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I don't live in a "red flag" state

3K views 50 replies 15 participants last post by  SFury 
#1 ·
So far, there have been no mentions of red flag orders that I have heard about here in Utah. That could change, of course, but for the immediate future that appears to be not an imminent concern.

However, I ran across this meme and I would think based up what I have heard and read about red flag orders, this would appear to be true. Those of you who live in states that have red flag orders may be able to shed some light on this subject?

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#4 ·
Utah, like most states does have a civil commitment law, including involuntary commitment and UT's seems to be a fairly reasonable one. This is something we don't talk enough about: All states already have laws to protect against dangerous individuals, but they do it with due process and using medical professionals to make a determination, both of which red flag laws do not.

In UT, if the police or medical personnel consider a person a danger to himself or others, they can file an Emergency Application for Involuntary Commitment that allows them to hold that person for 24 hours. The form requires a police officer to certify the reasons why this person is a danger, what that person has actually done or said to to make him a danger. That officer will be held responsible for those statements.

Within that 24 hours, a judge can be petitioned to extent that hold time until a full hearing with representation can take place. In no place in this process is there anything to do with guns. And it provides a bit of due process in an emergency situation. Personally, I think they should have to get a medical opinion and a judge's sign off also and under UT law, they can, but they are not required to.

The bottom line is every state has these laws, they offer something closer to due process, they require a professional to attest, under signature, that the person in question has actually done something or said something that indicates generousness and they actually protect the community by getting the person off the street. So red flag laws are not necessary and do not provide the best protection for the community! I think we need to improve due process with Involuntary Commitment, but they are a better solution.
 
#5 ·
Jmf552, that was something I did not know about. Thank you.

I have not heard or read about anyone being "civilly committed" since we have lived here. I am sure it has happened, probably up in Salt Lake, but it is not something that I can recall happening within our county or any of the adjoining counties (and I check the news locally every day).
 
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#6 ·
Civil commitment laws used to be used a lot more, but are rarely used anymore. One of the problems is the lack of mental health facilities in which to put the patients. I'll bet most cops are not even aware of them and if they are, they are not encouraged to use them.

FWIW, VA has a program for civil commitment of sexually violent predators. It does not excuse them from criminal prosecution and incarceration. After they are released from the criminal system, they can be re-incarcerated through civil commitment. My daughter used to be on the AG's team that represented the state in those proceedings. The AG has a special team, because local prosecutors are so unfamiliar with civil commitment. Interestingly, VA has a special facility to house these people. But if a gun owner were civilly committed for being dangerous, there would be no place to put him. It is also interesting that, according to my daughter, defense attorneys aren't familiar with civil commitment laws either. They often lose because they treat the case like a criminal proceeding, which it is not, and they get knocked flat on the law by the Assistant AG they are up against.

Red Flag is an attempt to provide an illusion of security for the public while attacking gun owners, without the bother of any real accountability on the part of the complainant. It is both a gun grab, and a way to make gun owners "talk and act like the PC culture wants them to" or suffer the consequences. They don't protect the public from a dangerous person, they just take away some of the tools he might use and leave him even more agitated, without getting any mental health help.
 
#7 ·
Since most people are unaware of existing laws, it's easy to get them to go along with new laws. There's probably a lot of duplication. That's why I recommended to my representatives that existing laws should be reviewed before adding more laws and to get rid of ineffective laws. I doubt that'll happen.
 
#9 ·
The only problem with that meme is that it is long on fear and short on facts. What the originator is betting on is that the vast majority of people will accept it and spread it without going to the trouble of ever looking at the actual laws. Currently there are seventeen states with "red flag" laws on the books.

California,
California Code, Penal Code - PEN § 18140

A law enforcement officer who requests a temporary emergency gun violence restraining order shall do all of the following:

(a) If the request is made orally, sign a declaration under penalty of perjury reciting the oral statements provided to the judicial officer and memorialize the order of the court on the form approved by the Judicial Council.
and
California Code, Penal Code - PEN § 18150
(a)(1) An immediate family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.

