Tag Archives: Red flag

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.

Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar. He could really use the money, what with truck repairs and recurring bills. And the rabbits need feed. Truck insurance, lest I be forced to sell it. Click here to donate via PayPal.
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Where Does Evil Live?

I had an interesting discussion with a girlfriend of mine the other day. I made the statement I thought someone was evil. She disagreed and said she didn’t think people were evil, some just made bad choices, even appalling choices. But people weren’t evil.

Yeah, I think they are. I watched a show the other night that talked about Nellie May Madison. Born in 1895, Nellie was an interesting lady. Raised on a ranch in Montana she learned to shoot, ride and survive in the wild from a young age. She was also the first woman in California sentenced to death for the murder of her husband. Nellie’s first set of lawyers did her no favors, and she got a judge determined to make an example of her. Luckily for her, she had a lawyer as one of her ex-husbands and he persuaded her to get a different lawyer and appeal. When the legendary Aggie Underwood got involved her sentence was commuted and eventually she was paroled. So why did she kill her husband (other than some people just need killing)? She could have been one of the first #MeToo people as well as the first woman on death row. Her husband had a nasty tendency to marry women, then abuse them, pick up teenage hookers, force his wives to write letters that they had been unfaithful because back then that was a sure way to win in court and then beat them. When Nellie held a gun on him and told him to give the letter back, he pulled a box of knives out from under the bed, told her he’d cut her heart out and flung a couple of the knives at her. He missed. She didn’t. But he had seemed so charming when she met him. Snappy dresser, nice car and treated her well. Pretty much the same thing his first wife said. He was really nice, till he wasn’t.

There are a lot of documentaries and crime shows with the topic of people that seemed to be kind, compassionate wonderful people. And how shocked people were when the found out that John Wayne Gacy , Bob Berdella, Samuel Little and the very charming Ted Bundy killed people. Stories of how people had been taken in by someone that seemed wonderful only to lose family members to them, or to be hauled into the police station to see when they knew about the neighborhood rapes, murders, thefts, whatever. These people didn’t see the traits, if they saw them they didn’t recognize what they were and if the did see the signs and suspect they tamped down their uneasiness and stifled their fears. And sometimes they had fears of their own and were unable to do anything useful, such as calling police, due to those.

FBI murder statistics 2017






So, when I think of evil, I think of someone who takes pleasure in hurting others in some form or fashion. I think of someone who has no empathy for others, and only sees people as someone who will help them get what they want, or is preventing or standing in the way of them getting something they want. Which is part of what got me to thinking about psychopaths. There are differences between psychopaths and sociopaths.

And if you’re really curious, this video explains a lot.

It’s frightening to realize that even if you get away from a psychopath they can have had a very detrimental effect on your life, your bank account, your friendships, your job.

Again, victims usually do not understand what is occurring until it is too late. The psychopath may have already launched smear campaigns, taken unfounded legal action, and manipulated those the victim cares about, simply for sport. Once the victims begin sharing their stories with others, the people to whom they tell these stories, often cannot believe what they are hearing. It is common for others to be in disbelief, either because they perceive the victim as an unlikely candidate for targeting or abuse, or because the stories can seem so inherently unlikely that it may be difficult, at first, to believe they are true.

Because they are very convincing, and excellent at lying. The psychopath doesn’t really have a conscience, while the sociopath does, but it’s small and ineffective.

Why are the always usually successful? Because they are really, really good at picking their victims.

The sad thing is, most of us have traits that make us susceptible. Things like compassion, extroverted or introverted, sensitivity to the feelings of others, “go with the flow” attitude, competitive or sentimentality are all traits that can be exploited by someone with “antisocial personality disorder”, the comprehensive phrase for both psychopath and sociopath.

Several of the sites I did some reading on advise trusting your instincts, but sadly a lot can happen before the warning bell goes off it seems.

But what really got me to thinking about this, is a couple of the stories I’ve put up on social media for The Zelman Partisans recently about how the grabby giffords crew and the elitist Michael Bloomberg have been pushing the “red flag” laws, extreme order of protection in different states. They confiscate first and ask questions later. If you’re still alive after the confiscation. Maryland Red Flag Gun Confiscation Order Ends with Dead Gun Owner.

While some of those with “antisocial personality disorder” may not be violent, some obviously are. And now the criminal protection bunch have made it even easier. They don’t need to disarm the victims themselves, they just make a phone call and the law will do it for them.

You know, I believe I’m in favor of a law allowing civil lawsuits against the sponsor of such legislation when they result in a death. Like waiting periods cost Carol Browne her life because the restraining order only made her a target. So yes, I think we need legislation that when a civilian disarming law is passed, that those harmed by it are allowed to sue the sponsor and co-sponsor of such legislation. I realize it’s probably a pipe dream, but hey! If it saves just one life.