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Red Flag Law in Florida costs man his guns

Discussion in 'Legal' started by FlSwampRat, Aug 19, 2019.

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  1. jdc1244

    jdc1244 Member

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    This doesn’t have anything to do with Florida’s ‘red flag’ law – the article acknowledges as much:

    “Although this isn’t technically a risk protection order, many think cases like this highlight how red flag laws can be misused to disarm innocent people.”

    What ‘many think’ isn’t fact or the truth – the article’s premise is dishonest and misleading.
     
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  2. Mowgli Terry

    Mowgli Terry Member

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    You point is well made. Errors happen so lets trash these laws and enact no more. Right? Under no circumstances should firearms be taken from the owner?

    Come to think of it, how is the issue of firearms handled in domestic abuse incidents. How do the police respond. What are the concerns. What happens to the guns?
     
  3. earlthegoat2

    earlthegoat2 Member

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    The bigger and more complicated government gets and the greater number and added complexity that impending new laws are certain to be, the more things like this are going to happen and the less the perpetrators are going to care about it because of how complex it is.

    Bigger government equals bigger corruption equals oppressed populace.
     
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  4. FlSwampRat

    FlSwampRat Member

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    No, they broke laws and as such should be flagged in NICS. Just as domestic violence is a non-felonious block, communicating death threats to any number of people should be a block as well.
     
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  5. Speedo66

    Speedo66 Member

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    Once you've had a protective order issued against you in a domestic violence situation, your gun rights are pretty much gone.

    Re: red flag laws, if a case comes before a judge, do you think he or she is going to risk their quest for reelection by taking a chance? No, their first move is pretty much always going to be CYA. Your civil rights are not as important as them keeping their job.

    Having a person they returned their guns to who then commits a shooting is tantamount to crucifixion in the press and political death and they know it.
     
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  6. Mowgli Terry

    Mowgli Terry Member

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    Not being snarky but I did not see reference to a police report in the Ammo Land article nor in the document that was included. Is this usual in Florida to be able to get an order of protection without documentation of a police report.

    What appears to be a number of murder-suicides/murders that would also make a magistrate conservative.
     
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  7. FlSwampRat

    FlSwampRat Member

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    We have a law called the Baker Act which can commit someone for a few days for evaluation, for example. This would involve guns being removed from the home. This happened to a neighbor. He eventually did find a gunless way of committing suicide, but that's beside the point.
    https://www.myflfamilies.com/service-programs/samh/crisis-services/laws/bainvex.pdf

    I have always envisioned laws and rights like an elastic web with a ball at each juncture. pulling on one will affect the others. The big question is always how much one is willing to have the other balls move because one of the balls was shifted out of place as so many legal things are interrelated.

    With these shootings it seems the goal is really a kill count that is higher than others. It's like saying someone has the highest score in a video game. "I'm the Donkey Kong champ of the world!" sort of thing.
    I'm not anyone's psychologist, I don't have a degree in psychology, and I've never talked to any of these $#@#s. But to my layman's mind, it sure seems like the goal is the infamy/fame that comes with being such a monster. I'd like to see the media stop using their names and giving them that which they seek. They are still, locally, pouncing on any crumb of "news" about that PO$ in Parkland and glorifying, in his own mind what he did. I heard on the news this morning that the El Paso shooter is on suicide watch. Shame he didn't consider doing it and talking about it a month ago. Maybe he would have been committed to an institution if Texas has anything similar to the Baker Act there.
    It's a mental health issue IMHO, and anyone with that kind of mental issues needs to not have access to firearms or knives and should have to do all their correspondence with crayons.
     
  8. Mowgli Terry

    Mowgli Terry Member

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    The Baker law is very similar to the process in Tennessee. There are several levels of evaluation plus transportation by a deputy. Not knowing, I'd bet that Texas does have an equivalent to the Baker Act. Where I'm going is that the Baker Act may have ratified an emergency procedure already in place. These situations are handled as a MH issue. These shooters can slide under the radar. Of late, there have been exceptions.

