Problems With Red Flag Laws

The latest rage in gun control circles is so-called “Red Flag” laws. The idea is supposed to be that guns can be taken away from people who pose some kind of threat to the public.

There are multiple problems with these laws. The biggest concerns relate to vagueness, due process, and misleading language. President Trump’s suggestion that CNN anchor Chris Cuomo could be subject to a red flag law demonstrates these flaws.

See our new article: Red Flag Laws Are Racist

What are red flag laws? As Wikipedia puts it:

In the United States, a red flag law is a gun violence prevention law that permits police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves.

One of the most common practical terms used to describe these laws is that they authorize courts to issue “extreme risk protection orders.” That’s how gun control group Giffords describes them. It’s the word “extreme” that’s misleading.

Florida has adopted such a law. The statute avoids use of the word extreme, but it was used in the bill analysis the legislature relied upon. Other gun control groups continue to use the “extreme risk” language in describing Florida’s statute.

This is the biggest problem with the Florida law, and many other such laws. They are not about “extreme risk” at all. The Florida statute, titled Risk Protection Orders, doesn’t require that any such risk be extreme. Washington State’s law (RCW 7.94.030) does use the word extreme, but similar to Florida uses the actual standard “significant danger.”

Florida statute, 790.401, uses somewhat inconsistent language, but the general idea is that the supposedly dangerous person will have their guns taken away if they pose a “significant danger of causing personal injury to himself or herself or others by having a firearm.”

The statute authorizes a temporary order where the accused’s rights are taken away without any notice. The standard for a judge when faced with this is:

If a court finds there is reasonable cause to believe that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition, the court must issue a temporary ex parte risk protection order.

Reasonable cause is a very low standard, and significant danger is vague. The statute provides a list of factors for the judge to consider and this contributes to the vagueness and lack of standards.

Some of the factors are particularly dubious:

The first two factors:

  1. A recent act or threat of violence by the respondent against himself or herself or others, whether or not such violence or threat of violence involves a firearm.
  2. An act or threat of violence by the respondent within the past 12 months, including, but not limited to, acts or threats of violence by the respondent against himself or herself or others.

We’re already in vague territory here. What counts as violence? What counts as a threat? And why have one factor for recent and another that goes back 12 months?

If you think this is a trivial issue, consider the recent incident with Chris Cuomo. He threatened to throw a man down the stairs. That is a clear threat of violence.

Factor 3 in the Florida statute addresses mental health:

3. Evidence of the respondent being seriously mentally ill or having recurring mental health issues.

Chris Cuomo has admitted to having mental health issues and that it was a recurring problem – start around 2:09 in this CNN video – “many layers of my life for many years.”

So we already have two factors in the statute suggesting that Chris Cuomo could be subject to a red flag order.

Let’s turn to Factor 9: “The unlawful or reckless use, display, or brandishing of a firearm by the respondent.”

It’s hard to argue with the term “unlawful”, but reckless is open to interpretation. There have been at least two incidents where schools suspended students for posting gun range photos on social media, one involving high school students and another involving a college student. If they’re enough to get you suspended from school, that seems enough to count as reckless.

Then there’s Factor 12: “Corroborated evidence of the abuse of controlled substances or alcohol by the respondent.”

Why is this in the statute? I follow news of mass shootings and I don’t remember one where the shooter was noted for having an alcohol or substance abuse problem that was thought to have contributed to the shooting.

And what counts as abuse? I have a friend who drinks more than I do, and sometimes I think he drinks too much. Does that count? Marijuana is another problem. Many of us think that there’s nothing wrong with marijuana use, but others feel that any use of marijuana is abuse. Many years ago I handled a child custody case where the judge held the father’s use of marijuana against him.

Even proper prescription drug use could be considered abuse by a judge in one of these proceedings, especially in the early stage where the accused has not received any notice.

Next we have Factor 13: “Evidence of recent acquisition of firearms or ammunition by the respondent.”

This is disturbing. Maybe it makes sense for a person who doesn’t already own firearms. But what about someone who already has 5 guns and a thousand rounds of ammunition. Why would buying one more gun, or some ammo, indicate a risk?

Some readers at this point may be concerned about someone having a thousand rounds of ammunition. Gun owners buy ammunition in larger quantities for the same reason people shop at BJ’s and Costco. If you go to the range once a week and shoot 100 rounds, you’ll go through 1000 rounds in 2 1/2 months. I did an all-day training session at Florida Firearms Traning and went through close to a thousand rounds.

