Tag Archives: ERPO

Let’s Ex Parte!

Ah, the fad for Extreme Risk Ex Parte Protective orders. You know, I shall henceforth refer to them as EPPOs.

Supposedly, these are to get guns out the hands of “dangerous” people, but the fact is that every state already has laws — for years — that allow that. The only thing EPPOs “add” is stripping away due process, through ex parte “star chamber” proceedings with the subject not even being aware of the accusation until the cops show up to steal his property. That’s the point.

Besides ex parte proceedings stripping away human/civil rights being morally repugnant, that don’t meet the federal definition of due process, which requires a hearing with the accused before the rights-stripping. (You hear that, NRA?)

So yes, I oppose EPPOs. But allow me to make a little suggestion. This isn’t actually being offered as a compromise, just a thought experiment to see how the victim-disarmers react. Let’s modify the basic “ERPO.”


The individual applying for an EPPO shall, in addition to any court/filing fees, post a $10,000 bond.

When the ex parte hearing is held, the judge shall either issue the order or deny it.

  • If the order is denied, $5,000 of the bond will be delivered to the subject of the EPPO application, in restitution for the attempted infringement of the subject’s rights. The subject will be informed of the denied application and the identity of the accuser.
  • If the order is issued, $10,000 will be delivered to the subject when the police remove the firearms.

If the order is issued, the after-the-fact appeal better-late-than-never-due-process hearing will be heard by a judge other than the judge who issued the order, who has no conflict of interest in case.

If that judge does not uphold the original order, the first judge who issued the order will be suspended from the bench without pay and criminally charged under 18 U.S. Code § 242 – Deprivation of rights under color of law. A civil judgement will be entered against the offending judge ordering him to pay the subject of the order $10,000.

In any case, the subject of the order keeps the original $10,000 in restitution for the rights-violation which occurred before he had a hearing. No shall the subject of the order incur any court costs, filing fees, or fines; and all of the subject’s legal expenses will be borne by the party who applied for the rights-violation.

None of the restitution paid to the subject in this process shall be construed as disallowing additional compensation awarded through other civil or criminal proceedings.


OK, victim-disarmers. Put up or shut up. Is it your goal to protect people from themselves, or to make cheap, anonymous SWATting of gun owners legal?

 

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Baker Act vs. ERPO

There’s a fad for “red flag” extreme risk protective orders that makes the pet rock craze look rational. Even the Vichy NRA backs this supposed tool to keep guns away from “dangerous” people.

Except when they claim they don’t. Oh no, says the VNRA, we only back ERPOs with “due process.” Except when they don’t.

Why the demand for ERPOs, with their intended lack of due process? If the goal is to prevent a potentially dangerous person from harming himself or others, one could implement a Florida-style Baker Act.

The Baker Act allows an adult to be involuntarily held for mental health evaluation for up to 72 hours (12 hours for a minor). The 72 hour limit conforms to the usual 72 hour maximum that criminal suspects may be held without charges.

Neither a 72 hour questioning period nor a 72 hour mental health evaluation result in a permanent or semi-permanent loss of Second Amendment human/civil rights. In either case, a loss or suspension of rights would come only after a due process hearing (indictment or involuntary committal), resulting from the outcome of the questioning or evaluation.

It is noteworthy that victim disarmament advocates, and the VNRA, do not see any need for due process before rights are violated. In fact, typical “red flag” laws do not require that the allegedly dangerous person be taken into custody at all (the VNRA suggests this as an option available to a judge in an ex parte proceeding). The target is merely one class of weapons, not the person allegedly in need of help.

One class of weapons: firearms. Not baseball bats, knives, nor even motor vehicles, which in 2016 were implicated in almost 2,000 more deaths than firearms, even though estimates of the number of motor vehicles is 138,360,614 less than the number of firearms in America. ERPOs take firearms useful for defense, but not statistically more deadly automobiles. Not even the driver’s license.

Does that sound like something meant to ensure safety?

