The article is misleading is that it implies a lack of due process. This man will undoubtedly get his gun back after he explains the situation to the judge. That's due process.
It is not up to law enforcement to make the call - it received a credible report of domestic abuse and took the gun away pending the hearing with the judge. That's no different than the issuance of a temporary restraining order following a credible charge of domestic abuse - an direct imposition on an individual's personal liberty far more onerous IMO than temporarily taking his gun away. The TRO remains in place until the matter is adjudicated. So, too, is the temporary deprivation of the firearm.
That's how due process works - why should a firearms owner be accorded special rights?
The article is misleading is that it implies a lack of due process. This man will undoubtedly get his gun back after he explains the situation to the judge. That's due process.
It is not up to law enforcement to make the call - it received a credible report of domestic abuse and took the gun away pending the hearing with the judge. That's no different than the issuance of a temporary restraining order following a credible charge of domestic abuse - an direct imposition on an individual's personal liberty far more onerous IMO than temporarily taking his gun away. The TRO remains in place until the matter is adjudicated. So, too, is the temporary deprivation of the firearm.
That's how due process works - why should a firearms owner be accorded special rights?
Friggin nonsense. How do you know how many firearms the guy has? Are you going to go take away all the firearms he might borrow from a buddy too? What if he uses a truck instead?
TROs have never prevented a damn thing.
And it isn't a 'special right' ... It is a normative natural right not to have your property seized.
Better impound his truck too, and all his kitchen knives and hammers, for all the good it will do.
If a TRO can, because of a credible accusation, temporarily deprive a man of his liberty pending a due process hearing, then what's the difference between such a TRO and a temporary sequestration of the man's property? The only explanation I can see (especially since a temporary deprivation of a man's liberty is far more onerous than a temporary deprivation of his property) is that gun owners seem to believe they should have special rights.
The article is misleading is that it implies a lack of due process. This man will undoubtedly get his gun back after he explains the situation to the judge. That's due process.
It is not up to law enforcement to make the call - it received a credible report of domestic abuse and took the gun away pending the hearing with the judge. That's no different than the issuance of a temporary restraining order following a credible charge of domestic abuse - an direct imposition on an individual's personal liberty far more onerous IMO than temporarily taking his gun away. The TRO remains in place until the matter is adjudicated. So, too, is the temporary deprivation of the firearm.
That's how due process works - why should a firearms owner be accorded special rights?
The article is misleading is that it implies a lack of due process. This man will undoubtedly get his gun back after he explains the situation to the judge. That's due process.
It is not up to law enforcement to make the call - it received a credible report of domestic abuse and took the gun away pending the hearing with the judge. That's no different than the issuance of a temporary restraining order following a credible charge of domestic abuse - an direct imposition on an individual's personal liberty far more onerous IMO than temporarily taking his gun away. The TRO remains in place until the matter is adjudicated. So, too, is the temporary deprivation of the firearm.
That's how due process works - why should a firearms owner be accorded special rights?
If a TRO can, because of a credible accusation, temporarily deprive a man of his liberty pending a due process hearing, then what's the difference between such a TRO and a temporary sequestration of the man's property? The only explanation I can see (especially since a temporary deprivation of a man's liberty is far more onerous than a temporary deprivation of his property) is that gun owners seem to believe they should have special rights.Simply enough, the rifles and handguns he lovingly placed in the gun safe will be handled like cordwood, stocks marred and dinged, muzzles dinged (affects accuracy and value) and on some high end rifles, that damage can cause the value of the firearms to decrease. Condition is important, too. Whether they are historically significant, family heirlooms, expensive custom guns, or just cheap pawnshop shooters, you can bet the only ones treated really well will be ones the confiscating agents might want to add the their collections. Should the owner be able to recover his property, you can bet the burden of proof of any damage will lie with the owner, and it is highly unlikely that would be (or in some cases, could be) compensated.
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.Now what makes that scary is that there are some 40 or 50 people posting on bookface with the same first and last name as mine, although none of them is me. My name isn't even all that common.
“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.â€
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."
This innocent citizen looked nothing like the man with the same name, yet they took his guns anyway. He has the burden of having to appear in court and to pay all costs to get his guns back.
???? The gun was taken away period. It is now up to him to prove that he is innocent. He's had a run in with the law. Good luck getting that gun back.
