huge difference is the leo just transports you, a medical professional does the actual professional assesment and ultimately makes the decision to admit/commit, even if just 48/72 hours.
The 2A and domestic abuse
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huge difference is the leo just transports you, a medical professional does the actual professional assesment and ultimately makes the decision to admit/commit, even if just 48/72 hours.
And in the DV TRO, no one goes to jail AND a court determines if the ex parte order is justified BEFORE it is issued, then again in 72 hours. For mental health ex parte process, it's custody first.
43-1-10. Emergency mental health evaluation and care.
A. A peace officer may detain and transport a person for emergency mental health evaluation and care in the absence of a legally valid order from the court only if:
(1) the person is otherwise subject to lawful arrest;
(2) the peace officer has reasonable grounds to believe the person has just attempted suicide;
(3) the peace officer, based upon the peace officer's own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or the admitting physician's designee;
43-1-10. Emergency mental health evaluation and care.
A. A peace officer may detain and transport a person for emergency mental health evaluation and care in the absence of a legally valid order from the court only if:
(1) the person is otherwise subject to lawful arrest;
(2) the peace officer has reasonable grounds to believe the person has just attempted suicide;
(3) the peace officer, based upon the peace officer's own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or the admitting physician's designee;
OK, so are you trying to claim that
1) ONLY a LEO can request a TRO? Or are you just showing us that there is a statute whereby a LEO can be the one to file a request for a TRO? Are you trying to say a divorce lawyer can't get one issued against his client's spouse without getting help from the police? Because that goes directly against the experience of many people here. And unless you are saying LEO is the ONLY one can request a TRO from a judge then the point that they CAN is moot - unless NO ONE else can. Which we all know is NOT the case.
Here is what Cornell Law has to say
temporary restraining order | Wex | US Law | LII / Legal Information Institute
...notice how it says A PARTY - not a LEO? And how many judges are going to take the risk of ending up on the evening news because they did NOT grant one and something bad actually did happen? Not too many. They are going to err on the side of caution, because like you, they are going to see it as only a "temporary inconvenience" to the accused. Which is an easy opinion to hold - unless you happen to be on the receiving end. The standard of proof is that the "court finds it reasonable to believe" - which is only based on second hand testimony. A much lower standard of proof than what is required for involuntary commitment. That requires first hand knowledge and/or observation by the officer or other evidence he has developed through investigation.
and
2) Are you also trying to claim that ANY of the New Mexico statutes you been specifically quoting above regarding involuntary commitment or TROs in your state are universally true and applicable across all 50 states?
Any fool knows damned well that isn't the case. Your laws in New Mexico don't mean doodley-squat here in Washington. At least the Cornell Law reference I posted is in regards to Federal Law, which is applicable in all 50 states.
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Ah, more Google law practice experience. Good luck.
And there we go.
Get called on your baloney and you have no good answer, so snark becomes your go-to default response.
You are SO predictable.
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So; to sum up:
1. Judges issue TROs, even those that are ex parte. In many states LE must be involved.
2. Temporary restraining orders are not at all long-term; longer term orders require a hearing.
3. If you are not the subject of a protection order the day you make a purchase, the 4473 question doesn't apply to you.
In police work, we'd call it a 'clue' if a person subject to a 72-hour protection order found that he/she suddenly wanted to buy a gun in those 72 hours.
1. Judges issue TROs, even those that are ex parte. In many states LE must be involved.
2. Temporary restraining orders are not at all long-term; longer term orders require a hearing.
3. If you are not the subject of a protection order the day you make a purchase, the 4473 question doesn't apply to you.
In police work, we'd call it a 'clue' if a person subject to a 72-hour protection order found that he/she suddenly wanted to buy a gun in those 72 hours.
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But anyone can ask the judge for one and the standard of proof is VERY low to get the judge to sign off on one.
But once one is granted the accused will have all their guns confiscated until it is lifted or risk being charged for illegal possession of a firearm? At least that is true in many states with "Red Flag" laws. Not sure if that is true of all states, but that has always been my understanding.
Not necessarily. I find another gun I want quite frequently. Just bought another one a couple of days ago. I'm not under any kind of restraining order but if I were, that wouldn't change the fact that I found another I wanted to add to my collection.
That is an assumption and a presumption of guilt on your part. Which is exactly what so many of us are objecting to. People being presumed guilty - even for 3 days - and having to prove their innocence.
That is backwards to the way our justice system is supposed to work.
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There are hundreds of protection orders issued here every yesr; at last count fewer than 25 total red flag orders had been issued here in the years since our law was passed.
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So in NM they don't routinely confiscate a person's guns or tell them they are prohibited from having guns if they are under a PO or RO because someone said they own guns an they are afraid the accused would hurt them?
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Of course not.
Not even if it is a domestic partner accusing them of abuse and of threatening them with a firearm?
If that's the case then, that's certainly a good thing.
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dsf
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That the law is not often used is little comfort. Were there a law which prohibited a private individual's exercise of free speech or compelled self incrimination, or that punishment for tax evasion was stocks in the middle of town, I wouldn't be impressed by the state's explanation that "only a few folks have been treated" as such.