(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4 .

(b) A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision (a) of Section 18155 , and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true:

(1) The subject of the petition poses a significant danger, in the near future, of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155 .

(2) An ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition.

(c) An affidavit supporting a petition for the issuance of an ex parte gun violence restraining order shall set forth the facts tending to establish the grounds of the petition, or the reason for believing that they exist.

(d) An ex parte order under this chapter shall be issued or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be issued or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.
Connecticut,
Connecticut General Statutes Title 29. Public Safety and State Police § 29-38c. Seizure of firearms and ammunition from person posing risk of imminent personal injury to self or others

(a) Upon complaint on oath by any state's attorney or assistant state's attorney or by any two police officers, to any judge of the Superior Court, that such state's attorney or police officers have probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person, such judge may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer's custody any and all firearms and ammunition.  Such state's attorney or police officers shall not make such complaint unless such state's attorney or police officers have conducted an independent investigation and have determined that such probable cause exists and that there is no reasonable alternative available to prevent such person from causing imminent personal injury to himself or herself or to others with such firearm.

(b) 
and establishing the grounds for issuing the warrant, which affidavit shall be part of the seizure file.  In determining whether grounds for the application exist or whether there is probable cause to believe they exist, the judge shall consider:  (1) Recent threats or acts of violence by such person directed toward other persons;  (2) recent threats or acts of violence by such person directed toward himself or herself;  and (3) recent acts of cruelty to animals as provided in subsection (b) of section 53-247 by such person.  In evaluating whether such recent threats or acts of violence constitute probable cause to believe that such person poses a risk of imminent personal injury to himself or herself or to others, the judge may consider other factors including, but not limited to (A) the reckless use, display or brandishing of a firearm by such person, (B) a history of the use, attempted use or threatened use of physical force by such person against other persons, (C) prior involuntary confinement of such person in a hospital for persons with psychiatric disabilities, and (D) the illegal use of controlled substances or abuse of alcohol by such person.  If the judge is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, such judge shall issue a warrant naming or describing the person, place or thing to be searched.  The warrant shall be directed to any police officer of a regularly organized police department or any state police officer.  It shall state the grounds or probable cause for its issuance and it shall command the officer to search within a reasonable time the person, place or thing named for any and all firearms and ammunition.  A copy of the warrant shall be given to the person named therein together with a notice informing the person that such person has the right to a hearing under this section and the right to be represented by counsel at such hearing.
Deleware
Delaware Code Title 10. Courts and Judicial Procedure § 7702. Commencement of action;  procedure
(a) A petitioner may request relief under § 7703 or § 7704 of this title by filing an affidavit or verified petition.
and
Delaware Code Title 10. Courts and Judicial Procedure § 7703. Emergency hearings
(a) A law-enforcement officer may request an emergency lethal violence protective order by filing an affidavit or verified petition in Justice of the Peace Court that does both of the following:
and
Delaware Code Title 10. Courts and Judicial Procedure § 7704. Nonemergency hearings
(a) A petitioner may request a lethal violence protective order by filing an affidavit or verified petition in the Superior Court that does both of the following:
Florida
1. Allege that the respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, and must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent;
Indiana
Indiana Code Title 35. Criminal Law and Procedure § 35-47-14-2
Sec. 2 . A circuit or superior court may issue a warrant to search for and seize a firearm in the possession of an individual who is dangerous if:

(1) a law enforcement officer provides the court a sworn affidavit that:
Marlyand
§5–602.