    How is the body count where the perpetrator is a SO? Also, bet that the body count stacks up higher than the mass shootings.

    On the news there are reports of mass bombing and other terror acts. Wonder if these reports play a role in our mass shootings.
     
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  9. boom boom
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    boom boom Contributing Member

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    Due process as far as the U.S. Constitution goes is based on Mathews v. Eldridge (a Social Security Disability case). The three components of how much due process must be given by a government are a) the interests of the person at issue; b) the risk of an erroneous decision; and c) the government's interest in economic efficiency and whether additional processes will reduce the risk of error.

    There are two different sorts of interests--property and liberty.

    A property interest includes such things as a job, real property (real estate, cars, etc.), promised payments via statute, etc. and is some interest in these things protected by law.

    A liberty interest includes not being confined against one's will, being able to enjoy the rights of citizenship--not being banned from what other folks are allowed to do, not being on government lists made public etc., denial of fundamental freedoms under the first amendment, etc.

    The red flag laws depending on the way that they are drafted might affect both a property and liberty rights of individuals and thus do require due process. They affect property obviously when a firearm can be seized without an underlying crime as does seizure of money, cars, etc. using civil forfeiture laws. They also can affect a person's liberty interest as they affect whether or not a person can buy a firearm after the red flag event and how that is restored.

    Civil commitment for mental health treatment is one example of something that requires quite a bit of due process before it can occur and prompt resolution with substantial due process protections. In most states, any temporary ex parte (where the defendant is excluded) civil commitment rulings must be confirmed by a complete adversarial hearing within 3 days or so and the person must be evaluated separately by a medical professional during that time. Counsel is provided if one is too poor to afford one at the hearing, the evidence standard is clear and convincing evidence that the state must provide and the standard is whether or not that person is at imminent serious risk to harming oneself and/or others. The hearings are before a trial judge usually and allow both sides to introduce evidence, cross examination of witnesses, statements are made under oath, etc.

    Most of these civil commitment laws have relatively extensive number of people who can report an issue regarding civil commitment because many mentally ill become essentially isolated so a family or law enforcement only reporting condition would miss a large proportion of this population. This becomes a trap regarding red flag laws as random individuals culling names from a database could essentially makeup a report. This is why sworn statements and an adversarial hearing is absolutely the minimum that should occur in such cases. Adding a false reporting criminal/civil statute with mandatory punishments also quells the interest of those trying to misuse the process. Immediate resolution should also occur of the full adversarial hearing with the firearms and rights being restored immediately after this hearing and the public should be charged for any damages to property suffered by the individual. If we must have any red flag legislation, this outline is what I believe is the minimum.

    Personally, I would also argue against any "no knock type" raids using red flag laws being authorized along with the ex parte type hearings. Most of these individuals that would be caught up in this are not mentally ill. Instead, I suspect that they are hot heads, lack good judgment, are generally windbags/cranks, and have little intention to actually back up their threats with actions. But, spring a no knock warrant on someone that is armed and you will get dead police and dead individuals which will then be viewed as confirmation that people owning firearms are dangerous nuts. I think to some of the more repulsive advocates of this legislation is exactly the outcome desired which is punishment by process. Restricting any ex parte hearings is quite defensible using the rational arguments if the person has made threats already banned by public statutes, then they can be charged through the ordinary criminal justice system BECAUSE THEY ARE A DANGEROUS PERSON THAT BROKE THE LAW. No red flag hearing prior to them breaking the law is necessary and the accused get the full procedural protections from the Bill of Rights for the accused.