Now what makes that scary is that there are some 40 or 50 people posting on bookface with the same first and last name as mine, although none of them is me. My name isn't even all that common.
I knew a fellow named Smith (I'll leave his first name out, but it wasn't John), who had a problem in Denver decades ago because there were six or seven other fellows with his first and last name, and he was always getting collection notices and the like from one of the others' doings. How many people will suffer over muddled identity, even when it shouldn't be?
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.â€
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."
This innocent citizen looked nothing like the man with the same name, yet they took his guns anyway. He has the burden of having to appear in court and to pay all costs to get his guns back.
The article is misleading is that it implies a lack of due process. This man will undoubtedly get his gun back after he explains the situation to the judge. That's due process.
It is not up to law enforcement to make the call - it received a credible report of domestic abuse and took the gun away pending the hearing with the judge. That's no different than the issuance of a temporary restraining order following a credible charge of domestic abuse - an direct imposition on an individual's personal liberty far more onerous IMO than temporarily taking his gun away. The TRO remains in place until the matter is adjudicated. So, too, is the temporary deprivation of the firearm.
That's how due process works - why should a firearms owner be accorded special rights?
People who want to seize all guns have zero trouble with this man's story. The tragedy for them is when he gets them back.
Bull, he has to not only go to court, but burden the cost of those court sessions.
To the mind of a lawyer, that isn't a bug, it's a feature. It keeps the riff raff out of the Courts. To the mind of a gun grabber it's a short delay in hopes of taking this guy's guns forever on a technicality. Stamp him a paper criminal so he can never buy a gun again. The two sets of people I described work hand in glove to disarm victims who might shoot back at their privileged class.
It sounds sick because it is, but such is the state of our legal system. It's been an engine of progressives for years.
@Cyber Liberty I can hear it now...â€well if he’s done. I thing wrong he shouldn’t have a problem going to court to get his weapons back.â€
Wrong again, sir. It's not "due process" if you can only get your property back if you can prove you're innocent. There is the usual litany of incorrect reasoning in the rest of the post, so no point arguing that.
Bull, he has to not only go to court, but burden the cost of those court sessions.
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.
preserve the status quo ante while due process unfolds.
To the mind of a lawyer, that isn't a bug, it's a feature. It keeps the riff raff out of the Courts. To the mind of a gun grabber it's a short delay in hopes of taking this guy's guns forever on a technicality. Stamp him a paper criminal so he can never buy a gun again. The two sets of people I described work hand in glove to disarm victims who might shoot back at their privileged class.
It sounds sick because it is, but such is the state of our legal system. It's been an engine of progressives for years.
Do you object to the ability of a battered spouse to go to court to get a TRO against her mate?
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?
Technically true about the burden, but it doesn't work that way in real life.
The burden is on whomever wants to change the current state of affairs.
Someone else has your stuff, you must make the argument to get it back
The difference being, the spouse is battered. A CRIME has been committed.
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?
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?
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"?
A TRO temporarily prohibits voluntary behavior. A red flag law seizes private property without due process.
Red flag laws are most commonly used in situations of domestic abuse. Why is my analogy to a TRO "crap"?
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.
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?
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/ (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.
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.
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.
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.
That's not a bug, it's a feature of our lawless courts.
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.
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.
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.
Not that you should have to...
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.
It is only your opinion that TROs and red flag laws are "unrelated". @thackney has presented evidence that, at least in New Jersey, they are not only related, but linked. And the purpose of that linkage is to protect the victims of potential domestic abuse.
And demonstrate how they are abused.
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.
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.
It is only your opinion that TROs and red flag laws are "unrelated". @thackney has presented evidence that, at least in New Jersey, they are not only related, but linked. And the purpose of that linkage is to protect the victims of potential domestic abuse.
Is it reasonable he has to pay court costs and an attorney to get his weapons back?
Told ya.
The man wasn't "unfairly accused". He was merely mistakenly accused.
Thats pure dissembling right there.
If you are mistakenly accused of something you didn't do...you ARE unfairly accused.
And demonstrate how they are abused.
a domestic abuser with a gun is more dangerous than a domestic abuser without a gun.
I have no objection to the linkage - a domestic abuser with a gun is more dangerous than a domestic abuser without a gun. But I agree with you that, if due process concludes that a restraining order is unnecessary, any related gun sequestration should be concomitantly lifted.
