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Our friends in the Civilian Disarmament Industrial Complex see this as a feature, not a bug.

Eagle County Sheriff James van Beek argues in a Facebook post that the ERPO process makes gun owners “guilty until proven innocent.” He notes that when the subject of an ERPO tries to have it terminated, “the burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong.”

He observes that “proving one’s sanity could be very difficult, as it is highly subjective.” Nor is “proving one’s sanity,” however that’s defined, enough to prevail, since a person may be considered a threat even if he does not qualify for a psychiatric diagnosis. …

The basic problem, as with other “red flag” laws, is that the process is rigged against the respondent from the beginning. Once a temporary, ex parte ERPO is issued (as it probably will be), there is apt to be a bias in favor of extending it and against terminating it early, since the respondent already has been deemed a threat (even if the standard of proof was initially weak), and the possibly deadly consequences of letting him possess guns will loom large.

Given that bias, the indeterminacy of “significant risk,” and the difficulty of predicting a respondent’s behavior, it seems inevitable that the vast majority of people who lose their constitutional rights under this sort of law will pose no real threat to themselves or others.

– Jacob Sullum in Colorado’s New ‘Red Flag’ Law Illustrates the Pitfalls of Disarming People Based on Their Future Behavior

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79 COMMENTS

  1. We need a someone who is willing to be the John Scopes of the gun rights world. A brave soul who will be willing to enter the Court system so he can bring this issue into the federal court system.

    • “Inherit the Wind” is a good movie, I like it to. But just an historical note, Scopes was in on it. The “Monkey Trial” was a put up job start to finish, a PR stunt dreamed up by local businessmen who recruited Scopes.

      The truth of the matter was Scopes did not break the law, he skipped the evolution chapter of the textbook. He lied, and his lawyers coached his students on what to say i court.

      https://en.wikipedia.org/wiki/John_T._Scopes

      The true story would also make a good movie.

      • I am aware of that. That is why I used the analogy. The only difference is that this would not be a publicity stunt. The Second Amendment Foundation would be wise to find someone who would will to take this all the way to SCOTUS. You would want to do it in sympathetic judicial district. The beauty in this approach is that you would never have to mention the Second Amendment which would allow liberal judges to find in the plaintiffs favor.

        • ” The beauty in this approach is that you would never have to mention the Second Amendment which would allow liberal judges to find in the plaintiffs favor.”

          Leftists ain’t stupid. Evil, yes, but not stupid.

          A Leftist judge will find the ‘Order’ constitutional based on “the special danger guns present”, or some such prattle they will spew like putrid vomit.

          And that will be the same ‘logic’ they will use when they control SCOTUS in the future and gut the 2A. The ‘special danger guns present’ and ‘the constitution is not a suicide pact’ is how freedom will die in the future…

        • Wow a serious reply.

          It is not a 2nd Amendment case and upholding it would open the door to things like preventive detention. If a person is a danger to himself or others then what would stop him from illegally acquiring a firearm or using some other method? (This is brought up below). If he is truly an imminent danger to others then he needs to be taken off the street. No liberal is going to hand Donald Trump the authority to arrest and detain people he doesn’t like.

      • You mean Heller volunteered.

        A typical TTAG idiot response. How do you think these laws get overturned. What a moron.

        • Now that I got that off my chest maybe I should explain why you need a volunteer. It’s called standing. You cannot challenge a law when you are not affected by it. If you live in a state without an ERPO you don’t have standing. If nobody has gone to court to have your firearms taken away in an ERPO State, you don’t have standing. You don’t want to go to Federal Court with someone who could meet the criteria of a law that takes into account due process. You want someone who could have a judge reject the ERPO in a fair hearing.

          It is also not a Second Amendment case. It is a 4th, 5th and 6th Amendment case.

        • Ok legal scholar Tdiinva. Go ahead and spend your vast fortune in legal fees and risk your rights. You talk it, but you don’t walk it. By the way, you’re still a dumba$$.

        • In the end we are on the same side. I don’t know any families that don’t fight with each other.

          I come down hard on cops. I think a lot of them are to quick to go to lethal force. You’re one of the older guys. They can’t fight like old school so they shoot. Now they shoot each other. I like what Col (Ret) Kurt Schlichter says. I want a guy who lost a bar fight and won a bar fight.

          The anti gunners are coming for both of our firearms.