    Instead, the red flag laws seem to be modeled on the civil forfeiture laws that quite frankly are repulsive in most states. In that the PROPERTY is dangerous rather than the individual and thus must be seized by the state. The legal system by and large has treated the state's seizure of property as deserving little due process protections. Gun rights supporters can and should make common cause with those against abuses of the civil forfeiture laws because these are two sides of the same coin. Government can take your property giving you little or no due process, damage you financially, and then keep the goodies themselves to do as they wish. This sort of thing was a complaint back against Bad King John's view of law enforcement as a tax by other means and was dealt with in the Magna Carta as an abuse. Just as civil forfeiture laws should only apply if a person has been convicted of a crime as part of that criminal adjudication, so should permanent seizures of firearms only apply if a person is committed for mental treatment or convicted of criminal activity where they have the full protection and use of counsel and procedure to combat any miscarriages of justice. There should also be prompt expungement of the records and those proceedings being sealed if the judge in a full adversarial hearing concludes that the state's allegations are unfounded. Trial judges should be specified in these orders rather than allowing magistrate judges to hear cases as unfortunately magistrate courts are often the first resort to rubber stamped search warrants among other things. Their ex parte nature in these things tends to support the state because the other side is not present to make their case.

    These are my thoughts on the matter and I am sure that others can add additional clarifications and ideas to the forefront. In essence, federal grant money should demand states applying follow strict due process protections or get nothing. Due to the incessant demand for money, it would be a big stick that might force some states to revise their laws to comply, no state would be forced to pass such laws, and we can have the high ground of constitutionalism and protecting rights of individuals. If the gun rights advocates link up with civil forfeiture opponents, this will also upset the applecart as it broadens the coalition beyond simply "gun nuts". I see no reason that the same protections that should be demanded for firearms should not be extended to all property seizures by the state.
     
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  10. FlSwampRat

    FlSwampRat Member

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    No, fire the incompetent. And I haven't walked away from my government, it's run away from me.
     
  11. Mowgli Terry

    Mowgli Terry Member

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    In my experience the firearm is not the focus. The focus is dealing with a potentially life threatening situation. How to defuse what's happening before the worst takes place most important. That why it's called Crisis Intervention. Incidentally, it's not about predicting violence. An assessment is a step by step process with person having to meet objective criteria as a threat to himself or others.

    For the sake of our discussion how about what happen now. Neighbors call in that Earl is beating up on Erma Sue yet again. Police arrive. Earl decides to fight the two officers who answer the call. That did not work out at all well. Earl is being cuffed and one of the officers see a Model 10 S&W in the cushions on the couch. Now, what happens to that gun? Not what might happen-what is happening now. Experience, not speculation.
     
  12. robhof

    robhof Member

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    And what's not stated is how many innocent GUN owners have been killed or injured by the red flag laws as that doesn't serve the anti-gun agenda. I know for a FACT That it happens, when I lived in Homestead Fl., many yrs ago, SWAT was getting started in Miami and at least one 87 yo. man was killed for jumping up when his door was smashed open, OOPS WRONG ADDRESS!! Thank God for an honest reporter and vengeful relatives the city/county was sued for millions and family won, effectively stopping SWATTING IN Dade county and having civilian over watch of ALL raids....I urge anyone harmed by these laws to find a contingency lawyer and SUE THE SOB's!!!!
     
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  13. Mowgli Terry

    Mowgli Terry Member

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    I'm not sure about warrantless searches as a part of the Red Flag Laws. Maybe, I missed something but there was no mention of warrantless searches. The point about those Red Flags is due process and with judicial review. Firearms are removed for the safety of the person and others. It's not an anti-gun conspiracy. Don't blame Red Flag laws when a SWAT team makes a serious error. Period
     
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  14. Jim Watson

    Jim Watson Member

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    Agree with boom boom, but there are a lot of "shoulds" in there.
    My and I think many people's fear is that a new "Red Flag" law will be a basis for what John Bruner called an "anonymous denunciation" system.
    There can be many a slip between a 3 day hearing and a two week maybe.
     
