Wednesday, May 09, 2018

A rubber stamp is not Due Process

One of the things being discussed around the tables at this years NRAAM are "Extreme Risk Protection Orders" (or "Red Flag Laws", if you want to be less overt about it.)

These are laws which allow for guns to be seized by law enforcement based on what seem to be subjective opinions about whether someone might be dangerous or not. 

Note, do, that the guns are seized without an actual crime being committed -- to say nothing of an actual criminal conviction.

Indiana's Red Flag Law is being touted as the model for the nation (side note:  Indiana?  What the hell, Hoosiers?), based solely upon alleged "due process" protections for gun owners.

These "due process" protections involve a two-step process.  First,  judge has to find that probable cause existed for the initial seizure of the guns, if done so without a warrant.  A warrant would require review for probable cause before being issued.

Second, a hearing must be held within 14 days, where the subject can petition to get his seized guns back.

I put "due process" in quotation marks, because I have two questions that no-one seems to be able to answer.

The first is:  How many initial Red Flag Law warrants are turned down by judges for a lack of Probable Cause?  What percentage of warrant-less seizures of guns are immediately reversed by the reviewing judge upon initial review?

Second:  How many -- or what percentage -- of Red Flag law seizures are overturned at the 14-day hearing?

I suspect that the reason I can't answers to those questions is because the answer to both is under the margin of error.  And that is unacceptable.

Gentle Readers, if Indiana judges are rubber-stamping the seizures of lawfully-held guns no matter how piss-poor the probable cause for those seizures are, then "due process" is NOT being observed.

Indeed, due process by rubber stamp is nothing more than mockery of due process.

LawDog

21 comments:

dave said...

This doesn't appear to be far removed from VPO laws, except that it expands the group of people who can make the initial report. I've seen more than a couple of people who've had their rights suspended by a VPO, and more than a couple of lawyers who file VPOs as a matter of routine in domestic cases.

Jeff B said...

They're pushing one of those through here in Colorado, and it passed the House, but appears to be dead in the water when it hits the Senate.

I hope.

Sean D Sorrentino said...

I think we're making a huge mistake pushing the "Due Process" argument. The fact is that our enemies don't give a damn if we get due process. They'd prefer to take guns from everyone without compensation, appeal, or notice. The fact that accused crazy people aren't going to get any real due process is a feature, not a bug to them.

The real problem, at least the only problem that anyone on the other side would actually, possibly, maybe care about is the fact that they're taking weapons from a crazy person but they're not taking the crazy person off the street. They're dumping the guy back on the street, pissed off because his angry wife dropped an "ERPO" on him in the middle of a divorce, with full access to Ice Dog and Ray Ray (or the local gas station) so he can get a new weapon (or a couple gallons of flammable liquid and some matches).

Here's the way to attack these laws. Insist that if someone is adjudged by court to be such a danger that he must immediately be stripped of firearms, he also be placed in a mental health facility for immediate evaluation to see if he's actually a danger to himself or others. It's only fair. It gets him away from anything he could use to cause harm to himself or others and it gets him the help everyone seems to think he needs.

If they can't agree to get the guy some help, they aren't actually concerned that he is in trouble. That's how you can tell that this law is a lie. If they actually wanted to stop crimes from happening, they'd treat the person, not just take any visible weapons.

Dave said...

Actual due process would mean that the accused would be represented at the initial hearing before any order could be granted.

MrGarabaldi said...

Hey Lawdog;

Stuff like this gives me the "willies", you have seen many abuses of the "Due Process", especially if it involved a domestic situation where the wife usually in this case along with the TPO have the guys guns seized because her shark of a lawyer does this stuff because it screws the guy by the court system, if I recall the burden of proof in family court is less than other courts, and the ruling by the family court has the same weight in a hearing.
I don't know what will work, but I do know that this has the potential to far exceed its scope...think "mission creep". How many judges will go for this I don't know.

C. S. P. Schofield said...

The entire court system has been gradually warped away from the idea of 'due process', largely by Progressive busybodies but also by the all too human impulse to pass laws so we can 'get' people we 'know' are guilty of something.

Take the DUI spectrum of offenses. The driver doesn't have to be driving badly, or too fast, or even (in some cases) driving. He can be sitting in his car outside a bar, waiting to feel ok to drive, and a LEO requires him to take a test (which he fails) and he's done for DUI. The cold facts are that the vast majority (I think I saw 90+%. Lawdog probably knows) of drunk driver crashes resulting in death or injury of another person are caused by somebody who has ALREADY been involved in one of more accidents while drunk. So what are the checkpoints accomplishing? By punishing a precursor condition to a crime involving damage to property or persons, they raise money. Period. And MADD? I think all I need to know about them and their agenda is that the woman who founded the group has distanced herself from them.

BTW, I don't drink. Not a moral choice, I have gout.

We have too many goddamned laws that punish people BEFORE they have done something objectively wrong. To protect 'the children' (and others). This way lies madness....and a Police State.

You say you're suing for divorce, your husband hasn't done anything he can be jailed for, but he has guns and you're scared of him? Get a damn gun of your own. Don't have the Man rape the guy's civil rights.

Jeff B said...

