An interesting piece...theory versus reality. The costs to defend an accusation - including a false claim, i.e., a LIE - in court can be quite substantial.

Republicans Who Support Gun Confiscation Laws Imagine 'Due Process' That Does Not Exist on Paper or in Practice

Here is how the states with "red flag" laws fail to protect the constitutional rights of gun owners.

JACOB SULLUM | 8.7.2019 12:55 PM
REASON

When President Donald Trump endorsed "red flag" laws on Monday, he described them as providing "rapid due process" to people accused of posing a threat to themselves or others before suspending their Second Amendment rights. Sen. Lindsey Graham (R–S.C.), who plans to introduce a bill aimed at encouraging more states to enact such laws, says they should provide "robust due process." But as I note in my column today, due process is neither rapid nor robust under most existing red flag laws, which 17 states and the District of Columbia have enacted. There is little reason to think the situation will improve as more states rush to do something about mass shootings.

Testifying before the Senate Judiciary Committee last March, David Kopel, a gun policy expert at the Independence Institute in Denver, emphasized the importance of procedural safeguards aimed at protecting the constitutional rights of respondents in gun confiscation cases. Kopel's recommendations include requiring that petitions be submitted only by law enforcement agencies after an independent investigation, allowing ex parte orders (which are issued without an adversarial process) only for good cause, limiting them to one week, limiting subsequent orders to six months, requiring clear and convincing evidence, providing counsel to respondents, giving them a right to cross-examine witnesses, letting them sue people who file false and malicious petitions, and giving them advance notice of confiscation orders. Here are some of the ways existing laws fall short of those criteria.

Who can file a petition?

According to a handy summary prepared by the Giffords Law Center to Prevent Gun Violence, just five states (Connecticut, Florida, Indiana, Rhode Island, and Vermont) require that petitions come from police officers or prosecutors. In the other 12 states and D.C., lots of other potentially aggrieved (or well-meaning but mistaken) people, such as blood relatives, in-laws, current and former cohabitants, current and former intimates, physicians, and mental health specialists, can also file petitions. A pending California bill would add employers, co-workers, and school personnel to that state's already lengthy list of potential petitioners.

When are ex parte orders allowed?

Every state and D.C. allow judges to issue gun confiscation orders without giving the respondent a chance to rebut the claims against him. In some states, the standard for such ex parte orders is minimal. New York requires "probable cause" to believe the respondent is "likely to cause serious harm" to himself or others. Other states are stricter. Vermont requires showing by "a preponderance of the evidence" that the respondent poses "an immediate and extreme risk."

How long do ex parte orders last?

The maximum length ranges from a week in Nevada to six months (for "good cause") in Maryland. Fourteen days—twice as long as Kopel's recommendation—is the most common limit.

What is the standard of proof for final orders?

Most states require clear and convincing evidence. But a preponderance of the evidence (any probability greater than 50 percent) is enough in Massachusetts, New Jersey, Washington state, and Washington, D.C.

How long do final orders last?

Orders issued after an adversarial hearing typically last up to a year (twice as long as Kopel thinks appropriate), and they can be renewed. Illinois and Vermont have six-month limits, while Indiana and New Jersey impose no time limit. Instead the respondent has to win back his Second Amendment rights by proving he is not dangerous.

Do respondents have a right to legal representation?

Colorado is the only state that provides counsel to respondents who cannot afford a lawyer or choose not to hire one.

Do respondents get a chance to cross-examine their accusers?

Not necessarily. In some states, Kopel says, "The accuser and witnesses supporting the accuser never need to testify in court, where they would be subject to cross-examination. Instead, persons can simply submit an affidavit."

Do respondents have a civil cause of action against petitioners who lie?

No state lets petitioners sue their accusers for knowingly misrepresenting facts in their petitions. While dishonest petitioners could theoretically face criminal charges, Kopel says, such cases are hard to prove and are almost never brought. He argues that the threat of litigation is necessary as a deterrent to people who would otherwise abuse the system to hurt people they have a grudge against.

