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Discussion Starter · #1 ·
I understand Florida’s red flag (risk protection order) law is being suggested as a model. It was a gift to us here in Florida from our Republican legislature. I thought I would take a moment and explain a little bit about how it works in the real world, a lot of the news reporting seems slanted one way or the other depending on the reporters.

in Florida, the only one who can do the affidavit/application for the temporary restraining order part is a police officer. He is required to get sworn testimony from the person making the complaint and do an investigation before he considers moving forward and filing something with the court. There is a statute that says making false statements in connection with a risk protection order is a felony. I believe that is disclosed to the person making a complaint.

That is supposed to be the first level of protection for the gun owner. Of course, as with anything, it depends on the personality/competence of the police officer and or his supervisor.

The next thing that happens is the affidavit is submitted to the judge. The judge is required to make certain findings before he does anything. This is usually done within 24 hours of the paperwork being submitted. It’s similar in a way to a temporary restraining order against the wife beater works.

If the judge makes certain findings he must do that by “clear and convincing evidence” that’s a higher standard than in a civil trial but a lower standard than the old “beyond a reasonable doubt” required in criminal cases.

The judge can enter an order that can be a total surprise to the gun owner or the alleged crazy person. It will be a temporary order good for up to two weeks within which period of time the judge is required to set an evidential hearing where the gun owner can come in and present contrary evidence, in other words to defend himself. The reasoning behind the judge making the order in secret as to the gun owner is if the court finds the threat to himself or others to be of an emergency nature kind of like the wife beater thing.

What happens next? The police show up at the door of the firearm owner with the temporary order and basically say, “give us all your guns” and wait for the person to comply. They don’t get to come in with a search warrant and search your home. This is an unavoidable flaw in the system because I would think it’s pretty likely someone would hold back a gun or two but I guess that would apply more to us gun collectors opposed to a guy who has threatened on the Internet to kill people and only has one or two guns.

There’s a big debate here over due process. In reality the government gets to grab your weapons for up to two weeks without notice and without the full hearing. In settings of domestic violence petitions and involuntary commitments for mental problems, these temporary measures have been held constitutional.

The two week hearing where you get to defend yourself can result in the order being extended for one year and then renewed if there is appropriate evidence to renew it for another year. For us collectors, weapons storage would be a big issue and I predict there will be gun babysitters popping up as businesses for this reason.

If sworn testimony is presented that someone did not turn in all their guns, only then a court can enter an order for a search warrant where the storm troopers can come in your home and poke around looking for guns and probably trash the place.

I tried to hit the high points to help folks understand how these laws work at least in Florida. If someone is out to get you, they run a serious risk of being convicted of a felony for providing false information if they use the law as some sort of retribution for something.

The law is designed to have several layers of protection. The first is the police officer who is the only one that can file the paperwork with the court. The second is the Court itself with a little bit of a higher standard of proof required and the third is the two week hearing where you get to defend yourself. As with anything decided by one individual, a citizen is at the mercy of whether or not the police officer is an anti-gun or a pro-gun person and how seriously he views his role. Next, the citizen is at the mercy of the court in the seriousness or prejudice with which the judge makes a decision. Finally, there’s the hearing where the gun owner gets to participate. In the case of someone who has been threatening on the Internet to go out in a hail of bullets or in a blaze of glory, they don’t have much of a chance but if it’s something motivated by an ex girlfriend or something that’s the chance to prove it and keep your guns.

in domestic violence petitions, taking the guns away was as simple as the judge making a checkmark on the form and it’s been that way in Florida for many years.
 

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I understand Florida’s red flag (risk protection order) law is being suggested as a model. It was a gift to us here in Florida from our Republican legislature. I thought I would take a moment and explain a little bit about how it works in the real world, a lot of the news reporting seems slanted one way or the other depending on the reporters.

in Florida, the only one who can do the affidavit/application for the temporary restraining order part is a police officer. He is required to get sworn testimony from the person making the complaint and do an investigation before he considers moving forward and filing something with the court. There is a statute that says making false statements in connection with a risk protection order is a felony. I believe that is disclosed to the person making a complaint.

