First use of red flag law.

[LoboGunLeather]

Yes. You subsequently get a hearing.

Correction: You have a right to have a hearing at some future time, with all legal fees and court costs at your expense. Such hearings are not automatic events; a hearing happens only if you appeal the action which requires filing a civil action in court (not something most of us are capable of producing easily), then waiting until there is time on the docket to schedule the hearing (months, perhaps a year or more), and the state will be represented by attorneys working at public expense while you are responsible for paying your own legal counsel.

We have an attorney who has handled our needs for many years. He does a good job and charges us the "old friends and family" rate of only $275 per hour. I suspect that by the time the case is called in court my legal fees will be based on several hours of research time, time drafting the civil action, perhaps a meeting or two with the attorneys representing the state, plus some secretarial and paralegal time, and court filing fees. Shouldn't be more than a few thousand dollars to reach the point at which I might get my "due process of law" after the fact. At that point all I will have to do is prove by a preponderance of the evidence that I am not mentally ill, deranged, or a danger to myself or others (burden of proof in a civil action is on the petitioner; the state, as respondent, has no obligation to prove anything in a civil case).

I will argue again that "due process of law" must be afforded before any deprivation of life, liberty, or property. When "due process" is kicked down the road and thrown into the individual's lap it can no longer be described as "due process" in any meaningful sense.

 

[BC38]

Colorado has its first use of red flag law the first day it
Took effect
https://www.washingtonpost.com/nati...-law-first-time-one-day-after-it-took-effect/

Anybody surprised?

 

[delcrossv]

These laws still have no provisions in them for NFA items. What will they do when they red flag someone who has legally owned machine guns?

That depends on how many lawyers the respondent can afford.

 

[daglockman]

Correction: You have a right to have a hearing at some future time, with all legal fees and court costs at your expense. Such hearings are not automatic events; a hearing happens only if you appeal the action which requires filing a civil action in court (not something most of us are capable of producing easily), then waiting until there is time on the docket to schedule the hearing (months, perhaps a year or more), and the state will be represented by attorneys working at public expense while you are responsible for paying your own legal counsel.

We have an attorney who has handled our needs for many years. He does a good job and charges us the "old friends and family" rate of only $275 per hour. I suspect that by the time the case is called in court my legal fees will be based on several hours of research time, time drafting the civil action, perhaps a meeting or two with the attorneys representing the state, plus some secretarial and paralegal time, and court filing fees. Shouldn't be more than a few thousand dollars to reach the point at which I might get my "due process of law" after the fact. At that point all I will have to do is prove by a preponderance of the evidence that I am not mentally ill, deranged, or a danger to myself or others (burden of proof in a civil action is on the petitioner; the state, as respondent, has no obligation to prove anything in a civil case).

I will argue again that "due process of law" must be afforded before any deprivation of life, liberty, or property. When "due process" is kicked down the road and thrown into the individual's lap it can no longer be described as "due process" in any meaningful sense.

And then IF you can prove that you are no threat, thousands and thousands of dollars later, you can have your federally protected constitutional second amendment rights restored by the state.

There are still no areas of storage set aside for this either. Where would they store your items for a year once they are taken away? I personally know of people that you would need a decent sized UHAUL to move their firearm collections.

 

[Absalom]

And then IF you can prove that you are no threat, thousands and thousands of dollars later, you can have your federally protected constitutional second amendment rights restored by the state.
....

I’m sure one of these days there will be a case of a red flag order that does represent abuse and unjustified deprivation of somebody’s rights.

The case that started this discussion is not that. In fact, the guy is a poster child FOR red flag laws.

As a reminder:

“Denver police were dispatched to an apartment complex in the city’s southwest, where a 26-year-old man told them he wanted to “off” himself after getting into a fight with his wife and her sister, according to the petition. The man’s wife told investigators he had attempted to strangle her and had brandished a gun during the altercation.”

