The real danger of red flag laws...

Glocktogo

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In every state in the nation, there are mechanisms with which concerned family members and/or the government can have someone declared mentally incompetent. While not every jurisdiction reports the mentally incompetent to the FBI for inclusion on the NICS prohibited persons list, there's nothing saying they can't. Yet all we hear about is how they can't prevent mentally ill people from buying or possessing guns without these new "Red Flag" laws.

I've seen law enforcement officers on other forums supporting these types of laws, saying Due Process is afforded by the affidavit sworn to a judge and it's no different than getting a warrant on probable cause of a crime. What they fail to mention is the "Due Process" hearing is in absentia and were they actually swearing a warrant for a crime, the warrant would be denied due to lack of probable cause that a crime has been committed.

What they really want is this:

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They want an easy way to circumvent the hard work of proving a case against someone, and that's borne out in Florida where they've had a Red Flag law on the books for 18 months and they've already used it some 2,500 times:

https://www.npr.org/2019/08/21/7528...ample-for-lawmakers-considering-red-flag-laws

Florida Could Serve As Example For Lawmakers Considering Red Flag Laws

Following the shootings in El Paso, Texas, and Dayton, Ohio, Congress is considering a bill that would encourage states to pass red flag laws. Members of Congress may want to study Florida, where it's been in place for a year and a half.

Since it was adopted there, courts have approved some 2,500 risk protection orders. That's nearly five every day, more than any other state. The Florida law allows police, acting with court approval, to temporarily seize weapons from people deemed to be at risk of harming themselves or others.

A new tool

Bob Gualtieri, the sheriff in Pinellas County, Fla., which has issued more than 350 risk protection orders, believes the red flag law is something Florida has needed for a long time. Before, even if someone was found to be mentally ill, he says police couldn't take their guns. This law changes, and gives police a tool for dealing with people "that have said things, that have done things, exhibited behaviors that rise to the level of concern."

Once the order is in place, Gualtieri says, "They can't run out and buy guns, acquire guns. Because you're prohibited from possessing, from owning or purchasing under a risk protection order. So, it's a big deal."

One of the counties that's requested the most risk protection orders is Broward County, where a mass shooting at Marjory Stoneman Douglas High School last year left 17 people dead. In Broward, authorities often seek risk protection orders to block people who may not even own a gun in order to keep them from buying one.

Kristi MacKenzie, a lawyer with Broward's sheriff, said earlier in the day she had gotten a risk protection order for a man who was threatening his girlfriend.

"He was like, 'I'm going to my house. I'm loading up my weapons,'" she explained.

Although his girlfriend didn't believe he had a gun, according to MacKenzie, the sheriff's department secured a risk protection order anyway.

"It leads me to believe [he] might go and purchase one if [he doesn't] already have it," she said.

Predicting future behavior?

Nearly every Thursday, in a Miami courtroom, a judge hears red flag cases.

On a recent Thursday, police officers told Judge Diana Vizcaino they responded in April to a 911 call about a man with a gun at a neighborhood park. When they arrived at the park, they found Bobby Wellons in his car, with a gun. Miami-Dade Police Sgt. Christopher Hernandez told Vizcaino he thinks Wellons made the call to 911, and that he did so for a disturbing reason.

"He stated that he hoped police would kill him by responding to the scene," Hernandez said. "That's why he called."

Wellons told the judge he got down sometimes but wasn't suicidal. The judge listened, but then told him she was approving a risk protection order.

"For these next 12 months," Vizcaino said, "you are not to own or possess any firearms or ammunitions." Wellons told her that he understood.

Jack Tuter, the chief judge in Broward County said, "A lot of this stuff is quite scary about what the defendant is charged with having done."

Tuter said when officers ask for a risk protection order to confiscate someone's firearms, judges rarely say no. While people can challenge the seizure of their weapons, many give them up willingly, knowing it's just for a year.

Tuter supports Florida's red flag law, but said it puts the courts in an unusual position. Judges are being asked to predict a person's behavior in the future.

"You're trying to determine is he going to harm himself or others and should he have a weapon or ammunition? And so it's a decision you're making based on future behavior, which isn't one we do a lot in the court system," Tuter said.

That's a troubling proposition, say defense attorneys. People are being held to account for something they haven't done yet. A risk protection order is reported to an FBI database used for background checks. That may make it harder to get into a school or find a job.

Kendra Parris has represented many clients who have fought, usually unsuccessfully, against risk protection orders.

"The court...what they seem to be doing is, 'Out of an abundance of caution, we'll just go ahead and grant this risk protection order. What's the big deal? It's just the loss of firearms for a year,'" she said. But Parris says there can be long-lasting legal consequences for those who are subject to a risk protection order.

She has filed a case challenging the constitutionality of Florida's red flag statute, arguing that it's too vague and violates a person's right to due process. She also charges that the law is applied in an arbitrary manner, varying widely from county to county. The reasons for that vary. But politics doesn't seem to be a factor.

A cooling off period

The largest number of risk protection orders, more than 380, have been issued in Polk County, an area with no major cities and a population of some 700,000. Perhaps surprisingly, Polk County Sheriff Grady Judd is an outspoken supporter of gun rights.

"Yeah I'm a huge second amendment person," Judd said. "I certainly believe those that are not mentally ill and have not had a felony conviction have the right to possess firearms."

The NRA hasn't actively opposed the red flag law here. Judd, a card-carrying member says the law requires a person to surrender their firearms to police or to a family member who agrees to keep them in a secure location. But it's only temporary. For Judd, that's an important distinction.