Another difference between a Baker Act hold (or hold for questioning) and “red flag” laws is that a person held for evaluation or questioning is allowed representation and communication. The subject of a “red flag” order never has the chance for either, because the first he knws about the order is when the police show up to seize his property, or kill him. And where is the due process for someone whose firearms are taken, because someone else was subject to a “red flag” order?

Further, standard “red flag” law language imposes a long-term loss of 2A rights even if the person is never found to require treatment, nor accused of an actual crime. Typically, the accused may petition for restoral of rights after a set period. In contrast, a criminal suspect released from custody without charge retains all of the rights he enjoyed prior to questioning.

“Red flag” extreme risk protective orders protect no one. Not the accused, not anyone else whom he allegedly might harm.

ERPOs are designed from the ground up to violate the rights of gun owners without pesky things like hearings or trial. ERPOs are legislatively and judicially blessed SWATting, no guilt required.

So why does the VNRA support “red flag” ERPOs, with ex parte proceedings instead of a simple Baker Act-style law in which no one loses their constitutionally-protected rights until adjudication has occurred?

 

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[Update] Red Flag Orders: Weasel-wording from the VNRA

See below, for more hypocrisy.


No, for once, I’m not going to talk about bump-fire stocks (anyone who doesn’t understand that problem by now can’t, or won’t, comprehend it).

Let’s talk about ERPOs. And the Vichy NRA.

Call them extreme risk protective orders, red flag orders, gun violence protection orders, or what have you, they had been floated for years, but became particularly popular after the Parkland school shooting. Rather irrationally, since the local, state, and federal authorities had plenty of time and warnings to stop the murder before he escalated to the deaths of humans (per reports, he’d been killing animals for years). The point was to deflect attention from their own failures. If only we’d had ERPOs (in addition to unused protective orders, unused Baker Act, unused arrests/indictments/convictions for what he’d already done, maybe even ignored prohibited person status), we could have stopped him.

Of course, the VNRA was blamed, too. So the VNRA had to put up their own deflector shields. They jumped on the ERPO bandwagon. Yeah, red flag laws are a great idea!

And the knowledgeable gun community — for once — exploded.

ERPOs have a little constitutional and moral problem.

I’m going to generalize, because the specifics vary from state to state. Getting a regular protective order is relatively easy. The person who thinks they may be threatened goes to a judge and asks for an order keeping the accused away from them. The court sets a hearing date. Parties involved show up and speak their piece. The judge decides if the order is justified, and if so issues it. He may set special conditions: some monitored contact, maybe zero contact, no threats, if he sees a particular danger he may order the accused to turn in any firearms he possesses. And with the order in place, he cannot lawfully obtain another firearm.

Whoa. Wait. Full stop. I’ll bet newcomers to this thought newly empowering judges to take those guns was the point of ERPOs. Victim disarmament advocates — like the mainstream media — have certainly done their best to convey that impression. But, generally, judges already have that power.

Though adjudication, a hearing in which the accused has the chance to defend himself before hand.

ERPO laws don’t change add that power. What they do change is:

  • The accused doesn’t get the chance to defend himself. He isn’t even told of any hearing before his firearms are taken.
  • The claim that the accused is dangerous doesn’t have to come from anyone who feels threatened. In fact, as some laws have been written, the accused and accuser need never have met. The accused might not even know of the accuser’s existence

The first a person has any idea that he’s been accused may be when the police show up to kill him. Some people call that SWATting. I do.

ERPOs have even been executed against people who aren’t accused of being “dangerous” (they took firearms from an innocent third party because the accused thought he might be able to steal guns from him; might, not “could”).

That is what ERPOs are. And that is what the VNRA endorsed. Initially.

When gun owners (and even the ACLU) noted due process problem with ex parte proceedings, and the whole “to be confronted with the witnesses against him” thing, the VNRA backed off. Oh, no! What we MEANT was that we back ERPOs with due process.