(a) (1) A petition for an extreme risk protective order shall:

(i) be signed and sworn to by the petitioner under the penalty of perjury;
Massachusetts
Section 131R. (a) A petitioner who believes that a person holding a license to carry firearms or a firearm identification card may pose a risk of causing bodily injury to self or others may, on a form furnished by the court and signed under the pains and penalties of perjury, file a petition in court.
Nevada
Sec.21.1.A person shall not file a verified application for an ex parte or extended order:
(a)Which he or she knows or has reason to know is false or misleading; or
(b)With the intent to harass the adverse party.
2.A person who violates the provisions of subsection 1 is guilty of a misdemeanor
New Jersey
A petitioner may apply for relief under this section in accordance with the Rules of Court.

b. A petition for a temporary extreme risk protective order shall

include an affidavit setting forth the facts tending to establish the grounds of the petition
, or the reason for believing that they exist, and, to the extent available, the number, types, physical description, and locations of any firearms and ammunition currently believed by the petitioner to be controlled or possessed by the respondent.

c. The court shall not charge a fee to file the petition.

d. The court, before issuing a temporary extreme risk protective order, shall examine under oath the petitioner and any witness the petitioner may produce. The court, in lieu of examining the petitioner and any witness, may rely on an affidavit submitted in support of the petition.
New York
3. THE APPLICATION OF THE PETITIONER AND SUPPORTING DOCUMENTATION, IF ANY, SHALL SET FORTH THE FACTUAL BASIS FOR THE REQUEST AND PROBABLE CAUSE FOR ISSUANCE OF A TEMPORARY ORDER. THE COURT MAY CONDUCT AN EXAMINATION UNDER OATH OF THE PETITIONER AND ANY WITNESS THE PETITIONER MAY PRODUCE.
Oregon
(3) The petition for an extreme risk protection order must be supported by a written affidavit signed by the petitioner under oath, or an oral statement taken under oath by the petitioner or any other witness the petitioner may produce.
Rhode Island
(e) A petition for an extreme risk protection order must be supported by a written affidavit signed by the petitioner under oath. The petitioner may produce sworn statements or testimony of other witnesses to support the petition.
Vermont
(a) A State's Attorney or the Office of the Attorney General may file a petition requesting that the court issue an extreme risk protection order prohibiting a person from purchasing, possessing, or receiving a dangerous weapon or having a dangerous weapon within the person's custody or control. The petitioner shall submit an affidavit in support of the petition.
Washington
(4) A petition must:
(a) Allege that the respondent poses a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, accessing, or receiving a firearm, and be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent;
So that bit about not being able to do anything about someone lying to get one is completely FALSE. In some jurisdictions perjury is punishable by up to ten years in prison.

But of course facts like that don't support the very scary narrative some want us all to believe.
 
#10 ·
Well, that is assuming the local DA chooses to actually prosecute. Oftentimes that decision, makes the clauses mentioned by @mcp1810, meaningless. Just like the rather strict federal laws that almost never get enforced that would keep felons in prison for just being in the possession of ammunition, not to mention an actual firearm.

For people to be concerned about Red Flag laws, only makes sense. There are too many laws on the books to actually enforce them. So, prosecutors get to pick and choose when/how to enforce the law. A tragic situation.

The question is, how many false claims have actually been prosecuted? That information is needed to show whether or not the concerns are valid or not. They also only apply to each individual district covered by the lead DA. When the lead DA changes, then all bets are off again...
 
#12 ·
I know of one case where an 8 year old was false flagged. If that doesn't show how bad the law is in that state, then what will?

Here is an article back from October about the bad Florida law. It highlights what can happen when an elected official abuses their power. The Sheriff of Polk County isn't someone who should be in power. His overzealous reaction to situations should frighten everyone. He's a lit powder keg jumping to the worst conclusion due to a lack of common sense.

Just think of it, 20% of the uses of the law were against children who CANNOT legally posses a gun. Sure, their parents can, but the red flag was not used on them...
 
#15 ·
Actually the request for the eight year old was denied.
From the story you linked:
The judge denied the order against the boy.
And from the local ABC station,
The judge denied the order against the elementary school student, but the I-Team found Polk County has successfully issued more than 400 red flag gun orders against people deemed a danger to themselves or others – including 20% involving children.
https://www.abcactionnews.com/news/...-face-gun-ban-under-floridas-new-red-flag-law
So do we care about the truth?
Yes, an order was applied for. But the judge refused to issue it! How are they defining "children" ? Are they using the old Handgun Control Inc standard of under twenty five years old as being children?