Y’all’s concern for his rights is touching, but someone could make an argument that everyone would be better off if he’d tried to draw that gun when the cops showed up. He darn better have the burden of proof when it comes to getting his guns back.

 

[Golddollar]

I’m sure one of these days there will be a case of a red flag order that does represent abuse and unjustified deprivation of somebody’s rights.

That has already happened. In Ferndale, MD, the police tried to serve the order on the homeowner at 5:17 AM and he ended up dead. You can look it up.

 

[k22fan]

[...] In fact, the guy is a poster child FOR red flag laws.

As a reminder:

[...] The man’s wife told investigators he had attempted to strangle her and had brandished a gun during the altercation.” [...]

In fact, the case is a poster case for why the red flag law is not needed. The police could have arrested him and the prosecutor charged him with felony domestic assault and use of a firearm committing a felony. Under federal law a conviction for the first crime would have made him ineligible to own or control a firearm. I do not know about Colorado but in Washington a conviction for the second crime brings a mandatory five year sentence that can not be served concurrent with other sentences. If he also had a back up gun in his pocket that's ten years.

 

[BigBoy99]

The whole thing to me sounds like too many ex-Californians have moved to Colorado!

 

[SLCDW]

In fact, the case is a poster case for why the red flag law is not needed. The police could have arrested him and prosecutor charged him with felony domestic assault and use of a firearm committing a felony. Under federal law a conviction for the first crime would have made him ineligible to own or control a firearm. I do not know about Colorado but in Washington a conviction for the second crime brings a mandatory five year sentence that can not be served concurrent with other sentences. If he also had a back up gun in his pocket that's ten years.

This is an interesting thread, but k22fan has the appropriate focus. The concern should be the use of red flag laws as a substitute in situations in which existing criminal laws clearly apply and provide the defendant with greater protections. This is happening because red flag laws provide a shortcut and law enforcement will always take the path of least resistance to their objective. When these red flag laws are debated, the primary concern is abuse by estranged family members, but misuse by law enforcement should also be a concern. That the instant case involves a "poster child" should not provide any solace when the normalization of red flags laws through their use in situations in which they are not necessary because criminal laws apply makes their misuse against the law abiding more likely.

 

[Watchdog]

That has already happened. In Ferndale, MD, the police tried to serve the order on the homeowner at 5:17 AM and he ended up dead. You can look it up.

Every time red flag laws come up for discussion, the November of 2018 Maryland case gets dragged out into the open again as an example of how someone was deprived of their rights and not afforded "due process".

Quoting briefly from just one news source (bold print is mine):

"According to police, two officers serving a new Extreme Risk Protective Order (Red Flag Law), a Maryland protective order to remove guns from a household, shot and killed the man listed on that order.

'Under the law, family, police, mental health professionals can all ask for the protective orders to remove weapons,' said Sgt. Jacklyn David, with Anne Arundel County Police.

That man was identified as Gary J. Willis of same address.

Officials said Willis answered the door while holding a handgun.

Willis then placed the gun next to the door. When officers began to serve him the order, Willis became irate and grabbed his gun.

One of the officers tried to take the gun from Willis, but instead Willis fired the gun.

The second officer fired a gun, striking Willis. He died at the scene."

To read other accounts of this, click here, here, or here. They all say more or less the same thing.

Here's a hint. When cops are at the door and inform you they have a warrant, the last thing you want to do is get angry at them and pick up a gun.

A red flag law didn't kill Gary Willis. His own irrational actions killed him.