RE: previous post about Colorado's pending "Red Flag" law...

https://www.nraila.org/articles/20180508/colorado-gun-control-legislation-dies-in-senate-committee

"Yesterday, the Senate State, Veterans, and Military Affairs Committee voted down House Bill 1436 by a 3 to 2 party-line vote. HB 1436 was the "red flag" bill and would allow family, roommates or household members, and law enforcement to have an individual’s guns taken away without a hearing and little to no due process. The bill allows the confiscation of firearms through ex parte hearings where a person isn't given notice and a hearing. "


Jim MDW said...

I have seen many posts regarding the lack of due process. What I have been wondering is if any of these laws include any type of penalty for malicious misuse. If not, why not?

Old NFO said...

And the other question is, is there any penalty for filing a false report???

Unknown said...

Here in Mi they hand out orders of protection like candy on Halloween. Ang if they get the ERPI here it will be the same.

Clayton Wrobel said...

I don't have a problem with the Red Flag laws with a few caveats:

1. The state has to prove, beyond a reasonable doubt, that the person is a threat to themselves, or others.
2. If they state does not prove this beyond a reasonable doubt, the seized material is returned immediately, i.e. within 1 hour of the ruling.
3. If the state fails to prove the case with a preponderance of the evidence then:
a.) All of the person's court, lawyer, lost wages, and property damages are paid by the state.
b.) The person making the claim is ba5rred from making another Red Flag accusation for a period not less that 5 (TBD) years.
c.) The office that brought the Red Flag charge shall pay a fine, to the person, of not less than $10K, adjusted anually for CPI each year after the law is passed.

There ought to be a way to remove weapons, temporarily, for people that present a clear and present danger, but there must be checks and balances against abuse and these things should only be used when it is a clear and present danger.

pigpen51 said...

I think that Sean has it right. If a person is enough of a danger to themselves that they can't be trusted with guns, then they should not be allowed on the outside with a car, a knife, a club, etc. Then they should be held for an evaluation of their mental competency. Which, if they are found to be competent, should be expunged from their record and their guns returned, and those responsible for the entire affair should be investigated for possible a false report, with some teeth placed in the law to punish those who make such a false report.

Overload in Colorado said...

One other issue in Colorado is that it has required a background check on all firearm transfers. There have been stories reported of difficulties returning firearms to their owners after the police have come into possession of them. An example is a person who got into a car accident and a legal gun was found in the car. After the person was released from the hospital they had an impossible time regaining possession.

KBCraig said...

The answer to both questions is: they will be denied or reversed in about the same ratio of cases where a drug search warrant that relies on a confidential informant is tossed out.

Practically zero.

Jay Dee said...

I have a suggestion. You file a request for such a court order, you get to serve the court order and see that it is enforced.

Nuke Warrior said...

How long before owning a firearm, or merely posting a pro-gun opinion will be used as evidence of "mental instability" justifying seizing your firearms, and placing you in a mental hospital?

In the old Soviet Union, complaining about conditions in the "workers Paradise" could land you in a "mental hospital" where you would be drugged into a coma or tortured (as a medical procedure of course) until you saw the error of your ways and agreed that 2+2=5.

Anonymous said...

What it will take is law suits. If someone, an ex or a family member etc., invokes this process and the police take your guns; calmly go through the process of getting them back and then hire a lawyer to sue the person who instigated it for whatever your losses are plus $5000 or so for false claims against you. If enough people do this maybe it will take care of the problem

Anonymous said...

I wouldn't want to be a law enforcement officer trying to seize a weapon without due process. Sounds like a good way to get yourself dead.

Anonymous said...

I realize the singular of data is not anecdote. None the less, I can give you all an example of the application of Indiana's Red Flag law in Indianapolis, IN, the state capitol. There's a huge gun violence problem there. Not commenting on that either way, just stating a fact. I'm retired now, living in the northwest corner of the state, but at the time in question I practiced law in Indy.

My client's partner had called the cops on her. Making suicidal/homicidal noises, gun in the house, please come, which they did. By the time they got there, she'd progressed from noises to gun in hand. I'm not sure how they got it away from her, but they did, and under the code section in question they took it with them. They left their names, badge numbers, and a receipt for the weapon with the partner. Then my client's partner called me. Don't know what he thought I could do at 2:00 a.m., but people are rarely rational under such circumstances.

So bright and early the next morning I was on the phone to client's therapist, who called client. Why yes indeed, she was off her meds, how could we tell? (Head, meet desk. Desk, head.) So therapist and I, with some serious shoving, got her checked in for 3 days inpatient, during which time the cops filed their required report and warrant hearing was set for Friday. (It was by then Wednesday.)

Friday we walked into court. Prosecutor asked if she was okay. I said yes, she was back on her meds. Prosecutor went and talked to cop. Cop nodded, walked over to me smiling and said he was very glad to hear she was all right. Total lapsed time from seizure to return: 5 days. Actual judicial involvement: 0. Petition for warrant shows withdrawn. The officer had brought the gun with him, and handed it back to me then and there. And that was that. It was about a year after the Red Flag statute was enacted.

ord03 said...

Questions:
How many guns are actually returned after the 14-day hearing?
Does return require a background check for each and every single one?
If seizure involves tossing them in the back of the patrol car, who pays for damages to the firearms, especially to rare or collectable items? Damages to scopes and mounts?
If you have a license, concealed carry or other state-issued firearms license, is that license suspended during that 14 day period?
If you are a LEO or military, does that affect your job in some way? Can you possess NO weapons until after the hearing and exoneration?
What is the enduring record for this in 'the system'?

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