And as far as minors not being able to legally possess firearms you apparently do not know Florida law.
From 790.17
(2)(a) A person may not knowingly or willfully sell or transfer a firearm to a minor under 18 years of age, except that a person may transfer ownership of a firearm to a minor with permission of the parent or guardian.  A person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082 , s. 775.083 , or s. 775.084 .
From 790.22
(3) A minor under 18 years of age may not possess a firearm, other than an unloaded firearm at his or her home, unless:

(a) The minor is engaged in a lawful hunting activity and is:

1. At least 16 years of age;  or

2. Under 16 years of age and supervised by an adult.
So what do we know now? No red flag order was ever issued for an eight year old and yes, minors can own guns in Florida.
 
#13 ·
Red Flag laws violate most of the Bill of Rights.

Anyone that supports Red Flag is supporting the trashing of the Bill of Rights.

It violates the right to free speech.
It violates the right to bear arms and is an infringement.
It violates the right of the people to be secure in their property.
It violates the right that states No person shall be held to answer for a capital or otherwise infamous crime unless of presentment of indictment of a Grand Jury.
It violates the right to a public trial without delay, the right to a lawyer, the right to an impartial jury and the right to know who your accusers are and the nature of charges against you.
It violates the right to a jury by trial. Red Flag Laws assume that you are guilty of something.
It violates the right of the people which states that certain rights shall not be construed or disparage others retained by the people.

Are we supposed to feel better because some states make it unlawful for someone to purger themselves?

Tell me how often that gets enforced?

The list of abuses grows longer with each day.

Anyone that supports Red Flag Laws is ignorant of human nature, history and all common sense.

As any lawyer or judge will tell you in court...ignorance of the law is NO EXCUSE.
 
#14 ·
@mcp1810:

Those rights of recourse are AFTERWARDS.

How many complainants have been prosecuted for false claims?

As many legislatures rush to write more laws, the meme may be accurate! It may be exactly correct on facts!

@HotGuns summarized my thoughts on this succinctly, as well as @jmf552, both of whom have spent time significant on this issue

FIGHT against RFL!
 
#17 ·
How many false claims can anyone show have taken place? Let's see some verifiable numbers and sources please.

All I have seen so far on the issue is a bunch of misinformation and hype. No different than the doom and gloom from the other side about blood in the streets when states started issuing carry licenses. Long on fear mongering and short on facts.
 
#16 ·
@mcp1810: A problem with the law citations in your post is the low standard of proof that petitioners are required give. They don't have to attest that you have actually done anything or said anything threatening. All they have to do is tell a judge your behavior is erratic and/or they think you are a danger to yourself or others. How can they be prosecuted for a false statement when they are not required to present facts, only opinions?

Even the ACLU has a problem with red flag laws. That should tell you something. One problem they cited (not the only one) was the possibility that police could use red flag laws to get around protections against search warrants. If the police want to search someone's house, they have to present evidence before a judge that shows probable cause that there is evidence of a crime in that person's house. If they don't have the evidence, they don't get the warrant. But with red flag, they can say, "this person is acting strange and we think he might be a danger to himself or others." No hard evidence required. And how could you ever prove they lied in their opinion that the person was acting strange and that led them to "think he might be a danger?" That gets them into the house, were if they run across anything else that is illegal, they can use it. Easier than due process.
 
#18 ·
If I have time tomorrow I will go through the laws and provide the specific information each state requires.
It is apparent from this post that you have not actually read many (if any) of them.
As far as the ACLU they originally opposed Connecticut's law but after revision they are now neutral on it.
 
