Home Forums Hunting & Shooting Hunter's Campfire Red Flag and due Process?

No

Can't say for sure, but it probably would never happen around here.

My experience is just anecdotal, fellas I know that got hit with EPOs, broad never showed up in court, no penalty, or showed up and lied their ass off.

Even when the judge said he didn't believe their story, there was no penalty for the lies told, on paper or under oath.

But see that’s the kind of stuff I’m talking about. A state rep could poison pill a piece of red flag legislation by putting in amendments for civil and criminal penalties for false accusers, requiring bonds, and that sort of thing.

This is not going to be a fight in Congress. This is going to be a fight at the state and even local levels.

One of my big problems with the red flag laws is that they allow pretty much anyone to make a spurious allegation that results in near-immediate firearms confiscations. So all it will take is for a neighbor to not like you and you'll lose your guns. Or you may have an enemy at work who wants to mess with you. If the laws only allowed immediate family members to make the report, that would be somewhat less offensive.
The nature of these laws, though, is that they start with broad categories of people who can seek the order and then they expand over time (this is what has happened in CA).

Also, anyone who thinks that they really do last only 14 days (or thereabouts) has never seen how courts handle these things. You basically have to prove that you are not a threat, and that's simply not how rights work under the Constitution. The reality is that these orders usually last for months, if not longer, and are very expensive to fight.

I have many other serious constitutional problems with the laws, but the practical application of them is even more problematic.

You must have the hearing within 14 days. That is where the court decides to grant the order or not.

We're talking about two different things.

A poison pill is a good idea for pending legislation, but my efforts are directed towards trying to have the concept of RF laws found unconstitutional.

It would take a federal court decision to have any effect.

The Framers never intended for private individuals to have the power to summon government interference via search or arrest warrants, much less EPO and RF laws.

No that isn’t correct. Traditionally almost all common law crimes required a private citizen to swear out a complaint. Whereupon the power of the state swings into action. And traditionally prosecution for perjury of an accuser, even when it was pretty clear they were lying has been pretty spotty.

And red flag laws, just like protective orders still provide for the 6th Amendment right to confront your accuser. If you contest it, someone has to take the stand and provide testimony.

Not in CA, which will be the state that most other states follow given how draconian the anti-gun laws are in the state. A cop can get the order issued immediately and family members can get them in expedited proceedings. I'm actually in the process of getting statistics from the CA Attorney General (I submitted a public records request about 2 weeks ago) on how many orders are sought and how many are granted, but the rumors are that the orders are almost always granted. And then, they last for up to a year and can be renewed. There's no due process involved, other than on paper, because the courts simply rubberstamp the petitions.

Thats pretty damn scary.

If there is an ex parte emergency order granted, there MUST be a hearing within 14 days. At that point, at that hearing, the accused gets his due process and the order will be denied or granted. If denied, he gets his guns back. If granted, it will be granted for a year or so, depending on the state.

The complaint generates the search/arrest warrant, which is supported by oath by LE, a filtering process which the Framers mandated.

That's why you don't see SW affidavits submitted to a judge with a civilian's signature at the bottom. The LEO recites what the civilian said, but it's LE that vouches for it.

Intended to be a level of protection against false statement by those with a grudge, etc.

This is why I said the due process is only on paper. My public records act request should give me hard data on this, but anecdotal information indicates that the orders are almost always issued. Due process doesn't mean that there is a show hearing where the citizen gets a chance to watch his rights get taken away. There has to be a substantive elements of fairness and deliberation at the hearing, and that doesn't happen with the red flag orders.

Colorado Red Flag law can take a year to hit the courts. Your possessions will not be yours till then and you can prove your innocence.

Good luck with that!!!!

Depends on your jurisdiction. I’ve never lost a protective order hearing. Never.

Do you practice in California? I'm not being snarky, I actually would love to be able to refer potential clients if you have had success fighting these orders. Feel free to DM me if you prefer.

No, obviously not. I practice in three states where the judges have ex wives and guns themselves.

Where do you practice?

This shouldn't be an issue, given we have a Constitution that was designed primarily to protect natural human rights.

My late father/Esq stated that his profession was primarily protected by attorney-politicians who made sure attorneys were necessary and increasingly so by self-serving laws.

He was no slouch ambulance chaser and was highly respected in this State...served 12 years as Chairman of the State Board of Bar Examiners and was one of the drafters of the Bar Exam each year. He would no doubt have clobbered some of your assertions and notions.

I'm not trying to pick a fight. We just don't see eye-to-eye on this issue and the ramifications.

LMAO!!! Ex-wives will be the biggest abuser class in relation to these terrible laws. Having had a few, I know of where I speak.

Why the frick are you talking about the Constitution? That is a dead instrument. Honest Abe ripped it up and wiped his ass with it 150 years ago.

Seriously, we saw how this schit show was going and tried to leave then. But you damned Yankees drug us back in. Now you expect us to give a damn because your states at taking your rights? Go find a map of the states that have red flag laws in place, only one of them is in the South and it has been occupied by the entire state of New York.

I mean, I’m broadly sympathetic, but quit crying about the Constitution. It’s been a dead letter for a Long damned time and most on this board will cheer its destruction when the subject comes up.

Can't disagree with what you've said about the Constitution. Most of my practice is focused on the Constitution, but it might as well be based on a random number generator the way federal courts work.