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  15. boom boom
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    boom boom Contributing Member

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    Actually, I would beg to disagree. To some degree having a special unique process for firearms is anti-gun. The firearm is not the danger here but the individual. Then if the state is focusing on the possible criminal actions of the individual, the rights of the accused in a criminal sense should apply. If they are focusing on mental illness, every state has existing civil commitment laws that allow the state to involuntarily commit someone for observation by professionals whether they are dangerous to themselves or others. Every state has similar EPO's and domestic violence statutes etc already for stalkers, wife-beaters, etc. where a judge after a suitable hearing can grant motions for the defendant to divest themselves of firearms.

    Why then have a jackleg third process that is neither fish nor fowl? The answer is that anti-gun advocates want something like the loosey goosey civil forfeiture laws to apply to firearms specifically so the state can seize them. I do believe that for some of the more blood thirsty types, the carnage among police and the individuals during the seizures are viewed as a feature. Want more support, make the procedures in red flag laws follow the same due process required for criminal charges or civil commitment with the state bearing the burden of proving it to a high degree (at least clear and convincing std) and having to reimburse the individual for damages, you will have less problems with the system being abused. Otherwise, imagine that your First Amendment free speech rights are next targeted with a midnight raid to seize your phones, computers, etc. because of your anti-social activities. After all, we cannot have individuals saying what they like as much of it is hate speech or sedition and causes people their lives or at least hurt feelings.

    Believing in the Constitution, you recognize that a certain number of people that you do not know and may never know will suffer or even die as a consequence of having those rights in society. There is a reason that Thomas Hobbes preferred the rule of a tyrant that denies all rights to the people to preserve order over anarchy.

    The rights of the accused have allowed murderers to go free and commit more. The rights of religion have allowed cults to hurt their followers, the rights of free speech have allowed folks to destroy the reputation of others and cause civic unrest leading to death and injuries. The rights of the mentally ill not to be confined has allowed some to commit heinous crimes while other to harm themselves or their families. The liberty to drive a car leads some to do so negligently or even evilly to bad effects on society. Ditto for drinking.

    There is no free lunch--rights have costs which is why they also have unspoken obligations by those protecting them. Even with the costs, I prefer liberty in a society despite some deaths due to it to a society where the greatest fear is the government's knock on your door to take you away--in the twentieth century--by a far margin in the death toll--the greatest number of casualties outside of war came from a government doing that to their own citizens.

    BTW, there was specifically an issue with a red flag law in Maryland and a person being killed as a result. https://www.baltimoresun.com/news/crime/bs-md-aa-shooting-20181105-story.html#nt=instory-link
    Recognize that this will be the cost of a red flag law and that some people will end up dying rather than submitting. Doing things like a drug raid at 5:17 am in the morning without prior notification of a hearing is the sort of thing that will cause both police and civilian casualties. People are a lot more likely to submit voluntarily when they feel that they have been heard rather spring stuff on them as a surprise. If he was accused of a crime and arrested, he would been given more due process than this.

    In a later story, the police chief for the department argued that the incident proved why such laws were needed. "Anne Arundel Police Chief Timothy Altomare said the shooting was a sign that the law is needed, while state gun rights advocates called for the law to be suspended and repealed after Willis’ death." https://www.baltimoresun.com/maryland/bs-md-red-flag-law-requests-20181114-story.html
    Such a caring guy-resisting what the person felt was unjustified taking indicates that he was the type that should not have a gun. This is the sort of petty tyranny that can arise from such laws. Apparently the dispute that caused it was a family argument. Here is the quote from other family members, "Anne Arundel Update: Family members tell me there was a fight last night that centered around the care of an elderly family member that led them to contact police. Gary Willis struggles with alcoholism. Family say he wasn’t dangerous just strongly opinionated." https://www.prisonplanet.com/maryla...-his-home-for-resisting-gun-confiscation.html
     
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  16. IJ1981

    IJ1981 Member

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    No Due Process here.

    The LEO's just come and get it. After that, it is all up to a single Judge.

    Good Luck.
     
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  17. boom boom
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    boom boom Contributing Member

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    I am not saying that such laws are needed--in many states, there are already procedures to address domestic violence, criminal threats, and mental illness and the ancillary seizure and termination of certain rights because of those situations. I prefer rather than multiple shiny toys of new laws--enforce the ones you have first to resolve the situation.