@thackney
That's the way I saw it too. "Unfair" == "mistaken" but "TRO" != "red flag." Semantic wordplay.
A 'domestic abuser' by definition, HAS ALREADY COMMITTED A CRIME!
No, words have meanings. If this person had been correctly identified as the domestic abuser, it is not "unfair" to temporarily restrain his liberty and/or sequester his firearms pending the application of due process.
This person was simply the victim of mistaken identity. That's not "unfair", it's merely a mistake (and one that will undoubtedly be quickly corrected and his firearm returned).
A 'domestic abuser' by definition, HAS ALREADY COMMITTED A CRIME!
That's not "unfair", it's merely a mistake (and one that will undoubtedly be quickly corrected and his firearm returned).
Answer my question.
...at no cost to the unfairly accused?
Do you mean the mistaken identity guy or the guy credibly accused of domestic violence? Are you suggesting free legal representation as a new form of welfare?
I have no objection to the linkage - a domestic abuser with a gun is more dangerous than a domestic abuser without a gun. But I agree with you that, if due process concludes that a restraining order is unnecessary, any related gun sequestration should be concomitantly lifted.
@thackney
Do you mean the mistaken identity guy or the guy credibly accused of domestic violence? Are you suggesting free legal representation as a new form of welfare?
Which one? (There are a lot of posts flying back and forth)
http://www.gopbriefingroom.com/index.php?action=post;quote=2038486;topic=372746.50 (http://www.gopbriefingroom.com/index.php?action=post;quote=2038486;topic=372746.50)
@Cyber Liberty
I don't think you got the right link.
If there was ever a case that showed why red flag laws are completely unacceptable, this is it. It's impossible for a reasonable person to defend.
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.One of my firearms was stolen. It took months to get it back.
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.
One of my firearms was stolen. It took months to get it back.
It wasn't taken over a question of my identity, nor over any action against me by Law Enforcement, mistaken or otherwise. I was robbed, and then had to prove ownership, and get my firearm returned in an area where the dockets are full, but not anything like big cities.
Did you have to pay to get it back? Clear a background check?No, I didn't have to pay, and I have a CCW Permit, so no background check.
No, I didn't have to pay, and I have a CCW Permit, so no background check.
I had filed a police report on the theft a day before it was recovered (by police) during an arrest.
That's possible. I'll just repeat the question in a more clear manner.
Is it appropriate for a State to force someone to pay to rectify an error made by the State?
If there was ever a case that showed why red flag laws are completely unacceptable, this is it. It's impossible for a reasonable person to defend.
It's no more "impossible to defend" than with any other TRO based on a credible accusation of danger to another. The State's job is to vet the credibility of an accusation before imposing the remedy of a TRO.
It's no more "impossible to defend" than with any other TRO based on a credible accusation of danger to another. The State's job is to vet the credibility of an accusation before imposing the remedy of a TRO.
But they don't. Virtually all jurisdictions accept the petitioner's motion without any vetting. Police, prosecutors, and judges will state directly that they accept a woman's petition against any male, because the danger is too great if they don't, in error. They will also tell you that this sentiment was more or less codified as fallout from the passage of the Violence Against Women Act of 1994.
Read a bit of background:
Protective Orders, Burdens of Proof, and Court Procedure
In most jurisdictions, the proponent that domestic abuse has occurred carries the burden of proving the claim by only a “preponderance of the evidence.†A “preponderance†simply means that the party must prove that it is more likely than not that the abuse occurred. This is the lowest legal standard of proof in the court system and a great deal of discretion is left to a trial court in determining whether that standard has been met. All too often, Courts will issue a restraining order on extraordinarily weak evidence in order to err on the side of caution. After all, no Judge seeking reelection wants their picture splashed across the pages of the daily news trumpeting their failure to protect an abused person who is then later assaulted.
It is equally confounding that civil domestic abuse hearings are conducted with little time to prepare, particularly for a defendant, as well as in an abbreviated fashion to accommodate the court’s crowded docket. Whereas a person alleging domestic abuse may plan their case ahead, compiling documentation or manufacturing other evidence to support their claims, a defendant is often required to prepare a response to allegations of abuse in one or two weeks or less. When an evidentiary hearing is held, the Court may often limit testimony and evidence to fit the case into its busy schedule, often affording the parties less than an hour or two to present the case. Since procedurally the defendant presents their case second, his time is often extraordinarily limited.