"The risk protection order does not allow the government to seize your firearms," he said. "It's more or less a cooling off period."

Elected officials, both Republicans and Democrats, support Florida's red flag law. When the legislature returns in the fall, members will consider expanding it to allow family members, not just police, seek risk protection orders for relatives they believe pose danger to themselves or others.

The big risk comes in two ways. One is where a person is flagged for removal of their rights under the law (I don't consider 12 months to be "temporary") who IS NOT an actual threat to themselves or others, has committed no crime and despite that, the mere act of being reported is enough for a judge to grant the order "out of an abundance of caution". The other risk is mistaken identity, and Florida has already had this happen:

https://townhall.com/tipsheet/bethb...se-of-another-mans-criminal-activity-n2551921

Florida Man Lost His 2A Rights, Thanks To Red Flag Laws And Mistaken Identity

Extreme Risk Protection Orders (ERPOs), commonly referred to as "red flag laws," have been at the forefront of the gun control debate. The idea is simple: if a person is deemed mentally unstable, and a risk to themselves or others, he or she can be stripped of their firearms. Typically, family members, doctors and law enforcement have the power to petition a judge to deem the gun owner mentally unfit to own a firearm, at least for the time being. Some states, like Florida, have already implemented these laws. While they sound great on paper, they have a number of practicality issues. The biggest one is the lack of due process.

Just last week, a man in Florida had his firearms confiscated simply because he had the same name as a criminal. That's right. A man was stripped of his Second Amendment right...because the police failed to differentiate a law-abiding citizen with a thug.

According to Ammoland, Jonathan Carpenter received a certified letter from the Florida Department of Agriculture and Consumer Services saying his concealed handgun permit had been suspended for "acts of domestic violence or acts of repeat violations."

Carpenter was forced to go to the Osceola County clerk's office to have a form filled out stating he wasn't the person law enforcement was looking for. At that point, the clerk instructed Carpenter to speak with the sheriff's office.

The Sheriff’s office supplied Carpenter with a copy of the injunction. In the statement, the plaintiff stated that she rented a room out to a “Jonathan Edward Carpenter” and his girlfriend. She alleged that this Carpenter was a drug dealer who broke her furniture and sold her belongings without her permission. He had a gun, and she feared for her life. She was not sure if the firearm was legal or not.

Carpenter had never met the woman in question and never lived at the address listed in the restraining order. Moreover, other than being white, he looked nothing like the man the terrorized the woman.

The man in question is 5'8. Carpenter is 5'11. The alleged drug dealer is 110lbs. Carpenter is over 200. The man has black hair. Carpenter is completely bald. Last but not least, the man in question is covered in tattoos, and Carpenter only has a few.

Even though it was evident they had the wrong man, Carpenter was forced to hand over his firearms. There was no hearing or any kind of court proceeding.

“The last thing on my mind was me having to turn over my gun,” Carpenter told AmmoLand. “I was upset when the Sheriff told me that I need to surrender my gun before any due process.”

Here's where things get even more ridiculous.

Carpenter's firearms had to remain in police custody until the plaintiff can say, in court, that he's not the man that she filed a complaint against. He'd then have to petition the court to get his firearms back...and he would have to bear the cost. Carpenter will get his day in court later this month.

What's happening to this man is the exact instance Second Amendment supporters have worried about. This very instant is what we've talked about, time and time again. What if Carpenter needed to defend himself between now and his court date? He couldn't, because the government failed him. He's having to prove himself innocent in a country where everyone is supposed to be innocent until proven guilty.

In this case, this man's civil and constitutional rights have been violated by the government, and yet he will likely have no redress for damages because the sheriff's office is acting in accordance with the law. This is unconscionable and intolerable. These laws MUST be challenged and overturned all the way through the Supreme Court. The risk of abuse is far too great and is not an acceptable shortcut in protecting the public.
 

BobbyV

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Isn't already possible to get law enforcement involved in cases where someone is a legitimate threat to themselves or others without red flag laws?

And take appropriate action after an investigation is completed?
 

Tanis143

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This is what scares me as well. I have several family members who are anti-gun (thankfully not my immediate family as we are all gun owners). But all it would take is one of them or even a few friends here locally to call my local police, give some insane story that I've been talking crazy on FB and bam, I'm now fighting to get my firearms back.
 

BobbyV

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This is what scares me as well. I have several family members who are anti-gun (thankfully not my immediate family as we are all gun owners). But all it would take is one of them or even a few friends here locally to call my local police, give some insane story that I've been talking crazy on FB and bam, I'm now fighting to get my firearms back.

I'm about ready to delete all social media . . . I dumped Facebook back in December and haven't missed it one bit.
 

tRidiot

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Isn't already possible to get law enforcement involved in cases where someone is a legitimate threat to themselves or others without red flag laws?

And take appropriate action after an investigation is completed?

Not really. Nothing actually happens. Had many people I have dealt with whom are a legitimate threat to themselves and others. They send 'em away for a few days, they go on some meds, tell the docs and evaluators what they want to hear and they get released - then they end up going off the deep end again in days to weeks. I've seen 'em get violent and threatening over and over and over and over - then end up dead at the hands of the police.

Our society is all about feel-good measures that don't work and do nothing to prevent crime or help mental illness, but doesn't have the balls to do what needs to be done - mandatory medication with monitoring or forcible commitment.
 
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