Specifically, the VNRA said:

Just in case they decide to retroactively edit reality, here’s a screencap showing their support for ex parte proceedings.
  • Any ex parte proceeding should include admitting the individual for treatment.
  • A person’s Second Amendment rights should only be temporarily deprived after a hearing before a judge, in which the person has notice of the hearing and is given an opportunity to offer evidence on his or her behalf.

Make up your minds, VNRA. Stop weasel-wording on the issue. Would the VNRA allow ex parte (the accused not given the opportunity to participate) hearings or not?

Again, the NRA will continue to oppose any proposal that does not fully protect due process rights. We will only support an ERPO process that strongly protects both Second Amendment rights and due process rights at the same time.

Due process is defined in 5 U.S. Code § 554 – Adjudications. It requires the subject to be informed of the hearing before it is held. That excludes any ex parte action.

And yet, the VNRA is still (as of January 8, 2019) allowing for ex parte hearings with no due process.

If the VNRA wants due process hearings for protection orders, then “red flag” ERPOs are exactly what they should oppose.

Smart people — which seems to exclude VNRA “leadership” — understand that. The framers of the Constitution certainly did.

Article 1, Section 9
No Bill of Attainder or ex post facto Law shall be passed.

What’s a Bill of Attainder?

A bill of attainder (also known as an act of attainder or writ of attainder or bill of pains and penalties) is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them, often without a trial. As with attainder resulting from the normal judicial process, the effect of such a bill is to nullify the targeted person’s civil rights, most notably the right to own property (and thus pass it on to heirs)
[…]
The use of these bills by Parliament eventually fell into disfavour due to the obvious potential for abuse and the violation of several legal principles, most importantly the right to due process, the precept that a law should address a particular form of behaviour rather than a specific individual or group, and the separation of powers.

No trial: Check.

Nullifies civil rights: First Amendment rights to speak in a hearing denied, Second Amendment rights to firearm denied. Check.

Takes property: Check.

Heck; 4A, 5A, 6A, and 9A gone. Check.

The VNRA officially supports unconstitutional Bills of Attainder which strip anonymously accused people of their rights and property with no due process.

The Vichy NRA officially supports Star Chamber-ordered SWATting with no due process.

Update: The VNRA is “opposing” a red flag law in North Dakota.

Not only do they fail to provide any sort of mental health treatment but they allow the state to deny law-abiding gun owners their due process of rights. If the state can deny due process to these law-abiding residents then what’s to stop them from denying any right to any group of people?”

Which is exactly why I am calling out the VNRA’s hypocrisy in supporting ex parte proceedings lacking in participation, before the deprivation of 2A human/civil rights, by the accused.

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Escaping An Abusive Relationship

My dear, it’s time to admit it. You are in an abusive relationship. He doesn’t really love you. He loves controlling you. You may even suffer from a form of Stockholm Syndrome, in which you’ve come to believe that he does this for your own good.

He is manipulating you with fear. He tells you that you have to give up some things, or freedoms, or you risk losing more.

That’s his modus operandi. “Just give them what they want, or they’ll take everything.”

It’s time for you to take your family and escape from his abuse. You can’t save this “relationship.” It isn’t a relationship, it’s enslavement. Get out, and go to a shelter that will protect you.

It’s time to leave the NRA.

In 1934, the NRA backed the National Firearms Act. They told you they did it to save handguns. But what it did was make militia grade weapons unaffordable, inaccessible, for most militia members. A black eye.

In 1968, the NRA compromised on the the Gun Control Act. They told you it was to prevent worse infringements. But it established licensing and large classes of “prohibited persons” with no constitutional rights. It effectively ended mail order of firearms. Bruises.

The NRA compromised on the Firearms Owners “Protection” Act. They told you it “protected’ you from unconstitutional state abuses. Those abuses still exist. And what you got was a complete ban on new machineguns, making the few in circulation far more expensive. A missing tooth.

The NRA rolled over on the Undetectable Firearms Act. They told you it was to protect existing guns. But it killed research and development of new firearms technologies. A broken, bloody nose.

Gun Free School Zone Act: For the children. But it could make you a felon for walking in the area of a school you couldn’t even see. More bruises, a cracked rib.