In most jurisdictions, an application for a domestic abuse restraining order will include seeking an ex parte emergency order followed later by more permanent order issued after a return hearing in court. In order for an ex parte restraining order to enter, a person (often assisted by a battered woman’s shelter, advocate or domestic abuse office) may file a Motion and Affidavit seeking ex parte relief. Ex parte relief is emergency relief and the allegations considered by the court are one sided without and rebuttal by the person accused. Based on this one sided submission, the Court may issue a temporary restraining order that removes the defendant from the family home, precludes contact between the defendant and the victim and, often the children, and sets the matter for a court hearing in the near future, but often weeks away.
At the return hearing, the parties are advised to bring their witnesses and evidence to address the issues of abuse raised by the ex parte petition. At this hearing, the Court in many jurisdictions will offer a defendant the following options:
• Agree to the Restraining Order with no findings that abuse has occurred;
• Proceed to an evidentiary hearing to Contest the Allegations.
The first option is often attractive given the low standards of proof that apply at domestic abuse hearings and the significant impact of a finding that abuse has occurred. Remember a finding that domestic abuse has occurred may create a presumption that the person should not be awarded custody of children. Agreeing to a restraining order without any findings of abuse may be a way for the defendant to live to fight another day in family court where there are custody issues involved. The downside of such a concession is that:
• a restraining order will enter for as long as a year, unless modified by a subsequent court order, that may restrict contact with the family home and children involved;
• any violation of the order results in criminal action, this providing fodder for future false allegations that the order was violated;
• the victim may later try to extend the order beyond its current time period and may often do so on flimsy evidence.
The second option, contesting the allegations in court, requires an aggressive defense. All too often crowded domestic abuse calendars result in foreshortened hearings in which a court enters an order that can significantly affect the future rights of a defendant. You should always consider hiring an attorney is such settings to ensure that your rights are protected, that evidence is properly presented and so that inconsistencies in false allegations of abuse may be exposed.
https://www.hg.org/legal-articles/fighting-false-allegations-of-domestic-abuse-6008 (https://www.hg.org/legal-articles/fighting-false-allegations-of-domestic-abuse-6008)
This flawed model, rife with abuse, is not a good example upon which further law should be based.
There you go injecting reality into a conversation again @EdJames!
It's no more "impossible to defend" than with any other TRO based on a credible accusation of danger to another. The State's job is to vet the credibility of an accusation before imposing the remedy of a TRO.
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.My wife and I have US Law Shield
@austingirl And @Smokin Joe have it spot on: THEY HAD THE WRONG GUY, and now he has the bear the burden of proof ands costs of getting a lawyer, taking time off of work, the damage done to his reputation,...... because the government made an error. Screw that $H!T.
:yowsa: pointing-up
And You Know Who thinks that's swell, because this is an anomaly. **nononono*@Cyber Liberty We agree on 85-90% but you are dead wrong. It is an anomaly now for two reasons:
Other peoples money (like clients) is never a problem.
@Cyber Liberty We agree on 85-90% but you are dead wrong. It is an anomaly now for two reasons:
1) It's not a federal law (YET)
2) The libtards have not figured out how to use them to wreak havoc (YET).
ONce they do all bets are off. They will make SWATTING look a summer vacation.
The only possible remedy I can see is if false reporting results in fines, imprisonment, and a cash penalty paid to falsely accused victims.
At which the laws will become useless.
We still agree. I am not the one who called it an anomaly. I think it's revolting, and today's anomaly is tomorrow's widespread rape of our rights.My apologies, I went back and reread what you wrote, it was the dipsticks.
@verga
My apologies, I went back and reread what you wrote, it was the dipsticks.
My apologies, I went back and reread what you wrote, it was the dipsticks.
I guess we need dipsticks. They tell us how deep it is.:yowsa:
In most jurisdictions, an application for a domestic abuse restraining order will include seeking an ex parte emergency order followed later by more permanent order issued after a return hearing in court. In order for an ex parte restraining order to enter, a person (often assisted by a battered woman’s shelter, advocate or domestic abuse office) may file a Motion and Affidavit seeking ex parte relief. Ex parte relief is emergency relief and the allegations considered by the court are one sided without and rebuttal by the person accused. Based on this one sided submission, the Court may issue a temporary restraining order that removes the defendant from the family home, precludes contact between the defendant and the victim and, often the children, and sets the matter for a court hearing in the near future, but often weeks away.