That is supposed to be the first level of protection for the gun owner. Of course, as with anything, it depends on the personality/competence of the police officer and or his supervisor.

The next thing that happens is the affidavit is submitted to the judge. The judge is required to make certain findings before he does anything. This is usually done within 24 hours of the paperwork being submitted. It’s similar in a way to a temporary restraining order against the wife beater works.

If the judge makes certain findings he must do that by “clear and convincing evidence” that’s a higher standard than in a civil trial but a lower standard than the old “beyond a reasonable doubt” required in criminal cases.

The judge can enter an order that can be a total surprise to the gun owner or the alleged crazy person. It will be a temporary order good for up to two weeks within which period of time the judge is required to set an evidential hearing where the gun owner can come in and present contrary evidence, in other words to defend himself. The reasoning behind the judge making the order in secret as to the gun owner is if the court finds the threat to himself or others to be of an emergency nature kind of like the wife beater thing.

What happens next? The police show up at the door of the firearm owner with the temporary order and basically say, “give us all your guns” and wait for the person to comply. They don’t get to come in with a search warrant and search your home. This is an unavoidable flaw in the system because I would think it’s pretty likely someone would hold back a gun or two but I guess that would apply more to us gun collectors opposed to a guy who has threatened on the Internet to kill people and only has one or two guns.

There’s a big debate here over due process. In reality the government gets to grab your weapons for up to two weeks without notice and without the full hearing. In settings of domestic violence petitions and involuntary commitments for mental problems, these temporary measures have been held constitutional.

The two week hearing where you get to defend yourself can result in the order being extended for one year and then renewed if there is appropriate evidence to renew it for another year. For us collectors, weapons storage would be a big issue and I predict there will be gun babysitters popping up as businesses for this reason.

If sworn testimony is presented that someone did not turn in all their guns, only then a court can enter an order for a search warrant where the storm troopers can come in your home and poke around looking for guns and probably trash the place.

I tried to hit the high points to help folks understand how these laws work at least in Florida. If someone is out to get you, they run a serious risk of being convicted of a felony for providing false information if they use the law as some sort of retribution for something.

The law is designed to have several layers of protection. The first is the police officer who is the only one that can file the paperwork with the court. The second is the Court itself with a little bit of a higher standard of proof required and the third is the two week hearing where you get to defend yourself. As with anything decided by one individual, a citizen is at the mercy of whether or not the police officer is an anti-gun or a pro-gun person and how seriously he views his role. Next, the citizen is at the mercy of the court in the seriousness or prejudice with which the judge makes a decision. Finally, there’s the hearing where the gun owner gets to participate. In the case of someone who has been threatening on the Internet to go out in a hail of bullets or in a blaze of glory, they don’t have much of a chance but if it’s something motivated by an ex girlfriend or something that’s the chance to prove it and keep your guns.

in domestic violence petitions, taking the guns away was as simple as the judge making a checkmark on the form and it’s been that way in Florida for many years.
Thank you for posting this. I will be looking at Colorado red flag laws. And try to umderstand those laws.
 

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The threat of felony prosecution for lying is practically a red herring. Sure they could, like the Fed could prosecute all the people that lie on the 4473 form.
call me skeptical, it's like saying "don't worry about gas prices, Biden could do something to help".
 

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Good write up, Shark. I believe Indiana is the only other red state with red flag laws, and although I don't know the specifics, they seem to be pretty similar.

There’s a big debate here over due process. In reality the government gets to grab your weapons for up to two weeks without notice and without the full hearing.
This is the part I will forever have trouble wrapping my head around. That, and why stop at guns, as has been discussed here in other threads ad nauseam.
 
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President Obama stated on television that “Due Process” was a thorn in their sides. They need to get rid of it to push their agendas. So the Dems will eliminate it if they can. Then it will be where you are guilty and you have to prove you are innocent. You can be convicted on here-say or rumors.
 