Brady: It’ll keep guns out of the hands of criminals, the NRA told you. They didn’t tell you that a supermajority of criminals get guns through unlawful channels bypassing background checks. You got a prior restraint on your human/civil rights, more expensive guns, delays, and the FBI keeping records of purchases. A concussion.

The NRA helped write an “assault weapon” ban. They told you it was because if they didn’t write it, it would have been worse. The NRA’s ban included SKSes with fixed ten-round magazines. Is that blood leaking from your ear?

Remember when the NRA thought constitutional carry — honest folks being armed for defense without begging the state’s permission, and paying for the privilege — was bad? The NRA actively sabotaged state-level CC efforts; successfully in New Hampshire. Slap. Punch.

The NRA supported Fix NICS, which includes language that encourages states to add people to NICS without any trial, hearing, or notice; for non-criminal activities. Boom. Coma.

The NRA petitioned the federal government to “regulate” bump-fire stocks as machineguns, then feigned surprise when they discovered that bump-fire stocks would now be banned post-1986 machineguns… thanks to the NRA’s FOPA compromise. And if bump-fire stocks “easily convert” semiautomatic rifles to machineguns… The all semiautomatic rifles are machineguns under the same open-bolt ban, or ban of semiauto ARs that could accept an M-16 trigger group. The NRA is punching and kicking your unconscious body.

The NRA has endorsed no-due process extreme risk protection orders, so-called “red flag” laws, allowing the confiscation of firearm from someone not accused of a crime. And now they’ve been used to confiscate firearms from folks who simply know someone who wasn’t accused of a crime. Oooh. Fractured skull.

So, my dear, it’s time to wake up and escape your abuser, while you still can. The NRA isn’t beating on you because it loves you; just your money. And when your abusive partner demands money to fix the injuries he inflicted upon you, find something creative to do with those NRA fundraising letters.

Leave the National Rifle Association. For good. That marriage cannot be saved.

(edit: corrected “by passing” to “bypassing”)

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“What could go wrong?” she chirped.

The NRA, Trump, and a gaggle of gun controllers and politicians have pushed for “red flag” Extreme Risk Protection Orders The alleged idea is to bypass due process to confiscate firearms from someone who supposedly poses a threat to himself or others, no evidence needed. “Due process” would come after the theft — sometimes weeks later — and leaves the allegedly “dangerous” person free to do whatever they think he might do sometime in the future.

Just yesterday, I wrote a bit of satire about the just-signed rule banning bump-fire stocks, and added this bit:

When asked about the NRA’s position on “red flag” extreme risk protection orders, another controversial gun control proposal the NRA has supported, Aikiddin whined, “No one who isn’t potentially thinking about doing something, but hasn’t, has anything to fear from red flag laws. And we think that balancing PRE-crime infringements of rights with POST due process offers legal symmetry.”

“What could go wrong?” she chirped. “But we can raise money on that, too.”

I stand corrected.

No one who isn’t potentially thinking about doing something, but hasn’t, and doesn’t know someone who maybe might consider doing something eventually, has anything to fear from red flag laws.

UPDATED: Police, school officials avert Middlebury middle school shooting
After confirming the whereabouts and establishing short-term plans for both young suspects, police turned their attention to securing their alleged source of guns.

“We executed what is called an ‘extreme risk order’ (Monday) night at a relative’s house who had all these firearms,” Hanley said. “They were locked up (in the home), but one of these kids said he had access to them and could get them. So we took advantage of that extreme risk order statute that was passed. We needed to separate the person from their ability to do this.”

Not the suspect. Firearms safely secured. And they executed an “extreme risk order against an innocent person no one had even claimed was a risk.

They just violated someone’s human/civil rights for as much as six months, and without the chance to beg for restoral for up to two weeks. Because someone else — who may not even reside in that home — was accused of a pre-crime.

And the minors whom they believe were planning a crime?

“There may be some other charges down the road, but right now it’s the treatment issues we’re dealing with.”

