Police Take Guns, Judge Gives Them Back...Some Positive Rulings on Red Flag Laws

[Speedo66]

Article discusses how judges feel about restoring gun rights after red flag removals. Feel 1st and 2nd amendment rights supersede vague proof as to person's state of mind.

"Judge Julie Spector, the chief civil judge of the King County Superior Court in Seattle, said these types of cases were the kind that could keep a judge up at night. She said that no judge has a crystal ball.
“We’re going to be on the front page if we make a mistake,” Ms. Spector said. “Nobody is taking this stuff lightly.”

Another judge said, when asked by a prosecutor to remove guns, "“The statute is not written such that the court can give the benefit of the doubt to law enforcement at the expense of Mr. Donnelly,”

Interesting read, here's the article:

https://www.nytimes.com/2019/11/18/us/gun-seizures.html

 

[sequins]

Stuck behind the dang wall, guess I'll have to subscribe

 

[theotherwaldo]

“We’re going to be on the front page if we make a mistake,” Ms. Spector said.

Judges that are more concerned with headlines than justice are a prime symptom of the problem.

 

[Tommygunn]

Judges that are more concerned with headlines than justice are a prime symptom of the problem.

While I think you're right, I don't think the judge quoted is necessarily more concerned with headlines.... seems the opposite.
Even judges face public reaction, which can sometimes result in headlines.
It does make a BIG DIFFERENCE what the judge's priorities are, though!

 

[theotherwaldo]

Most judges are really politicians.
Politicians are primarily concerned with maintaining or improving their positions.
Negative headlines are their primary obstacle... .

 

[Pudge]

This is in reality a difficult situation for judges. How would you feel if law enforcement petitioned the court to remove firearms from someone they believed to be a significant danger, the courts refused to act, and that person killed someone? I want to see clear instructions for charges, involuntary commitment or restoration of rights.
I believe that the highest purpose of government is to protect the rights and freedoms of the individual. That said, if the judge's decision results in death, I guarantee they will be blamed and excoriated, and there will be very little sympathy for restoration of civil rights from the bench. Legislators need to take some responsibility in the matter of protecting our rights and not leave it all in the hands of the judiciary.

 

[Pat Riot]

I recall many of my gun owner friends ranting about how some mass shooters acted suspiciously and should have been checked out before they killed a bunch of people.

These same friends have their panties in a bunch over Red Flag Laws.

I told them “You cannot have it both ways.”

 

[fireside44]

This is in reality a difficult situation for judges. How would you feel if law enforcement petitioned the court to remove firearms from someone they believed to be a significant danger, the courts refused to act, and that person killed someone? I want to see clear instructions for charges, involuntary commitment or restoration of rights.

It shouldn't be difficult. We pay judges, quite well I would add, not to involve feelings in court proceedings. But I agree on clarity.

Freedom and safety are not compatible. Freedom is guy getting his guns back and committing a bloodbath. Safety is lots of red flagging, including the judge for not giving us a "tough on guns" ruling. And we know that kind of safety doesn't work out in the end.

 

[Tommygunn]

Most judges are really politicians.
Politicians are primarily concerned with maintaining or improving their positions.
Negative headlines are their primary obstacle... .

Many.... possibly not most.

There is no doubt that many judges pay attention to BOTH political winds and cultural persuasions.

 

[boom boom]

My heart does not bleed for judges.

They risk their "reputations" but citizens risk potential death/injuries from judicial decisions every day. Judges may decide to release criminals due to evidentiary and procedural reasons, may fail to give domestic violence restraining orders, may give light sentences, probation, supervised release, etc. and many of these beneficiaries immediately re-offend up to and including murder.

Their decisions should be public and they should be fair game for criticism and review by that same public. They already have absolute immunity (created by judges of course) for any bad decisions that they make on the bench--that does not mean they should be immune to criticism. It comes with the job and the particular judge whining about being accountable is the cry of a bureaucrat worried about their pension. My answer is do not be a judge if a person cannot stand the heat of public criticism for doing what is right by the law.

 

[Phaedrus/69]

It does seem like lots of folks want to have it both ways. The NRA screams about mental health after each mass shooting but if a guy is acting like a nut and a court takes his guns everyone loses their minds. There's a whole lot of buck passing going on with real responsibility being a hot potato. Judges have to look at the black letter of the law and examine the case before they act. If a judge shows leniency and the person goes on to commit a crime we hear the odd word "yoots" tossed around and a lot of talk that the first offender should have simply been executed. But when a nut talks about shooting up his boarding school we suddenly have to consider his good family and his due process. At some point we need to pick one version and apply it to everyone.

