By Stefani Lord
Pro-Gun Women attempts to break down this new Red Flag Bill and hopefully make it understandable.
(List of Senators to contact about this bill is at the end of this write up.)
Section 2. Definitions of who can file a Red Flag
D. Law enforcement (“Petitioners” that can file for a Red Flag Order) now means police, Sheriff, New Mexico state police, a district attorney, the attorney general.
H. Reporting Party (formerly “Petitioner”) is spouse, ex-spouse, parent, current and former step-parent, present or former inlaws, grandparents including inlaws, baby momma or daddy, child, a person you had a “relationship with” (whatever that means), and they ADDED your employer AND a school principle.
So don’t make your boss mad! And you better FEAR your crazy ex now! However, we can Red Flag EVERY POLITICIAN since we are their boss.
Section 4. Red Flag Orders
The Red Flag is filed in the county the Reporting Party lives in. So, if you live in Gallup and the accuser lives in Tucumcari, too bad. You still have to drive yourself out there in 10 days to defend your rights.
Section 5. Petition for Red Flag
D. Law Enforcement shall file a petition for a Red Flag Order upon receipt of “credible” information that gives the officer probable cause.
Let’s stop here.
“Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue a person in civil court or to arrest and prosecute a person in criminal court. Before a person can be sued or arrested and prosecuted, the civil plaintiff or police and prosecutor must possess enough facts that would lead a reasonable person to believe that the claim or charge is true. The probable cause standard is more important in Criminal Law than it is in Civil Law because it is used in criminal law as a basis for searching and arresting persons and depriving them of their liberty.” (1)
In the original ex-parte Temporary Order Proceeding, the judge does not necessarily get to hear facts – it is literally one person’s side of the story without hard evidence. There is no certainty that facts are indeed facts before the guns are taken. Unlike a criminal case – hard evidence and an investigation are not needed for a Red Flag Temporary Order or in the hearing. The Petitioner makes up his or her mind and decides (like judge and jury) if they think the Reporting Party is honest or not and that a crime (or harm to self) may be committed in the future. The Petitioner then sends his or her “opinion” to the judge who makes an ex-parte decision without EVER hearing from the accused. They only hear the side of the accusers before the guns are taken, which violates due process.
The problem with this Red Flag Bill is it is not civil; it is not criminal; it is tyranny.
Criminal “[p]robable cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.” (2) There is no probable cause of a crime committed with the Red Flag Order; instead, the Petitioner has to assume that the Respondent “might” commit a crime in the future, just like the thought police in Minority Report.
D. Continued – probable cause to believe that a person is a significant danger of causing imminent personal injury of self or others. (This is very important as you will see later.)
F. A petition for a Red Flag must be signed under oath. Have you ever known someone to lie under oath? Ya, me too.
Section 6. Red Flag Proceedings – EXPARTE
A. So, now that a Reporting Party or a Partitioner has filed the report, that report goes to a judge. Guess who is NOT there to defend themselves? The accused. The accused has no idea this is even happening at this point. The judge looks at “probable cause” and then decides to issue the order.
Now, let’s be real here. What judge in the WORLD is NOT going to push this forward? You want to be the judge that denied an order, and someone actually did do something? No. You will be like the judges in Florida that 90% of the time rubber stamp these Red Flags.
C. Guess when you do get to go to trial? Ten days after your guns are taken.
Now, this is SUPER important. This is civil; you do NOT NOT NOT get a public defender. NO attorney is appointed to you if you can’t afford one. And how much will an attorney cost you? Remember, this is NOT to get your guns back. This hearing is to RESTORE YOUR SECOND AMENDMENT RIGHTS! You can NEVER own a firearm again until you defend yourself in court. You MUST have an attorney to protect yourself. And how much will that cost you?
Initial Hearing: $15,000
Hearing in One Year to Restore Rights: $25,000
Trail costs where give over the phone by Donald Kilmer. Mr. Kilmer is a lawyer and an Adjunct Professor at Lincoln University Law School since 2001. He Teaches:
• Constitutional Law I & II
- Constitutional Adjudication
- Firearms Law – Constitution, Statutes, Regulations
- Attorney Kilmer also testified as a witness and was a contributor to the Judicial Council’s Domestic Violence Practice and Procedure Task Force
- He has won numerous cases in the Ninth Circuit Court
Here is the break down of the cost to restore your Second Amendment Rights:
- Continuance – since no one is ready for a trail in 14 days
- Subpoena of Witnesses
- Depositions of those that know the accused and the accuser
- Hiring a Private Investigator
- Medical Expert is $5,000 and up
Section 7. Hearing on the Petition (this is the actual hearing 10 days later)
These are the things the court might look at during the hearing:
C. The Respondent’s mental health history.
How are they getting your mental health history? Will the LEO violate HIPPA and have access to it? And what if you are a VET with PTSD? Does this make you automatically guilty?
