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

[roamer_1]

Do you object to the ability of a battered spouse to go to court to get a TRO against her mate?   

The difference being, the spouse is battered. A CRIME has been committed.

[Cyber Liberty]

The legal system is the same as it ever was, including the guarantees of due process and equal protection, the presumption of innocence and the burden of proof lying with the accuser.  Red flag laws are just property-based versions of TROs, which have been around for years. 

Do you object to the ability of a battered spouse to go to court to get a TRO against her mate?   

I don't object to the concept of TRO, I object to seizure of property w/o due process first.

What do you think of the fact that this innocent fellow has to fork out cash to have his day in court.  Fair?

[Jazzhead]

Technically true about the burden, but it doesn't work that way in real life. 

Sure it does.

The burden is on whomever wants to change the current state of affairs. 

Correct.   The burden is on the accuser.   

Someone else has your stuff, you must make the argument to get it back

Like I said,  a red flag law is merely a property-based version of a TRO.   Do you object to the ability of a battered spouse to obtain a TRO to keep her spouse away from the family home?  Is such a TRO a perversion of justice in your view?     

[Cyber Liberty]

The difference being, the spouse is battered. A CRIME has been committed.

Don't look now, but there went another straw man.

[Cyber Liberty]

Sure it does.

Correct.   The burden is on the accuser.   
 

Like I said,  a red flag law is merely a property-based version of a TRO.   Do you object to the ability of a battered spouse to obtain a TRO to keep her spouse away from the family home?  Is such a TRO a perversion of justice in your view?     

The difference between you and just about everybody else is you have faith in government and its courts, I do not.  And shove the battered spouse crap back up where it came from.

[Jazzhead]

I don't object to the concept of TRO, I object to seizure of property w/o due process first.

What do you think of the fact that this innocent fellow has to fork out cash to have his day in court.  Fair?

Of course it's fair.  The question of his innocence is the subject of the proceeding.  You're putting the rabbit in the hat.   

Here's the issue:   Why do you support the ability of a battered spouse to get a TRO to temporarily deprive her spouse of his liberty,  but not his property?     Before I accuse you of hypocrisy (or placing a man's gun on a pedestal above his liberty),  I'd like to hear your reasoning.

[Jazzhead]

The difference between you and just about everybody else is you have faith in government and its courts, I do not.  And shove the battered spouse crap back up where it came from.

Red flag laws are most commonly used in situations of domestic abuse.   Why is my analogy to a TRO "crap"?   

[skeeter]

Red flag laws are most commonly used in situations of domestic abuse.   Why is my analogy to a TRO "crap"?   

A TRO temporarily prohibits voluntary behavior. A red flag law seizes private property without due process.

[Jazzhead]

A TRO temporarily prohibits voluntary behavior. A red flag law seizes private property without due process.

A TRO temporarily denies a citizen of his liberty,  a red flag law temporarily sequesters a citizen's property, in each case pending the application of due process.    Is property more sacrosanct than liberty?     

[Cyber Liberty]

Red flag laws are most commonly used in situations of domestic abuse.   Why is my analogy to a TRO "crap"?   

Because you are using it to deflect from the topic.  One of your favorite ploys.

[thackney]

No, the presumption of innocence isn't flipped.    The purpose of a TRO,  much like that of the temporary sequestration of a gun,  is to preserve the status quo ante while due process unfolds.    If a man credibly accused of domestic violence is ordered to stay away from his family home pending a hearing,  that's to (hopefully) keep him from harming his spouse.   But at the hearing,  the accuser still bears the burden of showing the restraining order should be permanent.

Same with the temporary sequestration of a gun.   The man's gun isn't being confiscated,  it is being temporarily taken away by reason of the credible accusation.   But at the hearing,  the state must prove that the conditions exist for confiscation;  the man's presumption of innocence remains.   Here,  where the credible accusation involves mistaken identity,  it should be a simple matter for the man to show that and get his gun back.   

Reality is different.