  2. Today red flag laws are about guns. Tomorrow it’s your kids. Then your job. You right to live near or across from a school or public building.

    And then you’re merely picked up for our own good and places somewhere.

    This should sound eerily familiar

    • I think they already have ‘red flag’ laws to take your kids. In fact I think the bar is even lower for that than taking your guns. Someone doesn’t even have to know you or even appear in court. Just walk around with a kid in a cast and wait for someone to report you. Bam – kids are gone. If you can prove you’re not a child abuser you’ll get them back in 6-8 months. Maybe.

      • That happened at a McDonald’s in the suburbs. Some mother swatted her unruly kid and another customer wrote down her license plate number, as she left. They called the cops who called Child Protective Services. I didn’t see a follow-up story on this, but I’m sure it wasn’t good for the parents.

        • There was one I heard a few years ago where some busy body spotted a kid with a cast at a grocery store and reported the father. Turned out the kid fell off the jungle gym at school and everything was completely corroborated by the school and the teacher on recess duty who saw the whole thing. It still took him several months to get his kids back.

      • You are being presumptuous. That simply isn’t true. DHS may be quick to call but it requires a metaphorical act of god for them to actually do anything beyond be a nuisance to the accused, atleast in my district/state.

        ERPO are a whole other can of worms as they do not require official investigation.

      • There doesn’t even have to be an allegation of abuse or neglect. This lady was arrested based off of mistaken identity. She lost her job and had to convince the system to let her have her children back.

        “Foster had to meet with child protective services to be interviewed to see if she’s a fit mother after being arrested before she can have her boys back. She lost her high-paying job as well.

        She was able to get her boys back on Friday.”

        http://www.fox19.com/2019/04/19/one-big-mistake-after-week-jail-local-woman-let-go-with-all-charges-dropped/

    • GS650G,

      Today red flag laws are about guns. Tomorrow it’s …

      Exactly. If these Red Flag Protection Orders are allowed to stand, this very same justification will be used for all manner of abuse.

      • The heart of the problem is that there are people who see a problem and by default think government is the solution. Until that is dealt with those people will continue to burden our society.

        • Driving is a privilege so that’s an easy one.

          Look at what China is doing today. The UK and Europe are next and we’ll be right behind.

  3. When elected officials state, “Just take the guns,worry about due process later” it more than appears that they think of the Constitution as a door mat.

  4. You know, these ERPO don’t really go far enough. Just because you take someone’s guns away doesn’t mean they can’t acquire new guns. The NICS system is so porous it’s practically a joke, and even if they can’t buy a weapon at the local gun shop they still can find one on the black market. What really needs to be done is they need to have their bank accounts seized and any cash or liquid assets taken away so they’ll have no money to purchase another weapon. Probably should take their car as well so they won’t be able to drive to the parking lot where the dude said the other dude would be with the weapon. Then if they can prove that they aren’t a threat to themselves or others they may be able to get their property back after a long drawn out and expensive legal process. If it just saves one life…

    • …or, if the person subject to the ERPO is so immediately dangerous to Society then he / she / it should be taken into custody for the sake of the chilluns…unless, of course, the whole fiasco is not about safety but about Da Gunz.

      • Yep, agree, there are already laws and procedures for nabbing dangerous individuals, trying to make a short cut around the built in protections for “safety” destroys freedom and puts people at legal risk. And these accusations are based on pre-crime, so the individual hasn’t actually done anything or they could be arrested for a crime. And with pre-crime, everyone is suspect. I mean, you might rob or kill someone at any moment! Or you might not! We won’t know until you do, so we had better just try to make it harder for you. Just in case.

        As usual it is an incredibly broad attempt to “fix” the system based on a few scenarios that either couldn’t have been prevented, or were failures on a number of fronts for anyone to do something about troubled individuals. So hey, now we can just blanket handle all the troubled people! And then what does troubled even mean anyway?

    • “What really needs to be done is they need to have their bank accounts seized and any cash or liquid assets taken away so they’ll have no money to purchase another weapon.”

      Gov, are you trying to give Sam I Am some competition? 😉

      • They also need to be subjected to a full cavity search to make sure they’re not keister stashing their arsenal. Stick a camera up there and run it all the way up to their duodenum, I say.