#19 ·
Connecticut
(b) A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant, which affidavit shall be part of the seizure file. In determining whether grounds for the application exist or whether there is probable cause to believe they exist, the judge shall consider: (1) Recent threats or acts of violence by such person directed toward other persons; (2) recent threats or acts of violence by such person directed toward himself or herself; and (3) recent acts of cruelty to animals as provided in subsection (b) of section 53-247 by such person. In evaluating whether such recent threats or acts of violence constitute probable cause to believe that such person poses a risk of imminent personal injury to himself or herself or to others, the judge may consider other factors including, but not limited to (A) the reckless use, display or brandishing of a firearm by such person, (B) a history of the use, attempted use or threatened use of physical force by such person against other persons, (C) prior involuntary confinement of such person in a hospital for persons with psychiatric disabilities, and (D) the illegal use of controlled substances or abuse of alcohol by such person. If the judge is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, such judge shall issue a warrant naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer of a regularly organized police department or any state police officer. It shall state the grounds or probable cause for its issuance and it shall command the officer to search within a reasonable time the person, place or thing named for any and all firearms and ammunition. A copy of the warrant shall be given to the person named therein together with a notice informing the person that such person has the right to a hearing under this section and the right to be represented by counsel at such hearing.
Florida
(e) A petition must:
1. Allege that the respondent poses a significant danger of causing personal injury to himself or herself or others by having a firearm or any ammunition in his or her custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, and must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the respondent;
Indiana
(1) a law enforcement officer provides the court a sworn affidavit that:

(A) states why the law enforcement officer believes that the individual is dangerous and in possession of a firearm;  and

(B) describes the law enforcement officer's interactions and conversations with:

(i) the individual who is alleged to be dangerous;  or

(ii) another individual, if the law enforcement officer believes that information obtained from this individual is credible and reliable;

that have led the law enforcement officer to believe that the individual is dangerous and in possession of a firearm;


(2) the affidavit specifically describes the location of the firearm;  and

(3) the circuit or superior court determines that probable cause exists to believe that the individual is:

(A) dangerous;  and

(B) in possession of a firearm.
Maryland
(a) (1) A petition for an extreme risk protective order shall:
(i) be signed and sworn to by the petitioner under the penalty of perjury;

(ii) include any information known to the petitioner that the respondent poses an immediate and present danger of causing personal injury to the respondent, the petitioner, or another by possessing a firearm;

(iii) set forth specific facts in support of the information described in item (ii) of this paragraph;

(iv) explain the basis for the petitioner’s knowledge of the supporting facts, including a description of the behavior and statements of the respondent or any other information that led the petitioner to believe that the respondent presents an immediate and present danger of causing personal injury to the respondent or others;
Massachusetts
A petition filed pursuant to this section shall:

(i) state any relevant facts supporting the petition;

(ii) identify the reasons why the petitioner believes that the respondent poses a risk of causing bodily injury to self or others by having in the respondent's control, ownership or possession a firearm, rifle, shotgun, machine gun, weapon or ammunition;
Nevada
3. A verified application filed pursuant to this section must
include, without limitation:
(a) The name of the person seeking the order and whether he
or she is requesting an ex parte order or an extended order;
(b) The name and address, if known, of the person who is
alleged to pose a risk pursuant to subsection 1 or 2; and
(c) A detailed description of the conduct and acts that
constitute high-risk behavior and the dates on which the high-risk
behavior occurred.
New Jersey
b. A petition for a temporary extreme risk protective order shall include an affidavit setting forth the facts tending to establish the grounds of the petition, or the reason for believing that they exist, and, to the extent available, the number, types, physical description, and locations of any firearms and ammunition currently believed by the petitioner to be controlled or possessed by the respondent.
New York
6341. APPLICATION FOR AN EXTREME RISK PROTECTION ORDER. IN ACCORD-
ANCE WITH THIS ARTICLE, A PETITIONER MAY FILE A SWORN APPLICATION, AND
ACCOMPANYING SUPPORTING DOCUMENTATION, SETTING FORTH THE FACTS AND
CIRCUMSTANCES
JUSTIFYING THE ISSUANCE OF AN EXTREME RISK PROTECTION
ORDER.
Oregon
(4)In determining whether to issue an extreme risk protection order, the court shall consider the following:

(a)A history of suicide threats or attempts or acts of violence by the respondent directed against another person;

(b)A history of use, attempted use or threatened use of physical force by the respondent against another person;

(c)A previous conviction for:

(A)A misdemeanor involving violence as defined in ORS 166.470 (Limitations and conditions for sales of firearms);

(B)A stalking offense under ORS 163.732 (Stalking) or 163.750 (Violating a court’s stalking protective order), or a similar offense in another jurisdiction;

(C)An offense constituting domestic violence as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290);

(D)Driving under the influence of intoxicants under ORS 813.010 (Driving under the influence of intoxicants) or 813.011 (Felony driving under the influence of intoxicants); or

(E)An offense involving cruelty or abuse of animals;

(d)Evidence of recent unlawful use of controlled substances;

(e)Previous unlawful and reckless use, display or brandishing of a deadly weapon by the respondent;

(f)A previous violation by the respondent of a court order issued pursuant to ORS 107.716 (Hearing) or 107.718 (Restraining order);

(g)Evidence of an acquisition or attempted acquisition within the previous 180 days by the respondent of a deadly weapon; and

(h)Any additional information the court finds to be reliable, including a statement by the respondent.

(5)(a) The petitioner has the burden of proof at the ex parte hearing.

(b)The petitioner may appear in person or by electronic video transmission.

(c)The court may continue a hearing under this section upon a showing of good cause.

(6)(a) The court shall issue an extreme risk protection order if the court finds by clear and convincing evidence, based on the petition and supporting documentation and after considering a statement by the respondent, if provided, that the respondent presents a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person. The court may not include in the findings any mental health diagnosis or any connection between the risk presented by the respondent and mental illness.
Rhode Island
(d) A petition must state the specific statements, actions, or facts that support the belief that the respondent poses a significant danger of causing imminent personal injury to self or others by having in their custody or control, or by purchasing, possessing, or receiving, a firearm.
Vermont
(3) The affidavit in support of the petition shall state:

(A) the specific facts supporting the allegations in the petition;
Washinton
(4) A petition must:
(a) Allege that the respondent poses a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, accessing, or receiving a firearm, and be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent;
Gee, what is the standard for an arrest? Probably cause. So it looks like a lot of these (not all of them I grant you) require a judge to be convinced to the same level as they would to have you taken into custody for a crime.
And I see a whole bunch of requirements for "specific statements or actions" in the filings.

I challenge anyone to show an actual law that allows an order to be issued just because someone says a person "is acting strange".
 
#22 ·
Connecticut
Florida

Indiana

Maryland
Massachusetts

Nevada
New Jersey
New York
Oregon
Rhode Island
Vermont

Washinton


Gee, what is the standard for an arrest? Probably cause. So it looks like a lot of these (not all of them I grant you) require a judge to be convinced to the same level as they would to have you taken into custody for a crime.
And I see a whole bunch of requirements for "specific statements or actions" in the filings.

I challenge anyone to show an actual law that allows an order to be issued just because someone says a person "is acting strange".
Red flag laws already have been abused. Here is just one example.

https://www.google.com/amp/s/www.th...g-and-police-confiscate-a-relatives-guns/amp/
 
#21 ·
@mcp1810: Thanks for your research, because it all proves my point and for using the term "probable cause" because I think it shows, that with all due respect, you do not understand the term.

In Brinegar v. United States, the U.S. Supreme Court defines probable cause as "where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime B]is being committed[/B]. Is being committed, NOT might be committed. The majority opinion stated that this definition of probable cause "is a practical, nontechnical conception affording the best compromise that has been found for accommodating [the] often opposing interests in safeguarding citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime and in giving fair leeway for enforcing the law in the community's protection..."