If that’s not bad enough, we then get to the most vague catch-all factors:

14. Any relevant information from family and household members concerning the respondent.
15. Witness testimony, taken while the witness is under oath, relating to the matter before the court.

Those are so wide open that anything can be said and could qualify to get such an order.

This brings us back to the standard for a judge to consider: “reasonable cause to believe that the respondent poses a significant danger.”

This makes it far too easy for a judge to take away a person’s rights, with no meaningful standards.

To be fair, we can be hopeful that most police agencies will not abuse this power and will apply it to the right circumstances. This is an example from Boca Raton PD that makes sense:

Of course with this one it’s not clear how sending police to the door of someone who is planning to shoot cops through the door is a wise plan. But it appears this was handled well.

In other good news we see a case from Jupiter PD in June where Judge Dina Keever-Agrama denied a temporary order. We’ve liked her for a long time.

Related due process concerns remain troubling. The accused can have his rights and guns taken away with no notice or opportunity to be heard. Then the accused can request a hearing, but “no sooner than 14 days and no later than 30 days.” You can’t get a hearing for at least two weeks and maybe as long as a month later.

At that hearing the accused has to prove he’s not a significant danger, and “by clear and convincing evidence.” That’s a much higher standard than the “reasonable cause” standard used to take rights away.

Another related due process concern is the law has regular orders where the accused gets notice in advance, along with temporary ex parte orders with no notice. Are the regular orders used at all? Has anyone kept statistics on how many of these orders were done with notice as opposed to without?

In a brief review of some cases in Palm Beach County and Broward County, every case is filed seeking the emergency temporary order. In one Broward case the “emergency” petition wasn’t filed until two weeks after the incident that prompted it, and that petition was granted even though it obviously was no longer an emergency. That seems to be a pattern in the few cases we have reviewed. If it’s an emergency, the petition should be filed right away. If it’s not filed right away, it’s not an emergency.

This might seem a minor detail, but police in one county can pursue an order against an accused in a different county. So the accused has to defend himself in a distant court. Why would this be part of the law? Why not insist that the petition come from the accused’s home county law enforcement and in his home county courts?

If al that isn’t enough, consider the use of the term “red flag”, a prominent communist symbol. President Trump’s suggestion that red flag laws could be used to disarm a political/media opponent like Chris Cuomo shows the danger.

See our new article: Red Flag Laws Are Racist

Sonic Judgment, Posse Comitatus and Public Notice

F-15; U.S. Air Force photo/Staff Sgt. Samuel Rogers

Shortly before 7 pm Friday night many thousands of South Florida residents were startled by a loud noise that shook homes from Weston to Wellington.
West Boca News received dozens of messages, calls, text messages along with hundreds of comments from readers. We were unable to find solid answers for hours.
Some local officials put out short, vague notices. The Broward Sheriff was particularly confusing:

A military event could mean a lot of things – an attack on our country, a coup, a training exercise, etc.
This morning we did find a release from NORAD that seems credible.

A pair of Air Force F-15s … intercepted an unresponsive general aviation aircraft near the Palm Beach, Fla., area at approximately 7 p.m. EST.
The intercept required the Air Force F-15s from Homestead Air National Guard Base to travel at supersonic speeds, a sound noticed by area residents, to get to the general aviation aircraft where they were able to establish communications.

This leaves us with two concerns about the judgment of whoever made the decision to go supersonic.
First, was it necessary and appropriate?

Air Force procedures require that, whenever possible, flights be over open water, above 10,000 feet and no closer than 15 miles from shore. Supersonic operations over land must be conducted above 30,000 feet or, when below 30,000 feet, in specially designated areas approved by Headquarters United States Air Force, Washington, D.C., and the Federal Aviation Administration.

Going supersonic is not something the Air Force is supposed to take lightly. Moreover, military operations within the borders of the United States are supposed to be limited by the Posse Comitatus Act of 1878.
The reports are that the sonic booms started in Weston and continued to somewhere near Boynton Beach or Wellington. That’s in the ballpark of 40 miles. At 750 mph (just below the speed of sound) a plane would travel that distance in just over 3 minutes. At 1500 mph an F15 would get there in half the time. Going supersonic got them there perhaps 90 seconds quicker.
We would like to give the Air Force the benefit of the doubt and hope that yesterday’s decision was correct under the circumstances. But that leads to our second concern.
If they’re going to rattle homes over a 40 mile densely populated stretch, alarming over 100,000 people, they should let us know what happened immediately. We heard numerous reports of distress, including police coming out of their stations with guns drawn, children crying, 911 calls overwhelming the operators, and neighbors rushing outside their homes and getting to know each other.
NORAD should have plans in place to notify local law enforcement and media when this happens. We don’t expect West Boca News to make the list but the local TV stations and major regional newspapers certainly should.