D. The respondent’s abuse of controlled substances.
Does this include medical marijuana since its still a controlled substance on a federal level?
G. The respondent’s criminal history like….do they have a Felony? Uh, hello, felons CANT have guns already. Just wow.
Section 8. Hearing for a One-Year Continuance
Remember, this hearing is not only to get your rights back, but if you don’t fight? They will issue this order for one full year.
A. The hearing is again based on probable cause, not hard evidence or investigations. You have no attorney, and you WILL need one, and you WILL have to pay for it yourself.
D. You have the right to appeal. Guess how much that will cost you in legal fees? $100,000 in the court of appeals.
E. One month before the year being up, the Petitioner or Reporting Party can file ANOTHER petition, and guess what? You get to go to trial again. And how much that will cost you in attorney fees?? $25,000.
Section 10. Relinquishment of Firearms
A. Are you ready for this new amendment? Remember, I said that there is supposed to be “probable cause to believe that a person is a significant danger of causing imminent personal injury of self or others” to issue the Red Flag? Well, guess what? (And on a personal level, I do NOT want the democrats to amend this portion at all. It shows the bill for what it is – a gun grab.)
Instead of the Sheriff serving the order and taking the guns like in all previous RF bills, the Respondent now has TWO DAYS to surrender the guns!
But wait, I thought the entire purpose of the EMERGENCY RED FLAG PROTECTION ORDER was to do something NOW and to save lives by taking the guns away? That’s what the anti-gunners have been PUSHING for the past year – to “save just one life.” Now it’s not important? Am I taking crazy pills because this was the point of this entire unconstitutional bill from the start; assume you are guilty, take your stuff NOW, and then later you can have a quasi trail.
** The anti-gunners showed themselves to LIARS about this bill. Its been a SHAM the entire time! They don’t want to “save one life” they just want to take “one gun at a time” from the American People. **
Section 11. Penalties
Btw, if you get busted with a gun while the order is in effect, its a misdemeanor.
Section 12. Reporting to NIC system
A. Guess what happens if you are falsely accused, or you get your rights restored? You get to hire ANOTHER attorney in a federal case to get your name cleared in the NIC system. And then guess what? Read on….
Section 13. Firearms Returned
C. BEFORE you get your firearms back, you MUST pass a background check. Guess what? If you didn’t get your name cleared in the system? You DONT get your guns back. Back to paying for an attorney.
Section 14 – They ADDED a Liability Section
This basically says LEO’s are now LIABLE and subject to lawsuites over this Red Flag Bill. Not the accuser, but the Sherriffs.
The logic of this secion is if a speeding person was injured by someone, the injured person can sue Law Enforcment for not enforcing the law.
41-4-12 Liability LEOS
The immunity granted in subsection A of section 41-4-4 of NMSA 1978 does not apply to liability for personal injury, etc.. and underlined is “failure to comply with duties established pursuant to statue or law” to deprive a person of rights, etc.
Section 15. Maximum Liability
Liability shall not exceed:
- 200,000 for damage to property
- 1,000.000 for medical bills
- 1,000,000 other things
- 2,000,000 max total liability per claim
I would RATHER see is $2,000,000 awarded for FALSE accusations by Petitioners and/or Reporting Party.
The new SB5 Red Flag, which is worse than the last (go and read my analysis on this bill) is going to the senate floor TOMORROW!!
Time to start calling and emailing all the Democrat Senators and telling them to vote NO on the latest SB 5 Bill.
In the email subject line, write VOTE NO ON NEW SB5 because sometimes that is all the assistant will see.
The phone call and email script sample:
My name is ____, I live in New Mexico, my zip code is ____ and I want ___ to vote no on the new SB5 Bill.
Senator Pete Campos – (D)
Capitol Room: 302B
Senator Jacob R. Candelaria – (D)
Capitol Phone: (505) 986-4380
Capitol Room: 218B
Senator Richard C. Martinez – (D)
Capitol Phone: (505) 986-4487
Capitol Room: 319
Senator George K. Munoz – (D)
Capitol Phone: (505) 986-4371
Capitol Room: 218A
Senator Mary Kay Papen – (D)
Capitol Phone: (505) 986-4733
Capitol Room: 105
Senator Clemente “Memé” Sanchez – (D)
Capitol Phone: (505) 986-4513
Capitol Room: 323
Senator John M. Sapien – (D)
Capitol Phone: (505) 986-4301
Capitol Room: 416G
Senator Shannon D. Pinto – (D)
Capitol Phone: (505) 986-4835
Capitol Room: 416E
Senator John Arthur Smith – (D)
Capitol Phone: (505) 986-4365
Capitol Room: 325B
For a list of ALL the Senators: https://www.nmlegis.gov/Members/Legislator_List?T=S