The state can take one's property, freedom and life so long as it satisfies due process. What passes for due process in some Red Flag laws seems remarkably low.
A link to an attorney's recitation of the CA law -
Red Flag Law in California - Here's How It Works
Quite a list of who can petition the court. And the deck seems rather stacked against an individual successfully petitioning for return.
The CA Red Flag law also specifically prohibits the subject of the order from taking legal action against the person(s) who initiated the report.
The FL law was recently found constitutional because the taking was not permanent - it was for "only 12 months".
There may be good reasons for taking away an individual's God given right to self-defense. We should remember that's what's being done. Not just "can't have guns" or "can't go shooting" but prohibiting an individual from using the best tool for saving his life or that of his family. Unfortunately Red Flag laws treat that consequence as unimportant.
We really shouldn't be surprised, considering anti-gunners history of calling handguns "Saturday Night Specials" and semi-auto rifles "assault weapons".
The state can take one's property, freedom and life so long as it satisfies due process. What passes for due process in some Red Flag laws seems remarkably low.
A link to an attorney's recitation of the CA law -
Red Flag Law in California - Here's How It Works
Quite a list of who can petition the court. And the deck seems rather stacked against an individual successfully petitioning for return.
The CA Red Flag law also specifically prohibits the subject of the order from taking legal action against the person(s) who initiated the report.
The FL law was recently found constitutional because the taking was not permanent - it was for "only 12 months".
There may be good reasons for taking away an individual's God given right to self-defense. We should remember that's what's being done. Not just "can't have guns" or "can't go shooting" but prohibiting an individual from using the best tool for saving his life or that of his family. Unfortunately Red Flag laws treat that consequence as unimportant.
We really shouldn't be surprised, considering anti-gunners history of calling handguns "Saturday Night Specials" and semi-auto rifles "assault weapons".
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That would require corroborating evidence.that convinced both the officer and the judge. The red flag law criteria would also have to be separately satisfied.
No one wants to get sued, either for failing to protect a victim (who could be badly injured, raped, or killed) or for violating an innocent party's rights.
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Laws. Constitution. God-given rights.
You cats are so yesterday...
It's all about the feelings, man.
You cats are so yesterday...
It's all about the feelings, man.
To me it is not so much about buying a gun and the 4473. Someone files for divorce and gets a TRO. The person the TRO is on is required to disarm or be disarmed. They are not going to be disarmed for ''just a few days" Unless you believe several months to a year or more as a "few days". As usual, a lot depends on what state you are living in. In some states when issued as part of divorce proceeding they remain in effect until it is final. Plus besides TRO there are permanent restraining orders. I would also bet that in a lot of places one would need to go to court and get it nullified and then get an order to have ones guns returned.
I would also bet a lot depends on financial ability. Some poor working stiff is far less likely to be able to vigorously defend himself against false charges and a well to do person far more apt to quash it guilty or innocent.
On the domestic abuse clause. While I do not support abuse, I do have a serious problem with denying a RIGHT to a person based on a misdemeanor plea made prior to it becoming a disqualifying act. The "Lautenberg Amendment" ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence") was not in effect until 1996, 12 years after the GCA of 1984. Some people may well have just said guilty and paid a fine rather than spend more money fighting the charge or getting it reduced. I would bet the fines for domestic abuse prior to 1984 were not that large and not all that higher from 84 to 96.
What other life time ban exist for a misdemeanor?
Even people with multiple DUIs, and even vehicular homicide get their license back. First offense usually 2-6 months suspension and most states allow for a work permit. This in spite of the fact that in 2021, alone, 13,384 people died in alcohol-impaired driving traffic deaths.
I would also bet a lot depends on financial ability. Some poor working stiff is far less likely to be able to vigorously defend himself against false charges and a well to do person far more apt to quash it guilty or innocent.
On the domestic abuse clause. While I do not support abuse, I do have a serious problem with denying a RIGHT to a person based on a misdemeanor plea made prior to it becoming a disqualifying act. The "Lautenberg Amendment" ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence") was not in effect until 1996, 12 years after the GCA of 1984. Some people may well have just said guilty and paid a fine rather than spend more money fighting the charge or getting it reduced. I would bet the fines for domestic abuse prior to 1984 were not that large and not all that higher from 84 to 96.
What other life time ban exist for a misdemeanor?
Even people with multiple DUIs, and even vehicular homicide get their license back. First offense usually 2-6 months suspension and most states allow for a work permit. This in spite of the fact that in 2021, alone, 13,384 people died in alcohol-impaired driving traffic deaths.
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In Pennsylvania and New Hampshire, a misdemeanor election/voting fraud conviction results in permanent loss of the right to vote. In Ohio, it takes two such convictions . . .
Yeah not all states have the same laws as NM. A big part of my point.
Ex Post Facto comes to mind.
It will definitely be interesting to see how SCOTUS negotiates this obstacle without undermining Bruin/Heller. Many heads will explode on both sides of the isle if they uphold the 5ths ruling.
That's not even slightly true.
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