Attorney Cody Wisniewski has NOT reviewed my summary of the talk from last night. I am not a lawyer and may have not fully understood the concepts, and these are NOT direct quotes. If anyone was there from last night and understood differently, please let me know.
The anti-gun Everytown and Gifford groups, when writing up Red Flag Laws, figured out ways to write a bill that would be nearly impossible to challenge in the courts.
“The United States Constitution’s fifth amendment requires ‘due process of law’ in judicial proceedings, which requires both parties being present or at least having fair notice. An ex parte order violates that general concept, HOWEVER ex parte orders are done in cases of domestic violence or child abuse and generally in an emergency situation.” (1) Because laws exist in every state to allow ex parte orders, the anti-gun lawyers used that law to confiscate people’s property without due process on the bases that this is an “emergency.”
Ex-parte means you are now there when the judge hears the accusers’ side of the story. You do not get the chance to defend yourself.
An essential part of lawsuits is standing.
Standing, or locus standi, is capacity of a party to bring suit in court.
Standing in State Court
A state’s statutes will determine what constitutes standing in that particular state’s courts. These typically revolve around the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable. (2)
What this means is, to have a case, for the most part, you need an injury or harm.
To bring a red flag case to the courts, you would need to be injured (not necessarily physically) in some way by being red-flagged.
Unfortunately, as much as we know that the Red Flag Bill is unconstitutional, this is not necessarily grounds for a lawsuit. I know that this is very frustrating, but this is how the system is set up. Over this past year, I have talked to many attorneys all over the United States, and they have basically told me the same thing.
We also can’t sue for due process alone because we have allowed the system to use ex-parte with domestic violence and child abuse cases for years. Its hard to argue that the gun confiscation is unconstitutional, but allowing children to be removed is constitutional.
Who can request a Red Flag?
A Law Enforcement Officer must be the requesting officer and file the petition. An individual citizen can’t do it alone.
Some specific people can report to a LEO that makes Red Flag problematic:
- Respondent has or had a continuing personal relationship. What does this mean, and how does a LEO determine what this is?
- Employer or school administrator.
Is this a past employer? How far back? Is this your school admin? Your children? Your grandchild?
Other problems with the Red Flag Bill:
A LEO SHALL (must – with no discretion) submit a Red Flag Order if:
- If there is credible information (What if it is a narcissistic ex that is a good liar? Are they credible? How will the LEO know?)
- There is probable cause (Lowest standard of evidence – 51%)
- There is harm to self or others (How would the LEO determine this?)
Different types of evidence requirements:
- A preponderance of the evidence. Clear and convincing evidence. Beyond a reasonable doubt used in criminal cases.
- Clear and convincing – halfway between preponderance of evidence and reasonable doubt. Used in civil cases and mental health issuance. This is what most red flags use.
- A preponderance of evidence – 51% used in civil, hit and run, property damage cases. This is what New Mexico uses, and this should NOT be for the second amendment and fundamental rights.
Even though it says the reporting person is not liable for a false claim, the petition is made under oath and it’s supposed to mean the reporting person isn’t lying. If they lie, they can be charged with perjury.
If the LEO refuses to file a report, they MUST tell the county sheriff.
After the Red Flag Order is issued, you must surrender your guns in 48 hours. You SHALL relinquish your firearms. If you don’t own any guns, you are now in violation of the courts. A civil search warrant is not really a thing. So there is no way of knowing what will happen here until it happens.
Hearing with you present is 10 days later. The respondent can delay that trial. You have the right to defend yourself at the 10-day trial.
Question – can you put the guns into a gun trust?
- No. Not if they have access to the guns, and how would prove they don’t?
- What does the ability to possess a gun in the red flag bill actually mean?
- If the guns are in a separate safe, is that denying possession? How do you prove to the judge that you don’t have access to guns in a safe?
- What if the guns belong to the spouse? Do they remove those too? How do you get them back? Background check required at this point?
- LEOS can us a Community Caretaking exception – meaning it’s so important we did not have time to seek a warrant, we had to take the guns right away under a mental health hold. This can be used to take a spouse’s guns under Red Flag Order.
Important Red Flag Facts: How do you get your guns back ones the order expires?
- Red Flag MUST be reported to The National Instant Criminal Background Check System (NICS) (This is done before a gun purchase to checks for prohibited people)
- Red Flag also reported to all other federal and state systems and all computer-based databases used by law enforcement agencies
- Yet, this is still a civil case not criminal
- There is an Automatic Dissolution of the order in 1 year unless someone protests
- Guns must be returned to the owner in 10 days. How will sheriffs know?
- A NICS check is required to return your guns. How? This is NOT a sale, its a transfer. It’s a federal crime to run a NICS without a sale. So how will Sheriff get guns back if they cant do a NIC check yet the NM Red Flag Bill requires it?
- You are in the NICS system with a Red Flag Order and probably won’t be out of it in 10 days. Now what? A sheriff does not influence the NICS system. A federal attorney can clear your name in NICS but is VERY expensive.
- When Red Flag Order dissolves, you must be removed from the systems, but who is doing that? Will it get done? What if it doesn’t get done?
- If you cant, get your guns back, no what?
- What if you have 30 guns and you don’t turn them in? Is it 30 misdemeanors? We Don’t know.
- What if you have an 80% lower? Is that a firearm? Do you have to turn that in?
- What if you have one lower and 15 uppers, is that 16 misdemeanors if you don’t turn them in?
Why is there no law suite about due process?
Courts cannot just make a decision based on due process alone. It has to deal with a party before the court.
There is no standing with “this is just unconsitutional” unless you have a concrete injury.
The concept of due process alone is not concrete.
If you want a ruling, you HAVE to get the judge to listen.
Infringement rights get thrown out of courts
These red flags were designed to use the loopholes of the system.
The 9th circuit court oversees 7 states and they actively avoid all second amendment issues.
Thats why we keep getting these series of crazy gun laws.
- How long after you break up can an ex go after you?
There is no clear answer.
- What if someone makes a false statement to a LEO?
It would be up to LEO to go after them, not you.
- Can new legislators repeal the Red Flag Bill of New Mexico?
Can we take Red Flag to the supreme court?
Supreme Court is the only court that can refuse cases. They grant about 1% of all petitions. A review is VERY low. They have yet to see a Red Flag Bill.
Is there any good news?
Many competent attorneys are looking at the red flag bills in various states. Hopefully, with time, a good case will get to the supreme court, and they will decide to hear it. In the meantime, we have attorneys making cases now, and I anticipate more the immediate future in New Mexico. Pro-Gun Women will keep you informed of the decisions on these cases.
One of the MOST important things I got out of this discussion is…
VOTING HAS CONSEQUENCES!
We have 101 candidates running this year, and many of them are hardcore Second Amendment advocates. If they get elected over the anti-gun incumbents this November, and we win the senate or house, then every gun bill being pushed will be dead in the water for the next couple of years. The best way to protect our Second Amendment rights is to vote for Second Amendment Candidates!
Once Red Flag Bill passes in March, PLEASE contact Pro-Gun Women at email@example.com, and we will refer you to people that may be able to advise and/or help you in your case.
I also know people that are actively working on a system to contact others when they get a Red Flag Order.