    Instead, if a red flag law must be adopted, it cannot follow the shoddy due process for both search warrants and asset forfeiture hearings. One is terminating constitutional liberty and property rights of an individual--not the right to take a piece of property into protective custody. That requires serious protections of due process--we grant as much to expulsion hearing in public schools where education is not an enumerated right under the Constitution.

    If such red flag laws are imperative for the public safety, then the incentives in these laws should be to protect individual rights even at the expense of allowing government to lose with the public paying for it. That is one of the complaints about current civil commitment laws is that it is really difficult and expensive for the state to do this and that often the judge rules against friends and families. But those laws arose from some abuses by "friends and families" to chuck people into confinement for a variety of not so good reasons. Thus, court appointed counsels help as they can argue the case and it makes it harder for the state/law enforcement/friends/family to unjustly deprive someone of their rights. In violations of the 72 hour civil commitment cases, such a counsel can go before a judge with a writ of habeas corpus to force the release under compulsion of a court order as a counsel can also do for failure to arraign someone on a timely basis. Tends to make the system a lot more caring about rights. Requiring sworn testimony by witnesses and the potential for being punished for falsity of reports can also weed out those desiring to misuse the process for punishment.

    I have not the time right now to go through a detailed policy analysis but my suspicions based on previous readings on mentally ill individuals, domestic violence orders, and criminal law means that I believe that most states already have many of the tools to stop this stuff--but no government agency ever has said we don't want more power to do our job. If they could, agency directors would have everyone with 24/7 video surveillance and the same privacy rights you get in jail. After all, what is a privacy right but the desire to cover up wrongdoing. A virtuous person has no fear of the 24/7 surveillance society would be the attitudes of our new would be lords of the manor.
     
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  18. FlSwampRat

    FlSwampRat Member

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    But this makes it more illegaler. <sniff sniff, smell that? it's sarcasm>

    As you say, we have laws if the person is a prohibited person. We have laws in place to commit them for observation for up to72 hours for mental reasons. This reminds me of when the RICO laws were enacted. I read somewhere at the time that it was a "good tool for law enforcement" and I got a chilly feeling on the back of my neck when I read that. According to my lawyer at the time, with those laws you could be considered to be in a conspiracy with someone who you never met or talked to simply by having expressed compatible ideas to completely different people. As I said, that was my lawyer's read on the thing, I don't speak Mandarin, Aramaic or lawspeak, so I never read them but for summaries.
     
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  19. Mowgli Terry

    Mowgli Terry Member

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    I want to ask what is all this about. Our system was simple due to limited resources. Our main problem maintaining client rights were other agencies who would try to bully us into releasing records inappropriately. The Red Flag laws such as the Baker in Florida affirms what is being done here already. People with insurance went elsewhere. That's another world. My senior was adamant about observing individual rights as was my supervisor. With the promise of all the lawyers running around with complicated rituals and posturing etc, affirms my decision to retire.
     
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  20. old lady new shooter

    old lady new shooter Member

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  21. old lady new shooter

    old lady new shooter Member

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    Maybe the real dividing line for mental illness is posting terroristic threats on social media.

    Haha, at the rate things are going maybe some "celebrities" will be arrested soon...
     
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  22. old lady new shooter

    old lady new shooter Member

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  23. SharpDog

    SharpDog Member

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    Last edited: Aug 20, 2019
  24. old lady new shooter

    old lady new shooter Member

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    Yes, taking away someone's guns may prevent one method of suicide, but it won't prevent suicide per se. Especially now with all the publicity about Epstein, millions of people learned how to kill themselves simply and relatively painlessly with just items found in any home, a doorknob and something to put around their neck. All the reporters have been bleating exactly how to do it and how the person loses consciousness almost immediately and then dies shortly thereafter.
     
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  25. boom boom
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    boom boom Contributing Member

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    Heh.
     
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