  5. Meanwhile the ACLU is too busy fighting for the rights of people who don’t even live here to care one bit about due process being eroded from actual citizens. Maybe the moment an ERPO is used against some guy three or four countries away they’ll remember due process is a thing they once claimed to care about. Provided that guy isn’t white of course.

  6. How many civil rights can we violate in a phone call – The Red Menace Challenge

  7. And to think, in Colorado after they take all your guns under a red flag law, you can soon sit back and LEGALLY pop a few shrooms to let the shock slip away!

    • You can already live in the Matrix if you want. We got VR, internet and drugs. Just take a lot of drugs after you plug yourself in. As long as there is someone there to tie you down, readminister the drugs and update the software you might never know the difference.

    • That proposal is only in Denver.

      And… it’s not like it matters. I just went to an art show today in Denver to support a friend of mine (the lady who helped me out with that ComicCon weaponry story a couple years back).

      Long story short: There were definitely a bunch of people on various fairly powerful hallucinogens there. Some artists some art fans. That’s just kind of the way Denver is. Especially in the art scene. Legal or not, they’re out in public tripping face with their pupils like pennies and it’s just normal for Denver.

      As long as they don’t drive while they’re all fucked up who cares?

  8. I have noticed a trend. It seems that elected sheriffs have First Amendment rights. But appointed City police Chiefs do not have First Amendment rights.

    • That’s one reason why I don’t like police. They must follow orders to get paid. If the “chief” doesn’t do what the politician says…

  9. ERPOs, like the forfeiture laws are blatantly unconstitutional, just like no-knock laws and numerous other repugnant laws which infringe on the rights of the populace, yet no serious challenges are mounted against this growing virus of totalitarian behavior. We’re well down the road to despotism and, sadly, the fear of opposing it is palpable.

    • This is how Progressive politics works. The Progressive movement in the 20’s and 30’s found common cause with Italian Fascism and has never really abandoned Fascism’s core belief that state sponsored authoritarianism./totalitarianism are essential tools for perfecting a complex society.

      • I’ve gone through this with several progs, and they are genuinely confused when you call them authoritarian. So I ask, which side more frequently advocates policies that contain the words “mandate,” “subsidize,” “regulate,” “ban,” and “tax?”

        But of course they are working from a different set of definitions, in classic Orwellian fashion. To them, it is “authoritarian” when a law prevents a leftist from using naked force to impose their will on others.

    • As tdiinva points out above, standing is a thing.

      These kind of cases, asset forfeiture, no-knocks, certain parts of DUI laws etc are all basically the same in that if you want to mount a serious challenge against them you need someone with 1) standing, 2) a lot of money and 2) the intestinal fortitude to see the whole thing through. Those people are very, very rare.

      It’s not helped by the “druggies = bad” attitude that a lot of people have. The reason some states can get away with the way they treat a DUI suspect before conviction and with not making that person whole if the person is acquitted is mostly because no one gives a fuck what happens “some drunk asshole”.

      The immediate assumption in a lot of circles is that if you are charged you did it. DUI, drug dealing, drug using or even just having large amounts of cash is now direct and incontrovertible evidence of crime. Not many people care about your rights at that point because, well, you’re a scumbag. Even supposedly “conservative” people will say “Well, there’s no reason to have $100,000 in your car” as if that’s some iron clad evidence that the person must have committed a crime to have that much cash on them. ‘Cause no one has ever had $100,000 or more without committing crimes to get it, ya know.

      ERPO’s are just the new hotness in this regard. Most people will assume that you “deserved it” and not give a fuck about the actual circumstances because “obviously” there was a valid reason for this to happen to you. Obviously. Even in cases of clear abuse they’ll still defend the practices because the suspect “must have done something”. This is why I have argued on other threads against this idea of a Vengeance System. It leads to this kind of thinking. Thinking that excuses abuse and tramples rights to the soundtrack of thunderous applause because people “feel” that you “deserved it” or you wouldn’t be a suspect.

      Just wait til some asshole decides to shoot the cops over this and you’ll have a whole other level of shitstorm with that person being the poster-child for ERPO’s and ads running with pictures of the cops they killed telling you to vote for Prop XXXXX because these brave officers died in the line of duty and can’t hold their children anymore [insert crying children]. Yeah, now we’re really fucked because that’s marketing capital you cannot buy and we just gave it to these statist assholes.