 

[FROGO207]

Reminds me of a movie I once watched and one of the characters said something to the effect of "just shoot em all and let God sort em out". These red flag laws are one example of common sense on the downturn. IMHO While reminding everybody that state and local LEO already HAD some vetsion to paper and hold a citizen for evaluation already but usually required a judges OK and had due process built in. Tossing that hot potato around until enough of the population grows a set/spine to solve this is in nobodys best interest either. One can hardly look sideways these days without offending SOMEONE and I see this as our biggest problem. YMMV

 

[Deanimator]

If it happens to you, you need to sue anyone and everyone even tangentially involved.

It's time for some brushback pitches on 2nd Amendment rights.

 

[edwardware]

The NRA screams about mental health after each mass shooting but if a guy is acting like a nut and a court takes his guns everyone loses their minds.

No.

The Constitutional objection to Red Flag laws is because of the absence of due process, not the result of due process.

If "a court", respecting Constitutional due process, strips someone of their rights, that's just ye olde Criminal Judicial proceeding. We may occasionally object to the result, but I don't think anyone objects to the underlying process (other than the Left, ironically).

Again, it's the absence of Constitutional due process that is the problem; presumption of innocence, right to confront the accuser, right to a trial by jury, etc.

 

[Deanimator]

No.

The Constitutional objection to Red Flag laws is because of the absence of due process, not the result of due process.

If "a court", respecting Constitutional due process, strips someone of their rights, that's just ye olde Criminal Judicial proceeding. We may occasionally object to the result, but I don't think anyone objects to the underlying process (other than the Left, ironically).

Again, it's the absence of Constitutional due process that is the problem; presumption of innocence, right to confront the accuser, right to a trial by jury, etc.

The people pushing these measures do not believe in due process, nor indeed in the Constitution itself.

They seek to repeal the 2nd Amendment so that they can abolish the 1st, 4th and 5th without meaningful resistance.

 

[Elkins45]

If it happens to you, you need to sue anyone and everyone even tangentially involved.

It's time for some brushback pitches on 2nd Amendment rights.

I agree, although by the time you spend the money to get your guns back in the first place you might not have the funds to pursue it. There's no upside to being wronged by the government because they can use your tax dollars (and everyone else's) to beat you into submission. The government has unlimited finds to pay for its defense.

 

[FlSwampRat]

While reminding everybody that state and local LEO already HAD some version to paper and hold a citizen for evaluation already but usually required a judges OK and had due process built in.

Yes, my neighbor was Baker Acted (Held for three days for eval) and his wife had to sell his guns before he could return home. It was a good call because he committed suicide down the road, but judges and psychologists were involved and he had his day in court.

Once the subject is removed from the home there's no immediate reason to remove the guns. As long as they are disposed of by the time of the subjects return to the home, there is no danger to the subject or the public.
But you can't just Baker Act someone and take their guns on "say so", there has to be a judicial proceeding and psych eval done, Red Flag laws are popular because they circumvent that little step.

 

[Deanimator]

I agree, although by the time you spend the money to get your guns back in the first place you might not have the funds to pursue it. There's no upside to being wronged by the government because they can use your tax dollars (and everyone else's) to beat you into submission. The government has unlimited finds to pay for its defense.

It has to be a propaganda war as well. EVERYONE involved needs to be named and shamed and if necessary, confronted (non-violently). What's good for the goose is good for the gander.

 

[Lycidas Janwor]

This is in reality a difficult situation for judges. How would you feel if law enforcement petitioned the court to remove firearms from someone they believed to be a significant danger, the courts refused to act, and that person killed someone? I want to see clear instructions for charges, involuntary commitment or restoration of rights. I believe that the highest purpose of government is to protect the rights and freedoms of the individual. That said, if the judge's decision results in death, I guarantee they will be blamed and excoriated, and there will be very little sympathy for restoration of civil rights from the bench. Legislators need to take some responsibility in the matter of protecting our rights and not leave it all in the hands of the judiciary.

We can make up hypotheticals all day long to justify red flag laws. Perhaps I'm wrong, but has there been any instances throughout the past, oh, 20 years or so that validate or substantiate your concerns, that is, a court that doesn't allow for the confiscation of guns and because of the court's decision, a direct link can be found to a crime? I do very much agree with your last sentence.

 

[Lycidas Janwor]

It does seem like lots of folks want to have it both ways. The NRA screams about mental health after each mass shooting but if a guy is acting like a nut and a court takes his guns everyone loses their minds. There's a whole lot of buck passing going on with real responsibility being a hot potato. Judges have to look at the black letter of the law and examine the case before they act. If a judge shows leniency and the person goes on to commit a crime we hear the odd word "yoots" tossed around and a lot of talk that the first offender should have simply been executed. But when a nut talks about shooting up his boarding school we suddenly have to consider his good family and his due process. At some point we need to pick one version and apply it to everyone.