 

[daglockman]

The point I am trying to make is it is a irrational situation in CO, or anywhere else to have a law like this on the books. It is not ok at ANY time to have the government take away your constitutionally guaranteed rights from you and have you fight for them to have them restored. I am not, nor should anyone else be comfortable with giving up my 5th and 14th amendment rights. What rights are you comfortable with the government not recognizing? 1st? 4th? 15th and 19th? It is not their right to take them away or suspend them in the first place. In the OP's example, the man in Denver needed to be placed on a 72 hour hold at least for making the statement that he did to be evaluated and then treated responsibly and hopefully appropriately. Taking away his ability to access firearms does nothing to guarantee anyone's safety, except the headline would read that someone was harmed with something other than a firearm. There are countless ways to hurt someone you premeditate to do harm to.
Another irrational situation that is unfolding is that there have been counties that are declaring themselves to be second amendment sanctuary counties, and state law regarding the suspension of said federal rights shall not be enforced there by the local sheriff or law enforcement. The state has responded by saying that state law trumps local law and that they cannot effectively do so. Well, the state has shunned and completely disregarded many federal laws, so why not?

 

[LoboGunLeather]

Every time red flag laws come up for discussion, the November of 2018 Maryland case gets dragged out into the open again as an example of how someone was deprived of their rights and not afforded "due process".

Quoting briefly from just one news source (bold print is mine):

"According to police, two officers serving a new Extreme Risk Protective Order (Red Flag Law), a Maryland protective order to remove guns from a household, shot and killed the man listed on that order.

'Under the law, family, police, mental health professionals can all ask for the protective orders to remove weapons,' said Sgt. Jacklyn David, with Anne Arundel County Police.

That man was identified as Gary J. Willis of same address.

Officials said Willis answered the door while holding a handgun.

Willis then placed the gun next to the door. When officers began to serve him the order, Willis became irate and grabbed his gun.

One of the officers tried to take the gun from Willis, but instead Willis fired the gun.

The second officer fired a gun, striking Willis. He died at the scene."

To read other accounts of this, click here, here, or here. They all say more or less the same thing.

Here's a hint. When cops are at the door and inform you they have a warrant, the last thing you want to do is get angry at them and pick up a gun.

A red flag law didn't kill Gary Willis. His own irrational actions killed him.

Very well written and your point is quite valid. Only argument I would offer is that absent the 'red flag' order the incident would never have occurred. I believe the proper term is "proximate cause".

 

[Absalom]

In fact, the case is a poster case for why the red flag law is not needed. The police could have arrested him and prosecutor charged him with felony domestic assault and use of a firearm committing a felony. Under federal law a conviction for the first crime would have made him ineligible to own or control a firearm....

That is an interesting point.

But, given the fact that the guy would almost certainly be out on bail for a while until his trial on those kind of charges, could his guns be kept away from him until then? Does this vary with the jurisdiction? Can the judge decide this?

 

[Watchdog]

I couldn't access the Washington Post report because of their self-serving pay wall...but I read another report on the incident. Others can read it by clicking here.

Details of the incident read like the script for a soap opera. Those folks definitely have a drinking problem. After reading the report, it sounds to me like that whole family's nuts.

Another report states:

"In this case, the guns were already removed by the Denver Police Department after the man voluntarily turned them over to officers, so the red flag law in this instance is being used to help keep the guns out of his hands and in the Denver Police Property Bureau."

And now? Quoting from one article:

"A hearing has been set for Jan. 16 to determine if the man in this case can have his guns returned or if the temporary protection order will become a mandatory protection order for 364 days."

I suppose it'll be interesting to see what happens.

 

[Watchdog]

These laws still have no provisions in them for NFA items. What will they do when they red flag someone who has legally owned machine guns, or other legally owned items that cannot just be handed over to someone else per federal laws?

Cops seize fully automatic weapons (machine guns, explosive devices, etc.) and other NFA items all the time, and have been doing it before anyone ever even imagined such a thing as a red flag law or ERPO. So what? And now, if seizure is authorized under a red flag law, the firearms can and will be confiscated. Local law enforcement agencies aren't going to stand around nitpicking federal laws and/or BATFE regulations when it comes to seizing NFA items, legally owned or not. They just aren't.

I'm not saying I agree with the policies, just stating a fact, that's all.

 

[4506517]

Wow.

A slippery slope.

And here we are arguing amongst ourselves about it. Bet the antis love it.