There you go injecting reality into a conversation again @EdJames!@EdJames @Bigun ...and doing it nicely, but left out the parts where CPS will lie (no other word for it) and have suborned perjury. I have seen both. For the victims of such, there is little recourse, because they were often not anticipating such behaviour and did not have the means to prove it.
That is indeed how a TRO works - the allegation of an emergency leads to a temporary denial of liberty pending the later hearing when due process is provided for the accused. It is hard to see any other way to do it, given the exigencies. The first order of business is to maintain the status quo pending the hearing, since the failure to do so may lead to harm or even death. That's the purpose of a red flag law as well. Can it be abused? Of course - but when it works as intended it saves lives.
I fail to see any principled argument by which a TRO is an acceptable imposition on liberty but a red flag law is not.
That is indeed how a TRO works - the allegation of an emergency leads to a temporary denial of liberty pending the later hearing when due process is provided for the accused. It is hard to see any other way to do it, given the exigencies. The first order of business is to maintain the status quo pending the hearing, since the failure to do so may lead to harm or even death. That's the purpose of a red flag law as well. Can it be abused? Of course - but when it works as intended it saves lives.You left out the part about the husband being locked out of and required to stay away from his home and children while the ex-wife-to-be and her boyfriend sell off his stuff. I have seen it happen more than once. It's a common opening gambit in a divorce.
I fail to see any principled argument by which a TRO is an acceptable imposition on liberty but a red flag law is not.
@EdJames @Bigun ...and doing it nicely, but left out the parts where CPS will lie (no other word for it) and have suborned perjury. I have seen both. For the victims of such, there is little recourse, because they were often not anticipating such behaviour and did not have the means to prove it.
@austingirl And @Smokin Joe have it spot on: THEY HAD THE WRONG GUY, and now he has the bear the burden of proof ands costs of getting a lawyer, taking time off of work, the damage done to his reputation,...... because the government made an error. Screw that $H!T.Error, schmerror. They had the wrong guy, they KNEW they had the wrong guy, and they should compensate him for everything from lost work time, any damages, and any illegal incarceration, and return his property, compensating him for damage to that as well, should there be any. It shouldn't cost the guy a dime when it is over.
False Allegations of Abuse
One of most significant criticisms of the legal system that addresses domestic abuse, includes the facility and regularity in which false allegations of abuse are made and believed by courts with the primary intent to seek an advantage in divorce and custody proceedings.
One of the major catalysts for this abuse of the system is the broad definition that exists for domestic abuse. Under most statutory schemes, domestic abuse means the intentional and unlawful infliction of physical harm, bodily injury, assault, or the intentional and unlawful infliction of the fear of imminent physical harm, bodily injury, or assault between family or household members, or a criminal sexual act, committed against a family or household member by another family or household member. “Fear of harm†is an extraordinarily subjective standard and one that may be very difficult to combat. A raised voice or a raised had or any gesture that is interpreted as threatening may be used to claim that domestic abuse has occurred. This is problem is compounded for men who are often larger than women and perceived as more aggressive or stronger based on broad societal generalizations that may be reflected in the perceptions of law enforcement officer who make police reports and court room judges who render rulings.
@Bigun
@Sanguine
@roamer_1
@Smokin Joe
Here is another dirty little aspect about TROs that is also implicitly manifest Red Flag laws:
(From the same link in the above post.)
Someone fears that harm may come.... no harm actually has to have been committed....
Is it a crime for a man to slam his fist down on his coffee table in his home?
Is it a crime for a woman to throw her glass pitcher across her kitchen and smash it on her wall?
Obviously not, however both are deemed "legitimate" causes of "fear of harm."
:pondering:
@Bigun
@Sanguine
@roamer_1
@Smokin Joe
Here is another dirty little aspect about TROs that is also implicitly manifest in Red Flag laws:
(From the same link in the above post.)
Someone fears that harm may come.... no harm actually has to have been committed....
Is it a crime for a man to slam his fist down on his coffee table in his home?