Text of Judge Donnelly Order Staying Trump's "Muslim Ban"

A federal judge in Brooklyn issued an “emergency order” (similar to a TRO or temporary restraining order) staying President Trump’s recent executive order putting a hold on immigration from certain countries. The media has been inaccurately referring to it as a “Muslim ban”. The order applies to people from countries on a list of “countries of concern” that was maintained by the Obama administration.
We were unable to find the text of the order in a regular internet search so we went and got it. Unfortunately, and somewhat mysteriously, the motion papers seeking this emergency order were protected so that we were unable to see them – even the memorandum of law. The pdf of the order is at bottom, followed by the Petition and Complaint.
ALSHAWI, on behalf of themselves and others
similarly situated,
– against – 17 Civ. 480 (AMD)
DONALD TRUMP, President of the United
(“CBP”); JOHN KELLY, Secretary of DHS;
Cotnmissioner of CBP; JAMES T.
MADDEN, New York Field Director, CBP„
ANN DONNELLY, District Judge.
On January 28, 2017, the petitioners filed an Emergency Motion for Stay of Removal on behalf of themselves and others similarly situated.
IT APPEARING to the Court from the Emergency Motion for Stay of Removal, the other submissions, the arguments of counsel, and the hearing held on the 28th of January, 2017,
1. The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution;
2. There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order;
3. The issuance of the stay of removal will not injure the other parties interested in the proceeding;
4. It is appropriate and just that, pending completion of a hearing before the Court on the merits of the Petition, that the Respondents be enjoined and restrained from the commission of further acts and misconduct in violation of the Constitution as described in the Emergency Motion for Stay of Removal.
WHEREFORE, IT IS HEREBY ORDERED that the respondents, their officers, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them, from the date of this Order, are
ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.
IT IS FURTHER ORDERED that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshals Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.
Dated: Brooklyn, New York January 28, 2017
Ann M. Donnelly
United States District Judge
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West Boca's Newest Superpuppy: Chloe the Powerfluff

AKid is an undercover student and superhero in a West Boca school. No, it’s not Ben.
Currently in West Boca, danger has been raining down hard, and this tiny puppy has been saving the day without anyone noticing. In fact, Michael Rance’s sunset was not even ruined during the Trump campaign event, thanks to … of course, Chloe the Powerfluff! She’s only ten weeks old, and seems unstoppable.
What does Charlotte the Wonder Puppy have to say about this? “RrrrUFF ruff!” When translated to English this means, “Great to have a helping hand!” According to one reader, Charlotte was seen working with Chloe when they brought a runaway dog back to its home. This happened just yesterday behind Wendy’s in Loggers’ Run! Sadly, the duo worked together so quickly, no high quality pictures were able to be taken. We could not confirm whether a few discarded burgers were also rescued.

Charlotte the Wonder Puppy in her younger days.
Charlotte the Wonder Puppy in her younger days.

Charlotte and Chloe are sure to be saving the day together more often, since their teamwork is stunning. Their owners are grateful to have such heroic puppies. More West Barking News coming soon!
Mature puppy Charlotte resting after a long hard day.
Mature puppy Charlotte resting after a long hard day.

Trump Ruins Black Man's Sunset in West Boca

Michael Rance loves living in West Boca and is an avid reader of West Boca News – and commenter. We learned from Mr. Rance that the upcoming Donald Trump event in South County Regional Park has a darker side. It’s ruining the sunset.
Rance takes photographs of the gorgeous sunsets in the park as part of his regular routine.
And now his daily sunset ritual is being disrupted by thousands of Trump supporters filling the park in and around Sunset Cove Amphitheater, obviously named for its great views. Rance is concerned not only with the supporters, but with Trump’s “hate and bigotry.”

I watch sunset at sunset cove almost every day now my Sunday is f##### up because of this piece of trash

Rance really does take a lot of photos and he shares them on his BlackXeres Instagram account. He has over 1000 followers and a typical sunset photo will get dozens of likes from them, often over 100. Here’s an example:
And this is what Rance’s sunset will look like this evening:
On the bright side, Mr. Rance’s routine should return to normal on Monday.
This message was not paid for by Marco Rubio nor any PACs affiliated with any candidates or party officials. If you’re angry at this article you are in serious need of a sense of humor. Thanks to Mr. Rance for playing along.