So the use of "probable cause" in the laws you cited do not meet that test. They do not describe any behaviors, actions or facts that lead to a conclusion that a person has committed any crime, or has even threatened to commit a crime. So it is a misuse of the term. CT and OR list a bunch of past behaviors, which are a laundry list of psychological theories about prior behaviors violent people sometimes have. They are not proof that someone has committed a crime, or even is about to. What they do not do is specifically define the crime or tort the person is being charged with. Some say, "specific facts." What specific facts? A good law says what those specific facts need to be to meet the test of the law.

There are some clear departures from the Constitution and the common practice of law in all the red flag laws you cited.
  • Presumption of innocence: This is a cornerstone of American justice, as well most legal systems in the world. You are innocent until proven guilty of an actual crime. Red flag laws say you are dangerous, which is not a crime, per se. And they say you are dangerous if a judge thinks you are dangerous, not because of anything specific that bears directly on your planning to commit a dangerous act.
  • Full due process: The ability of a defendant to be present at the proceedings, confront his accusers, be represented by an attorney before a judgement has been made. Red flag laws do not provide any of these. There are exceptions for ex parte due process, but they are severely limited in out justice system. Red flag laws do not seem to limit ex parte very much at all. In fact, the make it difficult, and expensive, for someone who has been red flagged to have a fair hearing. I read that defending against a red flag can cost around $10,000 to $15,000, win or lose. All this for not having done anything!
  • The determination of mental instability based on expert witnesses. Generally, any action taken against someone who is declared mentally unfit has to be preceded by an examination of the person by a psychological professional using standard assessment techniques. Red flag laws do not provide for this.
Add to that, these laws don't really protect the public. All they do is have the cops come take all the guns the person has that they can find. It does not take other weapons. And if the subject is dangerous, it leaves him in a more agitated state. That is simple logic and common sense, not biased research.

If red flag laws worked, I will tell you something that would work better. We know that the people most likely to commit violent crimes are: People who have committed them before and people who are in gangs, especially people who are in drug-related gangs. Those kinds of people are many more times likely to commit violence than the mentally ill. Why don't we pass a law that that says that if you are in a gang and you have a previous conviction for violence, the cops can come raid you place and take all the guns. Why? Because there is no way that would fly in court and there would be a huge public outcry about "profiling." Well, red flag laws have the same problem.
 
#40 ·
What you fail to grasp with your SCOTUS citation is that the only reason "probable cause" was related to a crime in that context is because it was a criminal case. "Probable cause" is not dependent on any criminal act. If I find cat turds on the floor in my son's room I can have reasonable suspicion of any of our cats. If I find them and also find that one (and only one) of the cats got locked in his room all day I have probable cause to believe it was that particular cat.

What escapes most people is that these are civil proceedings, not criminal ones. In civil proceedings the burden of proof is traditionally lower than probable cause. Usually all that is needed is a "preponderance of the evidence" which is 50.000001% What petitioners are tasked with is meeting higher burden of proof than for the vast majority of civil cases, and what they are attempting to show probable cause of is that the respondent is a danger to themselves or others.

If you note, most of the laws cited use the word "shall" in them. "May" and "shall" have very specific meanings in law. The use of the word "may" indicates that the party involved has some discretion and are free to use their own judgement. The use of the word "shall" indicates no discretion is involved. It is a command. In the Connecticut statute it states "The Judge shall consider". What follows is the exact criteria judges in the state are bound by law to use when they receive an application for an order. The use of the word "facts" in law also have specific meaning. In simple terms facts are facts. They are not opinion or speculation. If an application requires a statement of facts, that means a statement of things a person has actually done or said. It can also include such things as who else lives with the respondent, any known criminal history, any known medical or psychological issues, known weapons the person owns.


A statement of facts may be " At the above stated date and time Mr John Q. Public did state that "Pod People" were taking over the planet and that he intended to save the world by shooting them all with his Master Blaster rifle. Mr. Public is known to have purchased a Master Blaster 5,000 and 10,000 rounds of ammunition for it in the last week. The rifle is kept in a guitar case under his bed and the ammunition is concealed in cereal boxes in his kitchen pantry."