When a temporary restraining order (TRO) is filed in NJ, the police will seize any and all weapons that the defendant has in their possession and their home. If a final restraining order (FRO) is ultimately issued, then the defendant will be prohibited from possessing those weapons permanently. And, even if the TRO is dropped or dismissed by the Judge, the defendant does not automatically get his or her weapons back. That is up to the County prosecutor’s office in the county in which the restraining order was filed.

https://www.njrestrainingorderlawyers.com/forfeiture-of-weapons-in-nj-restraining-order-cases/

[Cyber Liberty]

A TRO temporarily denies a citizen of his liberty,  a red flag law temporarily sequesters a citizen's property, in each case pending the application of due process.    Is property more sacrosanct than liberty?   

Stay on topic.  You're inserting a discussion about TROs into a thread about Red Flags.  They are not the same thing, and I am not interested in watching a thread expand to 10 pages while you argue about TROs.  You have already started  arguing about whether they are the same thing.

[Cyber Liberty]

Reality is different.

When a temporary restraining order (TRO) is filed in NJ, the police will seize any and all weapons that the defendant has in their possession and their home. If a final restraining order (FRO) is ultimately issued, then the defendant will be prohibited from possessing those weapons permanently. And, even if the TRO is dropped or dismissed by the Judge, the defendant does not automatically get his or her weapons back. That is up to the County prosecutor’s office in the county in which the restraining order was filed.

https://www.njrestrainingorderlawyers.com/forfeiture-of-weapons-in-nj-restraining-order-cases/

Possession is 9/10ths of the law.  And it should not cost money to retrieve weapons wrongfully seized.

[roamer_1]

Possession is 9/10ths of the law.  And it should not cost money to retrieve weapons wrongfully seized.

And unlike a mirandized thug, since you haven't been arrested, no lawyer is provided if you cannot afford your own. So even to prove your innocence (which is Bass-ackwards too, btw), the fortune to have legal representation must come out of your own pocket...

Hence, the poor man, unjustly accused, and deprived of property, has no recourse.

[Cyber Liberty]

And unlike a mirandized thug, since you haven't been arrested, no lawyer is provided if you cannot afford your own. So even to prove your innocence (which is Bass-ackwards too, btw), the fortune to have legal representation must come out of your own pocket...

Hence, the poor man, unjustly accused, and deprived of property, has no recourse.

That's not a bug, it's a feature of our lawless courts.

[Jazzhead]

Stay on topic.  You're inserting a discussion about TROs into a thread about Red Flags.  They are not the same thing, and I am not interested in watching a thread expand to 10 pages while you argue about TROs.  You have already started  arguing about whether they are the same thing.

Well, see @thackney 's post above.  Apparently, at least in New Jersey,  TROs are linked directly to the temporary sequestration of firearms.   When a TRO is issued in a domestic violence situation,  the accused person's firearms are temporarily taken together with his liberty.  If the TRO becomes (following due process) a final restraining order (FRO),  the sequestration of his firearms becomes permanent.    (Thackney raises a separate question about if the FRO is NOT issued,  the return of the man's firearm is apparently not guaranteed.   If that's so, I agree with him that this appears unjust and arbitrary).

But I am most certainly "staying on topic".    A red flag law is very similar to a TRO,  directed at property rather than a person's liberty.    If you support the general concept of a TRO in domestic abuse scenarios,  then logically you ought to support the concept of a  well-drafted red flag law.       

[roamer_1]

Well, see @thackney 's post above.  Apparently, at least in New Jersey,  TROs are linked directly to the temporary sequestration of firearms.   When a TRO is issued in a domestic violence situation,  the accused person's firearms are temporarily taken together with his liberty. 

Domestic violence - A crime has been committed.

[Cyber Liberty]

Well, see @thackney 's post above.  Apparently, at least in New Jersey,  TROs are linked directly to the temporary sequestration of firearms.   When a TRO is issued in a domestic violence situation,  the accused person's firearms are temporarily taken together with his liberty.  If the TRO becomes (following due process) a final restraining order (FRO),  the sequestration of his firearms becomes permanent.    (Thackney raises a separate question about if the FRO is NOT issued,  the return of the man's firearm is apparently not guaranteed.   If that's so, I agree with him that this appears unjust and arbitrary).