      Just look at something User1 pointed out about that “ambush” in Houston. There was no ambush, it was all a setup for an as yet unknown reason. Illegal as fuck. But that didn’t stop the Police Union for calling for the death penalty for “cop killers” as a way to try to retroactively justify the killings of some scumbag drug dealers who weren’t really drug dealers.

      If they’re willing to lie and coverup and pull this kind of tomfuckery in that case what else are they doing and doing with the approval of a TON of Americans who supposedly value freedom?

  10. Eagle County Sheriff James van Beek argues in a Facebook post that the ERPO process makes gun owners “guilty until proven innocent.”

    Guilty of what? Evil fantasies? The subject of a Red Flag Protection Order has not actually broken any laws!!!

    … when the subject of an ERPO tries to have it terminated, “the burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong.”

    Accusation of what? Evil fantasies? The subject of a Red Flag Protection Order has not actually broken any laws!!!

    This alone is more than sufficient reason that Red Flag Protection Orders should not exist.

    • Correct – subjects of ERPOs aren’t even accused of crimes, which actually makes it even more egregious than other crimes of state like civil asset forfeiture where you don’t have to be charged but at least there’s an accusation presented to refute.

  11. Where is Eagle county? (journalism 101) We all write and comment about things happening in other states, which is why my “name” is Illinois. I know nothing about New York and California law unless I read it on a 2A site. I found my answer at the END of the article, thank you.

  12. And this is EXACTLY what the left wants/wanted all along, it’s their “loophole”, only problem, when tested, it will eventually be struck down by SCOTUS as being unConstitutional…

      • I heard the super heroes from the Supreme Court swooped in and handed out belt fed .50 cals to every adult Californian and New Yorker.

        Here comes the supreme court to save the day… from all the congressmen, senators, governors and presidents that stand in the way…

  13. Red Flag Protection Orders hinge on a family member, teacher, coworker, or police officer’s OPINION that someone is unstable and will commit a crime in the future — a criteria that is totally vague, arbitrary, and capricious for infringing on a fundamental, unalienable right.

    This is why Red Flag Protection Orders should not exist in the first place — and why the courts should IMMEDIATELY nullify Red Flag Protection Orders.

  14. Not only this, the Judges can consider “Any Past Accusations.” As you all know, sometimes the way things get hashed out during “Conflict Resolution,” are not the way things really went down.

    We have way too many “Socially Arrested” individuals running around these days. The ones that come to mind are the folk that, start a problem, then run to the recess lady for help just before a little playground justice ensues. Metaphorically of course. Think about all those times you just let crap go for the greater good, rather than prove your innocence. It all got documented, and could come back to haunt you…you get the jist.

  15. A lot of us men have a crazy ex. I know I do. Even though it’s been 35 years(!)I’m fairly certain she still hates me for no good reason. It’s fairly bizarre seeing it play out on Facebook. Everyone should have a hidden stash😏

    • I have one of those too. People tell me that she’s still spewing that I’m Satan himself even though I haven’t spoken to her in forever. I tell them spare me from hearing about it; don’t tell me, I don’t even care to know.

  16. All ex parte orders are inherently unconstitutional. Full stop. It’s about damn time the SCotUS got off their asses and slapped down these violations of people’s due process rights.

    • It’s difficult for me to see SCOTUS doing anything outright other than punting it back to the States.

      Possibly with another Justice pick when RBG goes away….dunno how it will play out.

      That being said, Red Flag laws for weapon confiscation is about as UnAmerican as it gets, truly some BS this is.

    • The supreme court does not like to hear cases regarding the 2nd Amendment. It’s been that way since the begging. They are not happy to settle the 2nd Amendment in the court of law. If the supreme court actually wanted to do that they would say all infringement is technically illegal regardless of how small.

      • It’s not a 2nd amendment issue. It’s a 5th, 6th, and 14th amendment issue.

        No court should have the authority to order punitive measures without you first being found guilty of a crime by a jury of your peers with an opportunity to confront your accuser and offer a defense in open court.

        • California has had this type of powers for awhile and served enough orders, yet no supreme court case. It is a major constitutional problem that goes after a lot of amendments to attack the 2nd. It even attacks the 1st Amendment. However, the court is not happy to give any ground on the 2nd Amendment.