Is it a crime for a woman to throw her glass pitcher across her kitchen and smash it on her wall?
Obviously not, however both are deemed "legitimate" causes of "fear of harm."
:pondering:
Thanks @EdJames. It is abundantly clear to me that this is a tar baby that we should not come within ten miles of!
@Bigun
@Sanguine
@roamer_1
@Smokin Joe
Here is another dirty little aspect about TROs that is also implicitly manifest in Red Flag laws:
(From the same link in the above post.)
Someone fears that harm may come.... no harm actually has to have been committed....
Is it a crime for a man to slam his fist down on his coffee table in his home?
Is it a crime for a woman to throw her glass pitcher across her kitchen and smash it on her wall?
Obviously not, however both are deemed "legitimate" causes of "fear of harm."
:pondering:
@Cyber Liberty forgot to ping you to the above, bud!
333cleo
@BigunI have seen it more than once. Big guy, works on oil rigs, can be as gentle as they come, but size and occupation matter, and perceptions by those who make assumptions about people based on their line of work.
@Sanguine
@roamer_1
@Smokin Joe
Here is another dirty little aspect about TROs that is also implicitly manifest in Red Flag laws:
(From the same link in the above post.)
Someone fears that harm may come.... no harm actually has to have been committed....
Is it a crime for a man to slam his fist down on his coffee table in his home?
Is it a crime for a woman to throw her glass pitcher across her kitchen and smash it on her wall?
Obviously not, however both are deemed "legitimate" causes of "fear of harm."
:pondering:
Here is another dirty little aspect about TROs that is also implicitly manifest in Red Flag laws:
(From the same link in the above post.)
Someone fears that harm may come.... no harm actually has to have been committed....
Is it a crime for a man to slam his fist down on his coffee table in his home?
Is it a crime for a woman to throw her glass pitcher across her kitchen and smash it on her wall?
Obviously not, however both are deemed "legitimate" causes of "fear of harm."
:pondering:
Anybody who thinks a Red Flag law won't be weaponized as well is on crack. "It's a feature, not a bug."
. . . so now you can live with the fact you destroyed your own argument about how wonderful a Red Flag law would be.
@Cyber Liberty , I am not here to conduct rhetorical warfare, but to have a discussion. I am not claiming red flag laws and laws permitting TROs are "wonderful", but that one cannot in principle support one without supporting the other. They are both variations on the same theme - to address an emergency situation by preserving the status quo for a limited period of time so that the courts can properly adjudicate the matter in accordance with the Constitutional requirement of due process.
Contrary to @roamer_1 's assertion, TROs and red flag laws do not differ in that the former address situations where actual crimes have been committed but the latter do not. No, both address emergency situations - credible threats of future harm. Again, the lack of "due process" when granting a TRO or a temporary sequestration of a firearm is due entirely to the reality of the impending alleged emergency. Due process is delayed, but it is not denied.
You and, I believe, others have declined to denounce TROs while insisting that red flag laws are beyond the pale. That, sir, is hypocrisy. Either you favor both devices to address emergencies, or you denounce both and insist that proactive deprivations of liberty have no place under the Constitution, even in the face of potential grievous harm. But to acknowledge the efficacy and legality of temporary restraints on liberty in response to emergency while opposing temporary sequestrations of dangerous property in similar circumstances is to "destroy" the moral underpinnings of your opposition to red flag laws. You oppose such laws not out of principle but selfishness. Yet another example of "rules for thee but not for me".
Due process is delayed, but it is not denied.
And that's somehow ok with you?
He's equally OK with charging the victim of delayed/denied Justice attorney and court costs in attempting to right the wrong. It's not his money, and it benefits lawyers' pocketbooks.
And that's somehow ok with you?
My wife and I have US Law Shield
He's equally OK with charging the victim of delayed/denied Justice attorney and court costs in attempting to right the wrong. It's not his money, and it benefits lawyers' pocketbooks.
Why do you accuse me of advocating a position because it will "benefit lawyers' pocketbooks"? Are you incapable of conducting a discussion in good faith?
It is better than taking no action and letting a dangerous individual keep his firearms and bring them to bear to shoot up a family or school.
The world is not perfect. Sometimes, in an emergency, you have to diffuse the situation first, and sort it all out later.