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Discussion Starter · #7 ·
That’s why they need, if they’re having these laws, higher evidentiary requirements and severe punishment for abuse.

Due process is still alive in our laws.
 

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I understand Florida’s red flag (risk protection order) law is being suggested as a model. It was a gift to us here in Florida from our Republican legislature. I thought I would take a moment and explain a little bit about how it works in the real world, a lot of the news reporting seems slanted one way or the other depending on the reporters.

in Florida, the only one who can do the affidavit/application for the temporary restraining order part is a police officer. He is required to get sworn testimony from the person making the complaint and do an investigation before he considers moving forward and filing something with the court. There is a statute that says making false statements in connection with a risk protection order is a felony. I believe that is disclosed to the person making a complaint.

That is supposed to be the first level of protection for the gun owner. Of course, as with anything, it depends on the personality/competence of the police officer and or his supervisor.

The next thing that happens is the affidavit is submitted to the judge. The judge is required to make certain findings before he does anything. This is usually done within 24 hours of the paperwork being submitted. It’s similar in a way to a temporary restraining order against the wife beater works.

If the judge makes certain findings he must do that by “clear and convincing evidence” that’s a higher standard than in a civil trial but a lower standard than the old “beyond a reasonable doubt” required in criminal cases.

The judge can enter an order that can be a total surprise to the gun owner or the alleged crazy person. It will be a temporary order good for up to two weeks within which period of time the judge is required to set an evidential hearing where the gun owner can come in and present contrary evidence, in other words to defend himself. The reasoning behind the judge making the order in secret as to the gun owner is if the court finds the threat to himself or others to be of an emergency nature kind of like the wife beater thing.

What happens next? The police show up at the door of the firearm owner with the temporary order and basically say, “give us all your guns” and wait for the person to comply. They don’t get to come in with a search warrant and search your home. This is an unavoidable flaw in the system because I would think it’s pretty likely someone would hold back a gun or two but I guess that would apply more to us gun collectors opposed to a guy who has threatened on the Internet to kill people and only has one or two guns.

There’s a big debate here over due process. In reality the government gets to grab your weapons for up to two weeks without notice and without the full hearing. In settings of domestic violence petitions and involuntary commitments for mental problems, these temporary measures have been held constitutional.

The two week hearing where you get to defend yourself can result in the order being extended for one year and then renewed if there is appropriate evidence to renew it for another year. For us collectors, weapons storage would be a big issue and I predict there will be gun babysitters popping up as businesses for this reason.

If sworn testimony is presented that someone did not turn in all their guns, only then a court can enter an order for a search warrant where the storm troopers can come in your home and poke around looking for guns and probably trash the place.

I tried to hit the high points to help folks understand how these laws work at least in Florida. If someone is out to get you, they run a serious risk of being convicted of a felony for providing false information if they use the law as some sort of retribution for something.

The law is designed to have several layers of protection. The first is the police officer who is the only one that can file the paperwork with the court. The second is the Court itself with a little bit of a higher standard of proof required and the third is the two week hearing where you get to defend yourself. As with anything decided by one individual, a citizen is at the mercy of whether or not the police officer is an anti-gun or a pro-gun person and how seriously he views his role. Next, the citizen is at the mercy of the court in the seriousness or prejudice with which the judge makes a decision. Finally, there’s the hearing where the gun owner gets to participate. In the case of someone who has been threatening on the Internet to go out in a hail of bullets or in a blaze of glory, they don’t have much of a chance but if it’s something motivated by an ex girlfriend or something that’s the chance to prove it and keep your guns.

in domestic violence petitions, taking the guns away was as simple as the judge making a checkmark on the form and it’s been that way in Florida for many years.
The big question for Florida residents is how many crazy people have had there firearms taken and how many people have been convicted of a felony for making false statements to the police? These liberals aren’t afraid of the police and they will use the red flag law to go after people they don’t like. Here in Georgia where I live there are bunches of them that would call the police on you if they hear a gunshot in there neighborhood and that includes hunting season cause this is outside the city. They get on the neighborhood site and cry about the noise and people should not be shooting or owning a gun. It would be very bad for Georgia folks.
 