Only a few here might have some actual experience with it, and by that I mean local not Federal law enforcement.

Too many people are getting too comfortable with government taking private property NO MATTER what reason is given.

I have seen MANY domestic violence cases dismissed, defendants exonerated, witnesses recant testimony, etc.

Do you really know how hard it is to get back seized property? Have you read about it, or been there in court? Seriously. How many of you?

When it happens to you and your case is dismissed or you're exonerated, then come back and start posting. All this defense of "due process" is laughable. Your "due process" is trampled daily.

Do I have to have a court hearing to take a gun during an encounter? No, Terry doctrine established that. Just because someone has a gun doesnt mean you take it. You know, most of the time I give it back PROVIDED THERE HAS T BEEN A LAW BROKEN.

I really wonder about some of you. Again, I am disappointed in a lot of what I am reading.

 

[biku324]

I've seen at least 10, maybe twice that many of domestic violence victims pounded to permanent disability after officers responding to the call didn't believe them; two I personally know of were beaten to death after the police left without making an arrest.

A firearm or a knife or a 2x2 with a 20 penny nail sticking out of it can all be seized if they are being used in a situation wherein a reasonable, well-trained officer would believe (based on the circumstances and evidence) that these items were going to be used to threaten or injure others. We get paid to approach situations objectively , not approach them with a preconceived opinion.

 

[Absalom]

And here we are arguing amongst ourselves about it. Bet the antis love it.
.

It’s called a discussion. The fact that we can still have those here is one of the reasons the country isn’t going to hell yet. In other bubbles, including other gun forums I occasionally visit, there are plenty of threads of people just going round and round confirming to each other how right they are. In other words, political masturbation, not a discussion.

 

[ladder13]

Wow.

A slippery slope.

And here we are arguing amongst ourselves about it. Bet the antis love it.

Only a few here might have some actual experience with it, and by that I mean local not Federal law enforcement.

Too many people are getting too comfortable with government taking private property NO MATTER what reason is given.

I have seen MANY domestic violence cases dismissed, defendants exonerated, witnesses recant testimony, etc.

Do you really know how hard it is to get back seized property? Have you read about it, or been there in court? Seriously. How many of you?

When it happens to you and your case is dismissed or you're exonerated, then come back and start posting. All this defense of "due process" is laughable. Your "due process" is trampled daily.

Do I have to have a court hearing to take a gun during an encounter? No, Terry doctrine established that. Just because someone has a gun doesnt mean you take it. You know, most of the time I give it back PROVIDED THERE HAS T BEEN A LAW BROKEN.

I really wonder about some of you. Again, I am disappointed in a lot of what I am reading.

Great post. Frogs boiling. Read the 2A section for a real eye opener.

 

[daglockman]

Cops seize fully automatic weapons (machine guns, explosive devices, etc.) and other NFA items all the time, and have been doing it before anyone ever even imagined such a thing as a red flag law or ERPO. So what? And now, if seizure is authorized under a red flag law, the firearms can and will be confiscated. Local law enforcement agencies aren't going to stand around nitpicking federal laws and/or BATFE regulations when it comes to seizing NFA items, legally owned or not. They just aren't.

I'm not saying I agree with the policies, just stating a fact, that's all.

I would agree that local law enforcement confiscates illegally made machine guns and or illegally acquired explosives from time to time, but I have never heard of them taking a legally owned NFA item from someone who is legally in possession of it. Can you cite an instance where this has happened? I have personally witnessed accounts were law enforcement came into contact with somebody that had a legally owned NFA item, were showing the paperwork, had no idea what they were looking at and could have cared less anyway. I have known more than one police officer that have told me that they want nothing to do with NFA type infractions as it usually is more paperwork and problem than they want to deal with, and most of them have no idea how to deal with it anyway. Not something that they deal with on a regular basis as it is a federal issue, not a local issue and they have to defer it to another agency. And as 4506517 stated in his post, I can only imagine trying to get an NFA item back. It would be a complete circus I'm sure.