          You keep operating your logic as if the supreme court is actually good and has good people on it. That they aren’t corrupt like all the others. It’s naiveté…

        • The more Demokkkommie justices we replace, the better the SCotUS gets. I’m offended not by the gun confiscation of ERPOs but by the fact that they violate 3 OTHER amendments of the constitution to get at the 2nd. How many people here had problems with ex parte restraining orders used to punish men who did nothing wrong before they started taking guns?

        • Oh I totally agree and I think this is the hill all gun owners need to stand on enmasse.

          However, as the video that ‘user1’ posted, there a host of FUDDS that just ain’t getting it or maybe they don’t want to..I dunno. FUDDS Not seeing how the other Amendments are being whittled down is a big problem we’re going to have to face sooner or later.

    • To be fair, the issue here is the 5th, 6th, and 14th amendment issues. Not the 2nd. We have always accepted that courts can take away rights with due process. The issue is the burden of proof and the ex parte hearings. If the burden of proof is “beyond a reasonable doubt” and an accused has the right to demand a jury hear the case before any removal of firearms, it should be ok.

      • Guess what ?

        For a citizen to assert his rights as plaintiff or defendant in an Amerikan court he has to be made of money. The financial cost for the common man to seek “justice” in an Amerikan court is prohibitive. There are abuses of the citizens by the scum one calls government, every day in this former USA. The problem being the inability of the injured person to afford the horrendous price extracted from the common citizen when seeking court-ordered justice. Then, regardless of the money one can beg, borrow or conjure up to get his “day in court” he still has to count on the judge to adhere to the rule of law. Good luck with THAT !

        The justus system is weighed AGAINST the citizen. The time to clean the Amerikan house of rotten politicians and corrupt judiciary is more near today than ever before.

  19. ERPOs are quick to issue and slow to remove. They do not require an immediate or even prompt hearing. No criminal charges have been issued, and yet the accused has no right to a speedy adjudication.

    Rights can be restricted without prior court process — an arrest is one example. Due process does not mean a fair trial before arrest, but it does mean that the accused is entitled to an opportunity to be heard, and quickly. While this is more often honored in the breach than in the observance, it’s still a legal requirement.

    The so-called “Red Flag” laws — allowing confiscation without a prompt hearing — are largely nothing more than a pretext to enable gun grabbers to gun grab. While it’s understood that due process can occur after an event, in the case of ERPOs there’s no process at all.

    • Ralph,

      Rights can be restricted without prior court process — an arrest is one example.

      There is a ginormous difference: that arrest is based on evidence/probable cause that the suspect actually committed a crime.

      The problem with Red Flag Protection Orders is that there is no evidence and there is no probable cause because the “suspect” has not committed any crimes.

      • A better comparison would be involuntary commitment. In such cases, the “disabled”
        person has not committed a crime but is still confined — a loss of liberty — because he might be a threat.

        In such cases, the commitment begins in most states with a filing by anyone claiming that someone has psychiatric disabilities and is dangerous to himself or herself or others. Does this sound familiar?

        In involuntary commitment cases, there must be a hearing within ten days or less.

        In this comparison, there is also a ginormous difference. With a Red Flag order, the person loses his guns. With a commitment order, the person loses his freedom, but a prompt hearing is guaranteed.

    • The same way any law can be considered constitutional, or anything at all… Sad, but true. Still feel free, or just free-er than some parts of the world?

    • The CON-stitution is a joke. It has been usurped time and time again. Some black-robed low-life issues a diktat that he/she declares something CON-stitutional/Not CON-stitutional and poof….there goes the Citizen’s legitimate, intelligent understanding of the CON-stitution. The courts are tyranny in action !

  23. Everybody agrees crazy people should not have guns.

    Only a crazy person would _______________ (fill in blank.)

    Gee that was easy! Thanks Freud!

    • Exactly. Who is to be the one in control of the definition of such a word in accordance with their laws? It will be whatever they want it to be.

      Pieces of paper with words get cast aside all the time. Until there is one that defies the laws of humankind and ceases all greed to control the actual definition of freedom, I’ll stick to the parts that make sense. It can pretty much be summed up in one sentence for each limited freedom we are fortunate to have. When it comes to this one, it’s simply “Shall not be infringed”.

  24. Think Minority Report… let’s stop crime by arresting someone for thinking (maybe) about it! Not sci-fi anymore, anyone can invoke an ERPO without evidence. “I think (s)he’s a danger to self/others…” is enough.

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