A statement of facts is not " I think Mr John Q. Public is a whack job and he was talking crazy stuff. He wears one of those red hats so I bet he has a bunch of guns too."
 
#23 ·
Red flag laws were invented for, and are used for, harassing gun owners, pure and simple.

If they were, as touted, for safety, for preventing someone from doing harm to themselves or others, why are only guns removed? We've seen many instances of killings done with knives, axes, bats, cars, gasoline, ropes, pretty much everything else that's left in the victim's home. And several of those things have been used in mass killings.
 
#26 · (Edited)
Abuses example: Elderly Crossing Guard

More later.


National Review

During the first nine months after Florida passed its red-flag law last year, judges granted more than 1,000 confiscation orders. In the three months after Maryland’s law went into effect on October 1, more than 300 people had their guns confiscated. In one case in Arundel County, a 61-year-old man died when the police stormed his home at 5 a.m. to take away his guns. Connecticut and Indiana, which have had these laws in effect for the longest time, have seen increasingly large numbers of confiscation orders.
So we're to believe 1,000 orders in Florida stopped 1,000 mass shootings?

Arundel County
 
#27 ·
#29 ·
A lot of RFL supporters are missing the bigger picture.

Today it is being passed as a necessary measure to ensure the safety of the public.

Whats it gonna be a few years from now? Illinois is already proposing using social media posts to support Red Flag laws. Who is gonna determine what an offensive post is? The same officials that are denying the entire city of Chicago their Second Amendment rights? Socialist whackjobs that ignore the fact that Chicago has the highest murder rate in the country?

Think they are being abused now? Wait 10 years from now when the law has been amended to include farting in public because it's not about safety or any kind.

It's about getting their foot in the door for more control and any so-called gun owner that supports that is part of the problem.
 
#31 ·
You have already posted the laws. It is obvious that there is no legal definition of being a danger, and even the suggestions in the OR and CT laws are only psychological theories that prove nothing, so it is up to the judge. There is nothing you've posted that prohibits it, so it could happen. Because if judges can do something, some of them will. Anyone who doesn't believe that hasn't been paying attention.

You want an example? The first guy who was red flagged in Florida. (Not the guy who was reported on Fox News recently. He was not actually the first.) He made no threats, had no history of violence, or substance abuse and never bothered anyone. But he reported hearing voices and said the thought people were watching him. He was acting strange. So they red flagged him.

So you post up and show where a judge is prohibited from interpreting strange behavior any way he likes. Or post up and show where a judge or a complainant has actually gotten in trouble for making a false complaint. You seem to have confidence in the good will of the legal system that is not supported by experience.
 
#34 · (Edited)
A (admittedly quick) search seems to support the notion that very few instances of perjury are prosecuted.
 
#35 ·
I have no doubt that red flag laws will be misused. That's human nature. And I'm sure there will be judges--friendly, well-intentioned, activist judges--who will misuse their power and authority in hearing red flag referrals.

My hope is that such incidents will be used to challenge red flag laws at the SCOTUS level and get them either repealed or significantly curtailed. Pound enough judges and I think red flag laws can be controlled, maybe even used wisely. That's my hope.

But.......as my old commander used to say...."hope is not a plan."
 
#39 · (Edited)
I can only guarantee you one thing. My ex would have lied under oath to abuse a red flag law on me, no question in my mind. She defrauded the IRS, the state welfare system,etc. She got a restraining order on me so I could not drop in to see the kids when her new beau was around. She claimed I "carried" a gun, which I open carried at work for shooting Grouse (A single six .22). The cop who showed up to issue it was some nervous young kid who I swear would have shot someone if they farted. Why? He read I carried a gun. Red flag laws are the worst unconstitutional idea that the loons ever hatched. Anybody thinking otherwise is a willing sheep being lead to slaughter.
 
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