Do respondents have advance notice before gun confiscation orders are executed?

In some states, Kopel says, "a respondent never receives notice of anything until
the police show up to confiscate his or her firearms," which "creates an inherently volatile and dangerous situation for law enforcement and the public." (See, e.g., the Gary Willis casein Maryland.) Kopel argues that "the safer approach is to authorize no-notice confiscation only when a court has made specific factual findings about why such an approach is needed."

How do red flag laws work in practice?

The actual performance of red flag laws tends to be worse than the promises on paper. While Indiana notionally requires that a hearing be held within 14 days of a gun seizure, for instance, a 2015 study found that gun owners waited an average of more than nine months before a court decided whether police could keep their firearms. Although Maryland officially requires evidence of an "immediate and
present danger" for ex parte orders, judges issue them in virtually every case.

Even when clear and convincing evidence is required for a final order, the thing to be proven—usually a "significant" risk but in some states a mere "risk," "danger," or "risk of danger"—is vague and undefined. When standards are amorphous, judges are especially likely to err on the side of issuing orders, because they imagine that failing to do so could lead to terrible consequences. The possibility that a respondent will unfairly lose his Second Amendment rights is bound to pale in comparison to the possibility that he will use a gun to commit suicide or murder. That psychological dynamic helps explain why judges in Florida issue final orders 95 percent of the time.

Donald Trump can talk about due process. Lindsey Graham can talk about due process. David French can talk about due process. But when push comes to shove, state legislators will give it short shrift, and so will judges, because they both have strong incentives to cast the net as widely as possible, the better to catch potential mass shooters. Never mind that red flag laws are mainly used to protect people against their own suicidal impulses, or that so far there is no real evidence that they prevent homicides. The point is to do something about mass shootings, whether or not that thing works or produces benefits that outweigh its costs, which in this case consist mainly of constitutional rights unjustly lost.

https://reason.com/2019/08/07/republ...r-in-practice/

Found this last night; pertinent to the current discussion:

Exactly!

Bingo. And it will happen.

The dilemma,

1)ban all weapons (guns, knives, hammers, tomahawks, curling-irons)
2)red flag crazy people

The solution

1)binary, you either ban or not
2)chaos - bureaucratic minions of the state pick & choose the baddies


Sounds like a Lose-Lose :(

I do not advocate violence,, BUT we had one Bunker Hill, there can be others :mad:


PS: Notice the Pine Tree on the flag? It lives on,, To this very day.

What a coinky-dink; I have that very thing (with the paw) framed on the wall right behind me as I type.
:cool:

The definitive aurgument against gun-control!
 

This is the definitive aurgument against gun-control! It's not a unique story, it's just that it happened to a Los Angeles radio talk show host who is also a decorated war veteran married to a former LEO (this is very important). So, he has a voice that can not be ignored.

Brian Suits does a military focused weekly broadcast on KFI in LA. He took over when the previous host, Dale Dye, left to become the Technical Advisor on The Pacific.

Short bio from Wiki: Enlisting in the United States Army Reserve in 1989, he served in Operation Desert Storm as a medic in HHT/2nd Squadron 2nd Armored Cavalry. In 1992, Suits was called up as a California Army National Guardsman in 4bn 160th Infantry in response to civil unrest following the "Rodney King" verdicts. In 1998 he deployed as a member of the Oregon Army National Guard to Bosnia as part of SFOR, the NATO mission to Bosnia. Suits was involved in the ICTY (International Criminal Tribunal for Yugoslavia) investigation of the Croatian militia called "The Jokers." This work is still classified. In 2002, he attended Officer Candidate School and received his commission. As a member of C Company, 1st Battalion, 161st Infantry Regiment, Washington Army National Guard he deployed as part of Operation Iraqi Freedom." "Suits was awarded the Bronze Star Medal and was wounded in action several times and awarded the Purple Heart."