The fact of the matter is there is already laws on the books that give law enforcement the ability to intercede into a "dangerous" person's life in order to not only protect the public, but protect the potential perpetrator as well. The shootings at the HS in Browered (sp?) County Florida is the perfect example of the system not working, where it was reported multiple times by multiple sources that the shooter was dangerous and violent, and the shooter was arrested multiple times before the HS shooting. Fact is THE SYSTEM DIDN'T DO ITS JOB.

Now people are talking about new red flag laws to prevent these types of mass shootings when the reality of the fact is law enforcement and the courts and the "system" already in place could have and should have stopped the mass shooting at the HS in FL. but did not. Then to add insult to injury, the cowards in the sheriff's department in Broward (sp?) County FL sat outside the school while the shooting was going on inside the school. Complete and absolute failure on all levels of the "government" in charge of protecting its citizens in Broward (sp?) County, Florida.

 

[FROGO207]

The only way to win this war is to push back using their own tactics to beat them at their own game. Still we have to stick to truth, facts, and empathy only with no emotional reactions to win however. Enough pushback and lawsuits, will tend to put this off the rails.

 

[gonoles_1980]

I recall many of my gun owner friends ranting about how some mass shooters acted suspiciously and should have been checked out before they killed a bunch of people.

These same friends have their panties in a bunch over Red Flag Laws.

I told them “You cannot have it both ways.”

The issue is, taking the guns without due process. If someone is suspected, they should have a right to defend themselves before their guns are taken away. Most Red Flag laws force a person to prove their innocence, versus the presumption of innocence until proven guilty.

 

[fireside44]

Yes, my neighbor was Baker Acted (Held for three days for eval) and his wife had to sell his guns before he could return home. It was a good call because he committed suicide down the road, but judges and psychologists were involved and he had his day in court.

Once the subject is removed from the home there's no immediate reason to remove the guns. As long as they are disposed of by the time of the subjects return to the home, there is no danger to the subject or the public.
But you can't just Baker Act someone and take their guns on "say so", there has to be a judicial proceeding and psych eval done, Red Flag laws are popular because they circumvent that little step.

I don't think the wife was forced to sell guns because of him being baker acted. A judge has to rule mental incompetence before you lose gun rights. That's more involved than just going in to eval under a one time baker act unless there was legal follow up. I fail to see how it was a good call if he killed himself anyways. Basically, net effect zero. Sorry if that seems cold but a suicide case isn't deterred by a lack of guns

The mental health bit is baloney imo. People check in to facilities voluntarily all the time. The vast majority of mentally ill people arent a danger to others and we have a system in place for those who are (adjudication). It would work good if applied correctly instead of just harping about new and improved feel good legislation related to mental illness and guns.

 

[lemaymiami]

I won't comment about the current push towards "red flag laws" but here in Florida officers have long had the right (and the encouragement from their departments) to seize any weapons that were on the scene in a disturbance call (particularly domestic related). I'm long out of police work but years ago if we were on the scene (or later as a supervisor when my officers were on the scene...) of a breach of the peace the statute allowed us to seize any and all firearms involved. The owner then had to get a court order to have them released a week or two later. When applied properly it was a good law (but as always that requires proper supervision and, at times, a bit of good judgment on the part of the officers...and the courts...).

Here's how we put it to our officers... if you're on a call involving a breach of the peace (often times with one or more individuals either intoxicated or suspected of using drugs, or simply not stable mentally...) remove the weapons as part of whatever other actions you have to take.... We all strongly support our 2nd amendment rights -but clearly there are persons and situations where removing their firearms is the best temporary solution when emotions are running high and tempers short...

- At least that way when you get called back out there (something very common in domestic problems) you won't be facing any firearms...

That law, still on the books, worked very well when applied properly. Yes, it placed a burden on the owner of whatever weapons were involved but most times they'd be able to get that court order without difficulty afterwards. I'm out of police work now for 24 years -but this did work quite well in my era...

 

[FlSwampRat]

I don't think the wife was forced to sell guns because of him being baker acted. A judge has to rule mental incompetence before you lose gun rights. That's more involved than just going in to eval under a one time baker act unless there was legal follow up. I fail to see how it was a good call if he killed himself anyways. Basically, net effect zero. Sorry if that seems cold but a suicide case isn't deterred by a lack of guns

I wasn't involved in the hearings, didn't attend them. I know he was held longer than 3 days, under what circumstances I cannot say. I do know she sold the guns before he got home and said she had to. I didn't grill her under oath, we simply bought the guns from her. it took 3 years before he punched his own ticket so they're not linked, other than to say he was, indeed, a troubled man.
And it wasn't by firearm, from what I understand he just took all his meds at once.