But I am most certainly "staying on topic".    A red flag law is very similar to a TRO,  directed at property rather than a person's liberty.    If you support the general concept of a TRO in domestic abuse scenarios,  then logically you ought to support the concept of a  well-drafted red flag law.     

They are not the same thing, as explained by at least two other people above.

This is an attempt to frame the discussion as "If you believe X, then you must accept unrelated Y."  Not gonna fly.  I don't want a good thread about what happens when somebody is unfairly accused of something become a thread about TROs.

That is all.

[roamer_1]

That's not a bug, it's a feature of our lawless courts.

With emphasis:

Accusation without a crime being committed, on the basis of what one MAY do.
Property seized without a crime having been committed.
No Miranda rights.
Must prove innocence, rather than the state proving guilt.
Proving innocence is very often trying to prove a negative, which is impossible.
YOU must provide for your defense - and if you cannot afford a lawyer, well, tough shit for you then.

This is a travesty.

[txradioguy]

And unlike a mirandized thug, since you haven't been arrested, no lawyer is provided if you cannot afford your own. So even to prove your innocence (which is Bass-ackwards too, btw), the fortune to have legal representation must come out of your own pocket...

Hence, the poor man, unjustly accused, and deprived of property, has no recourse.

And that is why I've chosen to protect myself and my wife with a membership in USCCA.  They give me the resources to protect against unlawful seizures in these unconstitutional red flag law issues as well as if (God forbid) I actually have to use my weapon in self defense.

[roamer_1]

And that is why I've chosen to protect myself and my wife with a membership in USCCA.  They give me the resources to protect against unlawful seizures in these unconstitutional red flag law issues as well as if (God forbid) I actually have to use my weapon in self defense.

Not that you should have to...

[Cyber Liberty]

With emphasis:

Accusation without a crime being committed, on the basis of what one MAY do.
Property seized without a crime having been committed.
No Miranda rights.
Must prove innocence, rather than the state proving guilt.
Proving innocence is very often trying to prove a negative, which is impossible.
YOU must provide for your defense - and if you cannot afford a lawyer, well, tough shit for you then.

This is a travesty.

It is.  Even if you act as your own attorney, you still have to fork over a hundred or two in "court costs" to the gummint to even get your day in court.  Lawyers are cool with this.

[roamer_1]

It is.  Even if you act as your own attorney, you still have to fork over a hundred or two in "court costs" to the gummint to even get your day in court.  Lawyers are cool with this.

Not to mention, like an impound lot, you get whacked an exorbitant storage fee...
My experience in Eastern WA... It would cost more than the firearm was worth to get it sprung. Better to just go get another (which I did of course).

[Jazzhead]

They are not the same thing, as explained by at least two other people above.

This is an attempt to frame the discussion as "If you believe X, then you must accept unrelated Y."  Not gonna fly.  I don't want a good thread about what happens when somebody is unfairly accused of something become a thread about TROs.

That is all.

The man wasn't "unfairly accused".   He was merely mistakenly accused.    The accusation was of domestic violence.   Yes, it was mistakenly applied to the wrong person,  but that doesn't invalidate the concept that a woman with a credible fear can seek temporary protection from her spouse or partner (whether through a TRO or sequestration of his gun).   Otherwise, the woman has no remedy other than to hope the abuser doesn't shoot straight enough to kill her.   

[txradioguy]

Not that you should have to...

I agree.  But the reality is that even if the shooting is legit and you are completely in the right...you'll still end up wearing bracelets no matter how temporarily it might be...and you still might have a local DA or County Prosecutor who is anti gun that decides to drag you into court over you defending your house or family.

Or as we're not seeing...you're either falsely accused or suffer a case of mistaken identity and cops acting under Red Flag laws seize your weapons and detain you.