This podcast is of his broadcast last Saturday night where he explains how his and his 10-year-old daughter's lives are melting down because they live in California and especially LA County. It's the first 66 minutes of his show. It's a must hear and hopefully it will be widely disseminated. Even with such a serious subject, he's still very entertaining.

August 17, 2019 A Very Different Episode: https://www.iheart.com/podcast/139-d...lace-28067787/ Just hit the go button at the bottom of the page.

Universal Background Checks
 

Well, I had written a long and concise post, but I timed-out and it was deleted. I will post the short version, now and follow-up. As I respect the experiences and opinions, here, I would like to know your thoughts on universal background checks. In short, should we (gun owners) be okay with or support UBC? What reasons should we oppose them? Thanks.

Not no, but hell no! My current job exposes me to a fair number of security clearance investigations, both my own and others. The inaccuracies, ineptitudes, arbitrary and capricious nature of the judgements or personal animus on the part of the deciding official, difficulties inherent in clearing ones name from the aforementioned, and the lifelong stigma associated with a failure to clear one's name are understandable evils when viewed in the context that obtaining/holding a security clearance is a privilege. These same "understandable evils" become intolerable when they impede the pursuit of an "endowed by their Creator" natural right - access to the tools required to provide for defense of self and others.

Bottom line - UBCs abridge the rights of the righteous and deter not the criminal.

And if my opinion carries little weight, I invite an examination of others' thoughts with respect to the 2nd Amendment and the place of Arms in a free society: https://ammo.com/articles/citizens-owning-guns-quotes

GUN CONTROL ?
 

"MARK MY WORDS" by John Mark. Look it up.

First, UBC doesn't "fix" anything. Anyone who thinks that such a thing is going to keep Tyrone Shoelaces from selling Hi-Points or Kel-Tecs out of the trunk of their car in The City or out of their crack house is deluded. It's important to understand that, in current dialogue, the word "loophole" is defined by aspiring tyrants as "something in law that you get to use that I disapprove of that makes it look to others as if you're engaging in deceitful behavior (e.g., tax "loophole" otherwise known as authorized deduction already in the tax code).

Thus, the myth of the "gunshow loophole." Dealers who pay for & operate booths at a gunshow must still conduct background checks & it's done telephonically, quite easily. To do otherwise completely risks the termination of their business & possible fine and imprisonment. (And if you think the ATF doesn't hawk gunshows I've got some land to sell you...) This leads to my primary objection to UBC.

UBC takes one of the core tenets of being a free person walking the planet and throws it away, that of being able to purchase, own, control and dispose of Private Property. There is almost no other thing that defines freedom as the ability to own private property. One of the aspects of that ownership is the ability to dispose of it, in a simple transaction based on terms agreed upon by 2 free men. UBC turns that on its head and says you must get permission first, and if you must get permission then the property isn't truly yours, nor are you free. You are also then not free to arm your trusted neighbor should the need arise during times of high threat to the community, unless they be one of the "generous exemptions granted by your betters"* such as a relative.

Make your own decision about what's important; just thought I'd offer that.



* I also predict that such laws will get crafted to include sworn & retired law-enforcement personnel, since the drafters of these laws like to get LE on board - just as with carry laws - by making them a special different class of person who also doesn't have to play by the rules everyone else does.

Everyone in here knows, the only real reason for “UBC” or any other “must pass a background check before selling” type law is to have ALL guns registered in a database. Otherwise, how could they “prove” that I sold / gave my neighbor a gun? Registration is the first step in confiscation.......

Yep

I am concerned about what any politician will do.

I will always say the one thing all shooting events (mass or indicidual )have in common is that a PERSON pulled the trigger.

But people are getting sick of the routine. New rules are coming, maybe problems with what and how deep.

At the same time..
How do we stop people before they start shooting?

Any reasonable idea?

Is finding ways to stop people before they start shooting an isolated effort? Is it any more important than figuring out how to stop people before they start raping, before they start driving impaired, before they start stealing, before they start lying under oath, before they start stabbing, before they start...?