Dem Governor is from Boulder.


I wrote this thread to find out which organization might be most effective at challenging the Constitutionality in court.


That might be Colorado State Shooters Association,or Rocky Mountain Gun Owners,or ?? .I'm in favor of starting the financial war chest now.

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Old February 22, 2019, 11:31 AM   #31
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Originally Posted by USNRet93
Gotta wonder why these legal arguments were never brought up(maybe they were, I don't know)
Then maybe you don't need to wonder.

That police like laws that give them greater latitude and legislators like to be seen "doing something about x" are both phenomena that can explain why some people would have an interest in seeing this through.

HiBC, while not downplaying the importance of money in anything, I think you are most likely to see a remedy in legal networks devoted to striking these things. In Ohio, the judiciary are aware of the shortcomings and inevitable abuse of these orders, but the first court to issue a ruling invalidating the law is going to be vilified at his next election.
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Old February 22, 2019, 11:31 AM   #32
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Next will come the attempt to Red Flag cops, prosecutors and judges - don't think these scumbags won't use every trick they can get
If these laws are passed, that should be our tactic. (and you left out legislators)
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Old February 22, 2019, 11:53 AM   #33
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zukiphile, Thank you for being a qualified voice of reason.
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Old February 22, 2019, 01:06 PM   #34
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I wrote this thread to find out which organization might be most effective at challenging the Constitutionality in court.


That might be Colorado State Shooters Association,or Rocky Mountain Gun Owners,or ?? .I'm in favor of starting the financial war chest now.
In summary, I live in a gun friendly state that has had a very similar law on the books for many years now. There may be quirks of CO constitutional law that it runs afoul of, but I don't see the SCOTUS or any Federal court taking this up and striking it down as a basic concept. If that were possible, it would likely have been done years ago. Going back to the 1980s. I don't mean to sarcastically say "Good Luck," but good luck.


We have had this discussion numerous times on TFL regarding ex parte orders and red flag laws. Many don't seem to realize that these laws aren't new in many parts of the country. And with that being said, they have been abused. I have personally seen it first hand. I dare say that, in my state at least, the potential for abuse has been seen by virtually all in the Judicial system. Once upon a time, the vast majority of these orders did not survive the following due process hearing. It seems Judges have learned a little reason and it takes a little more now than "he/she has a gun and I'm in fear of my life because he/she is angry at me" to be granted the order in ex parte in the first place. I would still be surprised if more than half of these orders remained in place after the due process hearing, IF THE RESPONDENT HIRES COMPETENT COUNSEL AND FIGHTS THE PROCESS. Unfortunately, there are a lot of cases where someone will believe their guilt as they don't understand technicalities in the law, and plead guilty or not fight an order just to have the whole incident behind them.
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Old February 22, 2019, 01:15 PM   #35
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#1 what if you aren't home? Do they kick in the door and cut your safes open to search for guns? Who pays for the damages?

#2 what if you are home, you comply and allow them into the house, and then you excercise your right to decline questioning - is that a crime all the sudden?

#3 then just generally - if the police are given authority to force entry, to use force in order to carry out these acts, it is potentially putting everyone involved in danger over what doesn't even amount to a criminal investigation. Even putting aside the situation of police busting down the door at night trying to surprise a gun owner, what if you own a protective dog? Lots of bad things happen when you go breaking into someone's home, even if it's a level headed model citizen.
You must be served, in person, with any subpoena or court order depriving you of property before it can go into affect. So basically, they aren't going to kick your door in and cut your safe open if you aren't home.

As to complying with questioning in #2... the matter is a civil matter and not a criminal matter. You still are not obligated to answer questions relating to the case, nor do the police (probably Sheriff Deputies, as this is civil law and Sheriff's are usually the only entity that can legally serve civil processes in most states) care to question you related to the case. They're just there to serve the order. The only legal obligation you have is to turn over all property that the order specifies.

And to #3, I have yet to see a SWAT team forced entry to serve a civil process where I'm from, even an ex parte order allowing for the confiscation of firearms. If deputies have a genuine concern that things could get ugly, they will come with more than a couple of guys. They still won't kick in your door and toss your house to take your guns unless you've been evading the service of the order and they prepare a search warrant to force the matter.
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Old February 22, 2019, 01:45 PM   #36
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..unless you think people like Cruz, Holmes and D. Roof, etc. were the 'law abiding gun owners'...
This is one of the big problems with the issue. Until a wackjob starts shooting people, they are technically "law abiding gun owners". No matter how twisted, evil, unbalanced or unstable they may seem, until they break EXISTING law, (and get convicted) they have the same rights as everyone else.

Another problem with the "red flag" approach is the difficulty proving a negative. How does one prove they don't have secret plans to commit murder or mass murder?