I continue to be surprised at the reflexive opposition to red flag laws. Among the "gun control" measures being currently touted, they alone are directed at the nut who fires the gun, not just guns in general. The old saw is that guns don't kill people, people kill people. Well, fine - but then you resist even measures targeted at the people who kill people, just because they involve the precious subject of guns.
Selfishness, pure selfishness.
I continue to be surprised at the reflexive opposition to red flag laws. Among the "gun control" measures being currently touted, they alone are directed at the nut who fires the gun, not just guns in general. The old saw is that guns don't kill people, people kill people. Well, fine - but then you resist even measures targeted at the people who kill people, just because they involve the precious subject of guns.
Selfishness, pure selfishness.
I continue to be surprised at the reflexive opposition to red flag laws. Among the "gun control" measures being currently touted, they alone are directed at the nut who fires the gun, not just guns in general. The old saw is that guns don't kill people, people kill people. Well, fine - but then you resist even measures targeted at the people who kill people, just because they involve the precious subject of guns.I try not the read your drivel but his requires a direct response, because you are a special kind of stupid.
Selfishness, pure selfishness.
It is better than taking no action and letting a dangerous individual keep his firearms and bring them to bear to shoot up a family or school.You seem to be missing that posting any threat to engage in such nefarious acts is a crime in and of itself.
The world is not perfect. Sometimes, in an emergency, you have to diffuse the situation first, and sort it all out later.
I continue to be surprised at the reflexive opposition to red flag laws. Among the "gun control" measures being currently touted, they alone are directed at the nut who fires the gun, not just guns in general. The old saw is that guns don't kill people, people kill people. Well, fine - but then you resist even measures targeted at the people who kill people, just because they involve the precious subject of guns.
Selfishness, pure selfishness.
You seem to be missing that posting any threat to engage in such nefarious acts is a crime in and of itself.
Making credible threats to engage in such mayhem is a crime. Conspiring with anyone else to do so is a crime.
QED, you have the means to stop such maniacs, who are telegraphing their intent via the internet and other means--and are being stopped using current law.
Looking at the recent events, and even now, the interdiction of such proclaimed intent to engage in such activity, without red flag laws, indicates that current laws are indeed adequate to the task if used.
Opening any Civil Right up to loss on the standard that someone says they think someone MIGHT maybe do something, is to eviscerate that right based on nothing more than gossip.
If someone once found a picture of you in your childhood wearing anything which might have indicated a sympathy (maybe a souvenir kepi or a t-shirt with a Confederate Battle Flag on it) toward the South during the Civil War, by today's standards, that would indicate racist sympathies, and you could be muzzled pending a hearing (at your expense) on whether or not you were going to engage in hate speech--after they took your keyboard away and injected botox into your vocal cords to keep you from saying racist things.
Essentially, that is how red flag laws treat gun owners.
TRUE.
I swear, @EdJames , there must be a course and a handbook, because my ex blew out the stops and tried everything you can think of against me in our divorce - To include applying for TRO, claiming violence against her, and the children.
Fortunately for me, the standard here appears to be 'imminent harm' and requires proof - More than just testimony. Had I ever thumped on her, or the kids, I am sure she'd have got her way. But even given my rowdy past, there was never a time that I was violent except in defending myself or others against violence.
Gratefully, she was denied. In that, and every other attempt to take my shit and cut me off from my kids. But she sure enough tried. Over and over and over again.
I am not against TRO - I think it has a purpose. A woman beat half to death has little reason to claim other than the one who did it to her, and she obviously needs protection. In fact, the TRO does nothing to actually protect her, but if it is violated, it goes to the guilt of the perpetrator, and can serve to lock him in the can after the fact of the violation.
But to say it is not full of rampant abuse would be naive. In fact, I know personally some folks that were not as lucky as I was. If you have ever been convicted of an assault charge, as a instance, you are just screwed, guaranteed, regardless of the circumstances. And around here anyway, it is not uncommon for a man to have committed assault in his youth. Because of that one mistake, some thirty years ago, a woman can use the county and the state to grind him to dust.
Yup, all divorce lawyers are well versed in it!At some point the social serpents slither in and they are masters of prevarication and manipulation. Often outwardly attractive, well groomed, and demure seeming females, they are well versed in parsing swatting flies as threatening gestures and speaking loud enough to be heard as "shouting in a threatening manner".