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Because it's not a criminal proceding I expect the person who is the subject of the judge's order isn't allowed a court appointed lawyer. If that is the case and you can't afford representation then you'll not have legal counsel at your hearing.
 

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If I understand correctly, first the gun owner loses their right to keep and bear arms in a secret hearing where they are not represented.

This denial of rights persists for two weeks, at which time there is a hearing where the gun owner can be represented, but at their own expense.

They've been denied a constitutional right without ever committing a crime, without being accused of committing a crime, have not been arrested, have no counsel, and all in a star chamber process where they are denied a defense. There is no opportunity to confront witnesses, and although the complainant swore out a affidavit, in some jurisdictions the accused never even knows who filed the complaint or based on what...

Vaguely, I recall something like:
"nor be deprived of life, liberty, or property, without due process of law"
"shall enjoy the right to a speedy and public trial"
"to be informed of the nature and cause of the accusation"
"to be confronted with the witnesses against him"
"to have compulsory process for obtaining witnesses in his favor"
"to have the assistance of counsel for his defense."
Well, if they can't erase the 2nd Amendment, I guess they'll just nullify the 5th and 6th amendments the same way they nullified the 10th, then use those to vacate the 2nd.
 

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Mostly, the 14th amendment.
The 4th, the 5th and section 1 of the 14th and probably the principle behind section 7 of Article 1 where the passage of "ex post facto laws" is expressly prohibited.

"Red Flag" laws that allow the confiscation of legally obtained and possessed property for some imaginary crime that has not been committed are in principle the same thing as making laws and then punishing people who violated those new laws before they were made.

None of us wants people who have determined criminal intent to use firearms in the commission of a crime to do so but violating the 2A and private property and privacy rights of everyone as an imaginary prophetic measure to prevent this from happening is unconstitutional in principle as well as fact. It's also just as unlikely as all the other "gun-control" laws to be effective in achieving that goal. Criminals are by definition going to violate the law no matter what it says, and determined criminals are not deterred by such small obstacles as the lack of LEGAL access and possession to firearms.

Unfortunately, progressive-liberals and leftists have already established the legal principle of "thought crime" in the US with their concepts of "hate crimes." "Red flag" laws are an extension of that same kind of thinking and principle. The crime is "wrong think," and the punishment is a life reduced to the level of a state-owned farm animal.
 

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I can see this turning into a situation where it's routinely abused by divorce attorneys to smear a husband, exactly like restraining orders have been for quite some time. Yeah, it's a felony to falsely accuse someone, but who can prove it? Never happens.
 

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Discussion Starter · #19 ·
Those are fair criticisms. It’s a tough deal, if it’s applied to a nut case like the Parkland shooter it’s good, if it’s applied to a legitimate person, it’s bad.

The law is always a balancing act and there is always the potential for abuse. I would hope that law enforcement agencies are smart enough to pick up on the pissed off ex-wife syndrome since you first have to convince a police officer that your complaint is legit.

It would seem most thoughtful people would agree that there are people who are crazy, terrorists, dangerous or planning something and this would be a decent tool if applied only to them. The balancing act is of course, at what cost to an innocent gun owner losing use of his guns for the two weeks.
 

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--snip--
It would seem most thoughtful people would agree that there are people who are crazy, terrorists, dangerous or planning something and this would be a decent tool if applied only to them.
--snip--
...and every single jurisdiction in the United States already has involuntary commitment laws to lock away and force psych evals on people who pose a threat to themselves or others. Those laws follow due process.

Let me ask, if somebody is so dangerous they need to have their guns taken away, why aren't they dangerous enough to have their car taken away, access to knives, the ability to buy bomb-making materials at Home Depot, poison at Wal*Mart, or scores of other potential weapons?

It's not the gun. It's the individual. Taking guns away doesn't stop the individual. The lunatic in Waukesha and this nutcase 16 year old used cars:
 
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