They confiscated ten firearms from someone else based on something that they not even charge anyone for.

What could possibly go wrong? It isn’t as if anyone will ever further abuse that precedent.

Right?

 

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ERPOs: Everyone is STASI now

Sane people already know that so-called “extreme risk protective rights violating orders” are… insane.

  • Not a single bill I’ve read actually requires taking into the custody the allegedly “dangerous” person. Just one type of weapon. Just make him angry, and leaves him free to act on it, with something else.
  • None include — by deliberate design — anything approaching due process meeting federal legal standards. The accused is specifically excluded from any chance of defending or explaining himself before his property is stolen. Which, of course, is why he’ll be angry.
  • Few, if any bills, include penalties for someone filing a false report. At least one state specifically legislature voted down an amendment to add penalties for false reporting. A no-cost way to screw with one’s enemies.
  • By design, these bills allow petitions from people with minimal contact with the accused.
  • ERPOs require a standard of “evidence” for depriving someone of rights far below that of even a misdemeanor conviction. The standards are well below that of ordinary civil lawsuits. No evidence; just an unsubstantiated claim good enough for a judge who hates guns.

So how can they possibly get any worse?

What? You never heard of New York, or Gov. Cuomo?

Cuomo: Allow teachers to petition judges to seize guns
New York Gov. Andrew Cuomo wants to allow teachers to ask a judge to remove guns from the homes of troubled students.

The Democrat said on Tuesday that he will introduce the idea as legislation. He acknowledged it will face criticism from Republicans.

Under the measure, teachers and school administrators would have legal standing to petition a court to remove any firearms from the homes of students considered a threat to themselves or others.

This would allow teachers to obtain rights-violating orders against not the student, but anyone and everyone in the student’s home. Whom the teacher may have never met. Whom — supposedly — isn’t even the alleged “dangerous” person.

Don’t like guns? Start reporting students and get entire families of innocent people disarmed, without any pesky need for evidence. This being New York, I’ll guarantee they’ll find oath-breaking judges who’ll sign victim disarmament orders. I can see NYS school districts sending out memos to teachers to start collating lists of students/families to target, based on known/suspect gun wnership by a family member. Probably starting with those whose parents demand parent-teacher conferences; the damned uppity troublemakers who dare question the faculty’s authority.

I don’t live in New York (and you would have enjoyed the discussion the time a boss tried to talk me into relocating to New York City), so this wouldn’t affect me.

Yet.

The problem is that, like “standard” extreme rights violating order legislation, the gun people controllers will take any legislation Cuomo comes up with and use it as a model in other states. I can make some good guesses as to which legislators in Atlanta would leap at the chance to sponsor it here.

I have a disturbed niece who has publicly stated that she hates guns, and wants everyone over the age of 55 eliminated. What happens when she realizes she can start filing no-evidence ERPOs to fulfill her genocidal dream?

What happens when anyone having a lawncare dispute with a neighbor can send the confiscation cops out to screw him over?

What happens when ERPO legislation makes everyone a STASI informer?


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Consider if you will

-annoying rap ringtone-

“Yeah? Mikie here. Oh, Lemonjello.* Yeah, I know, but I ain’t got the money. I know, I know; I said I’d pay it back last month, but, sh*t bro, you know how it goes… No, don’t tell Sharisse; she’d kill me. F*** it, man, I gots some cash coming next month. Leave me ‘lone till then.”

-puts multi-hundred dollar phone away-

“F*****g a**hole. I’ll pay his a** back.”

-pulls phone out again-

“Crimestoppers Hotline.”

“Yeah, I know this who’s gonna rob a bank. His name’s…”

“Sir, is this a crime that has already occurred?”

“Well, naw. But he’s gonna rob it.”

“Sir, I’ll forward you to the Detectives division.”

-click- -obnoxious elevator music-

“Investigations. Sgt. Holloway.”

“Yo, man. I know a dude what’s gonna rob a bank.”

“Really? And you know this how?”