Prove to us you aren't a witch! OK, you've never been caught casting a spell, all that proves is you've never been caught. And you do have a broom and a black cat...so you must be a witch! and so it goes,...
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Old February 22, 2019, 01:59 PM   #37
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44 AMP : And so a FREE SOCIETY is not,and never will be,Utopia.

When people are Free, some will do evil.

But a Government that stifles Freedom under the guise of "fighting evil" stifles all people,evil or not.

As a government becomes larger,more controlling,more punitive,it becomes evil itself.
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Old February 22, 2019, 03:24 PM   #38
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Salami slicing tactics. What next-protective custody?
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Old February 22, 2019, 06:19 PM   #39
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Old February 22, 2019, 08:05 PM   #40
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We will see what happens, that is for sure. I will say that if you are on anti-anxiety meds I would be a bit hesitant running to the Dr. for a Xanax or Prozac prescription or refill.
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Old February 23, 2019, 12:19 AM   #41
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When people are Free, some will do evil.

But a Government that stifles Freedom under the guise of "fighting evil" stifles all people,evil or not.

As a government becomes larger,more controlling,more punitive,it becomes evil itself.
This is a very simple, and accurate, way of describing a large issue that America is facing. At least in the context of discussing appropriate size and actions of our Government.
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Old February 24, 2019, 06:25 PM   #42
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SIGSHR: What next-protective custody?
don't give them any ideas.....

Basically, the Dems own everything in Colorado this term. They're gonna get everything on their wish list. I'm not holding my breath for any way out but the legal route.
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Old February 25, 2019, 10:19 AM   #43
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Prove to us you aren't a witch!
IIRC, from my college history, they would submerge the accused. If the accused drowned, they were innocent.

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What next-protective custody?
We all know their end game. Total confiscation. That's the goal.

Quote:
the Dems own everything in Colorado this term.
For years I entertained the notion of retiring in Colorado. The fact that it has fallen so far, so fast, boggles the mind.
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Old February 25, 2019, 11:42 AM   #44
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The psychiatric and psychological professions have raised the problem of such laws being based on faulty predictive instruments and/or the risk of folks not seeking help because of fearful legal consequences. The latter is a problem currently with LEOs and military who think seeking help will tank their careers and that fear is legitimate.

However, legislators don't pay much attention to science that goes against their position (that's true of the entire political spectrum).
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Old February 25, 2019, 12:14 PM   #45
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There is no provision whatsoever in this bill for any contact or evaluation with or by any medical or mental health professional as part of the process.

Some advocate for the bill included an excerpt that allows submitting evidence of any past mental health contact as evidence to issue the order.

It all takes place with the accused being unaware anything is happening.

The accused is given no opportunity to cross examine the accuser.

The order is written,and the burden of proof (How do you prove you represent no danger? What more can anyone do than simply say "I have no desire to harm anyone" What more could YOU do?)

If our Constitution does not protect the Minority of One Individua Human Being,The Right to be secure in our propert,protection from unreasonable search and seizure,the Right to Keep and Bear arms,and the due process rights,such as the right to confront the accuser,and being innocent until proven guilty.....What is left? What is left????

All that this bill needs is the Governor's signature.
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Old February 25, 2019, 12:54 PM   #46
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Originally Posted by HiBC
There is no provision whatsoever in this bill for any contact or evaluation with or by any medical or mental health professional as part of the process.
Quote:
(8) (a) BEFORE ISSUING AN EXTREME RISK PROTECTION ORDER, THE23 COURT SHALL CONSIDER WHETHER THE RESPONDENT MEETS THE24 STANDARD FOR A COURT-ORDERED EVALUATION FOR PERSONS WITH25 MENTAL HEALTH DISORDERS PURSUANT TO SECTION 27-65-106. IF THE26 COURT DETERMINES THAT THE RESPONDENT MEETS THE STANDARD, THEN,27
HB19-1177-13
IN ADDITION TO ISSUING AN EXTREME RISK PROTECTION ORDER, THE1 COURT SHALL ORDER MENTAL HEALTH TREATMENT AND EVALUATION2 AUTHORIZED PURSUANT TO SECTION 27-65-106 (6).
http://leg.colorado.gov/sites/defaul...9a_1177_01.pdf

On re-reading, I see this should only occur at the hearing for which a respondent has notice and at which he has counsel, not at the TRO hearing at which only the petitioner is present.

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Old February 26, 2019, 01:34 AM   #47
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AZ versions all died in committee...unless the Gov pulls a fast one like last year and breaks the Senate rules.
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Old February 26, 2019, 05:54 PM   #48
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The state of CO politics, beyond the specific "Red Flag" laws under discussion is not on topic to the conversation.

hint, hint...
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Old February 27, 2019, 12:16 PM   #49
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To further emphasize what 44 AMP said, 4 posts were deleted as being off topic.
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