Also, most police departments have at least one "special" officer that is trained to handhold the plaintiff through the process, and can usually get a judge to grant the TRO within hours.....
I like the idea of a reciprocal TRO rule: If somebody files an exaggerated claim to get a TRO and it's rejected, then the complainant should have the TRO issued on them.Actually, though it reeks of Hammurabi, I like it, too.
Should be part of more laws. Falsely claim a rape? Prison time. Falsely claim Sexual Harassment? Punishment ranging from forced attendance in a "class" to forking over the large sum of cash that would have been awarded in a lawsuit. SWATTING? Death penalty. As it is now, there is no consequence for filing a false report to get a TRO, so natch, it's used offensively. Even a cave man can see that shit coming.
I sure am glad somebody prevailed over me to keep this TRO bullshit linked to a story about a fellow who got his guns grabbed because of an erroneous application of a Red Flag.
Actually, though it reeks of Hammurabi, I like it, too.
False accusers should have to bear the legal costs of the formerly accused and vindicated person(s) as well.
Hammurabi is best known for having issued the Code of Hammurabi, which he claimed to have received from Shamash, the Babylonian god of justice. Unlike earlier Sumerian law codes, such as the Code of Ur-Nammu, which had focused on compensating the victim of the crime, the Law of Hammurabi was one of the first law codes to place greater emphasis on the physical punishment of the perpetrator. It prescribed specific penalties for each crime and is among the first codes to establish the presumption of innocence. Although its penalties are extremely harsh by modern standards, they were intended to limit what a wronged person was permitted to do in retribution. The Code of Hammurabi and the Law of Moses in the Torah contain numerous similarities, but these are probably due to shared background and oral tradition, and it is unlikely that Hammurabi's laws exerted any direct impact on the later Mosaic ones.
I learnt a new thing today! I Goggled that, and got....Yep! "An eye for an eye" comes from that.
https://en.wikipedia.org/wiki/Hammurabi
I like the idea of a reciprocal TRO rule: If somebody files an exaggerated claim to get a TRO and it's rejected, then the complainant should have the TRO issued on them.
Should be part of more laws. Falsely claim a rape? Prison time. Falsely claim Sexual Harassment? Punishment ranging from forced attendance in a "class" to forking over the large sum of cash that would have been awarded in a lawsuit. SWATTING? Death penalty. As it is now, there is no consequence for filing a false report to get a TRO, so natch, it's used offensively. Even a cave man can see that shit coming.
I sure am glad somebody prevailed over me to keep this TRO bullshit linked to a story about a fellow who got his guns grabbed because of an erroneous application of a Red Flag.
A nice idea, but I doubt it would amount to anything. First, you have to prove that something didn't happen, which is a much, much, higher bar than just arguing that there is insufficient proof that it did. And then you have to prove that the false claim was malicious.With social media screenshots taken in the heat of passion, I think proof of malice would be easier.
But I suppose having those laws in place, even if they led to few convictions, might scare off some from trying.
With social media screenshots taken in the heat of passion, I think proof of malice would be easier.
People have a habit of boasting about their conquest when they succeed in using the law to screw someone over. They do so in a place or manner where it can be overheard.And documented, including boastful accounts of perjury. Screenshots of that should be sufficient to reopen a case--and bring charges, and allow for civil redress as well.
I try not the read your drivel but his requires a direct response, because you are a special kind of stupid.
Every single state (Read: EVERY SINGLE STATE) has involuntary confinement laws, do you understand that EVERY state. There is no need for a federal law of any kind. Combine those with your precious TRO's and life is good. It is not responsible gun owners fault if other people are too chicken shit to use them and we should not be punished for their cowardice. So for once do the smart thing and shit down and STFU.
I like the idea of a reciprocal TRO rule: If somebody files an exaggerated claim to get a TRO and it's rejected, then the complainant should have the TRO issued on them.
Should be part of more laws. Falsely claim a rape? Prison time. Falsely claim Sexual Harassment? Punishment ranging from forced attendance in a "class" to forking over the large sum of cash that would have been awarded in a lawsuit. SWATTING? Death penalty. As it is now, there is no consequence for filing a false report to get a TRO, so natch, it's used offensively. Even a cave man can see that shit coming.