“Like, he’s talking ’bout needin’ cash, and he got this gun… His name’s Lemonjello Sm…”

“What bank do you believe he’s targeting?”

“Umm… Well, he gots an account at the Second First National on Highland.”

“He’s going to rob his own bank?”

“Sure; he know where that one is.”

“He told you about his plans?”

“Naw, but you just know…”

“Right. Tell me about this gun he has. What type, where he got it.”

“I ain’t seen it. But he said he bought something for protection at Falcon Tactical Guns a while back.”

“He bought this at a gun store?”

“Sure.”

“So we have a guy with a lawfully owned firearm, who hasn’t said anything about robbing anything, but you just know. Has he robbed anything else? Muggings, assault, anything else?”

“No, but…”

“Let me guess. You owe him money, and you’re trying to get out of paying. We see that all the time.”

“Wait! Maybe he’s gonna…”

-click-

“Well, shit.”

-punches numbers again-

“Red Flag Hotline. Who is in danger from whom?”

“Yo, Lemonjello Smith done got a gun, and he’s gonna hurt somebody. And… and… Yeah! He’s real depressed-like and gonna kill hisself when he done.”

“Thank you for the warning, sir. We’ll get right on it. Please spell the poor man’s name.”

“L-e-m-o-n-j-e-l-l-o S-m-i-t-h.”

“Lemon Jello?”

“Yeah, his momma love the stuff. And you should see his sister Deserta.”

“Lemon Jello and Deserta?”

“Yeah, ain’t none of them right in the haid, if ya know what I mean. And he gots a gun.”

“Yes, this sounds very serious, sir. Let me get the rest of the information, and we’ll get a protection order to take his gun right away.”

“Cool! Thanks be to Jesus for red flag orders, huh?”

“Yes, sir.”


* Pronounced leh MAHN jeh LOW.


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Sandpaper?

Keep guns out of dangerous people’s hands
Groups that support restrictions on firearms might be tempted to go too far in the wake of tragedy. Gun control opponents reflexively oppose any restriction. They call this one a gun confiscation act, despite the many safeguards it would put in place. For them, sandpaper is slippery slope.

Hmm…

  • pre-1968: If there is sufficient evidence of a crime having been committed, you’ll be disarmed when arrested
  • 1968: If you’re convicted of a serious crime, a felony, you’ll lose your 2A rights
  • 1997: If you’re convicted of misdemeanor domestic violence, you’ll lose your 2A rights
  • 1998: You have to preemptively prove you were never convicted of a felony or domestic violence before exercising your right to purchase a firearm
  • 2018: If someone makes an accusation, lacking sufficient evidence to make an arrest, you’ll lose your 2A rights

At this rate, by 2054, if two out of three freaks in a bath tub make an unsubstantiated claim that you might do something in the future, you’ll lose your 2A rights.

Skiing Downhill ca. 2001 Colorado, USA

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Trump: Never?

So Trump spoke to the NRAAM…

“Your second amendment rights … will never, ever be under siege as long as I am president.

Please note that the NRA leadership has supported all these (except raising age limits to 21), too. LaPierre and Cox still seem to be there, so don’t tell me about the new Board.

“Never.” I wonder…


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They could start by firing LaPierre

(I originally posted this on my personal site, but it bears repeating; and TZP gets more traffic than I do.)

NRA Launches Drive to Add 100,000 Members in 100 Days
Fox News reports that NRA media relations manager Jason J. Brown said, “The NRA’s strength is in our dedicated and politically savvy members. Over the next 100 days we hope to welcome 100,000 new freedom-loving Americans to our ranks. The threat to our Second Amendment has never been greater.”

Seriously. Fire Wayne LaPierre. Chris Cox, too.

Then repudiate ERPOs and bump-fire bans. Apologize for opposing constitutional carry, for helping draft “assault weapons” bans, and endorsing obviously anti-human/civil rights politicians. Hell, apologize for supporting NFA ’34, GCA ’68, FOPA ’86, et cetera (it’s a long list).

And I’ll at least think about maybe joining.

Not until.


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