HB1302-"The Neighborhood Bag Lady Can Take Your Guns" bill

[rockstarr]

any details on when Hogan will sign or veto?

 

[daNattyFatty]

As I read it (and this is NOT legal advice), you have to look carefully at where you in the various stages, viz., interim, temporary and final. The interim is entirely ex parte and the temporary may be ex parte. Let's just start with interim. The bill authorizes services of the interim order and the order will require the immediate surrender of firearms. (3) THE INTERIM EXTREME RISK PROTECTIVE ORDER SHALL:

(I) ORDER THE RESPONDENT TO SURRENDER TO LAW ENFORCEMENT AUTHORITIES ANY FIREARM AND AMMUNITION IN THE RESPONDENT’S POSSESSION; AND

(II) PROHIBIT THE RESPONDENT FROM PURCHASING OR POSSESSING ANY FIREARM OR AMMUNITION FOR THE DURATION OF THE INTERIM EXTREME RISK PROTECTIVE ORDER



Now that is not, by its terms, a "search warrant" as the order must be served on the respondent. So, if your question is may the police break down the door to accomplish service? Yes, they probably may if they have reason to think you're inside. Would they? Good question. They might well. Or they might just serve the order via first class mail.



The notice provided by the order will state: A WARNING TO THE RESPONDENT THAT VIOLATION OF AN INTERIM EXTREME RISK PROTECTIVE ORDER IS A CRIME AND THAT A LAW ENFORCEMENT OFFICER WILL ARREST THE RESPONDENT, WITH OR WITHOUT A WARRANT, AND TAKE THE RESPONDENT INTO CUSTODY IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE RESPONDENT HAS VIOLATED A PROVISION OF THE INTERIM EXTREME RISK PROTECTIVE ORDER



Note that search warrants are expressly authorized on persons who have been served:

5–607.

IN ACCORDANCE WITH THE PROVISIONS OF § 1–203 OF THE CRIMINAL PROCEDURE ARTICLE, ON APPLICATION BY A STATE’S ATTORNEY OR A LAW ENFORCEMENT OFFICER WITH PROBABLE CAUSE TO BELIEVE THAT A RESPONDENT WHO IS SUBJECT TO AN EXTREME RISK PROTECTIVE ORDER POSSESSES A FIREARM AND FAILED TO SURRENDER THE FIREARM IN ACCORDANCE WITH THE ORDER, A COURT MAY ISSUE A SEARCH WARRANT FOR THE REMOVAL OF THE FIREARM AT ANY LOCATION IDENTIFIED IN THE APPLICATION FOR THE WARRANT

Ok thanks for your insight.

Like others have observed, this seems to closely parallel peace/protective orders. From my experience as an officer, we’re not forcibly entering a person’s residence (absent a search warrant) to serve a peace or protective order. Those orders also state that the respondent may be arrested if LEO has probable cause to believe they violated the order. That said, if they haven’t been served with the order, then how can they know what they can/can’t do?

We actually run into that situation fairly regularly. A petitioner calls up saying that respondent is violating the order, we check order status and find that it hasn’t been served, thus no crime committed yet.

Or petitioner calls, says order needs to be served, respondent is home. We show up, no answer at door. “Sorry Mr/Mrs Petitioner, we cant kick down the door”. Same thing with Emergency Petition service.


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[esqappellate]

Is there a right to remain silent? Can you withhold the combination to the safe?

Good question. If you do, they can take the safe or get a court order commanding you to give them the combination. A refusal to comply can be punished as contempt. This is an unsettled area of law under the 5th Amendment. Again, NOT legal advice.

 

[esqappellate]

Ok thanks for your insight.

Like others have observed, this seems to closely parallel peace/protective orders. From my experience as an officer, we’re not forcibly entering a person’s residence (absent a search warrant) to serve a peace or protective order. Those orders also state that the respondent may be arrested if LEO has probable cause to believe they violated the order. That said, if they haven’t been served with the order, then how can they know what they can/can’t do?

We actually run into that situation fairly regularly. A petitioner calls up saying that respondent is violating the order, we check order status and find that it hasn’t been served, thus no crime committed yet.

Or petitioner calls, says order needs to be served, respondent is home. We show up, no answer at door. “Sorry Mr/Mrs Petitioner, we cant kick down the door”. Same thing with Emergency Petition service.


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That's the right result in the run of the mill cases. Police might l break down the door if the order was based on the immediate danger of suicide and there was reason to believe that the respondent was inside or there was reason to believe that there was an active threat to a person inside. "Exigent circumstances" in 4th Amendment parlance. All of this is heavily fact dependent.

 

[MigraineMan]

The notice provided by the order will state: A WARNING TO THE RESPONDENT THAT VIOLATION OF AN INTERIM EXTREME RISK PROTECTIVE ORDER IS A CRIME AND THAT A LAW ENFORCEMENT OFFICER WILL ARREST THE RESPONDENT, WITH OR WITHOUT A WARRANT, AND TAKE THE RESPONDENT INTO CUSTODY IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE RESPONDENT HAS VIOLATED A PROVISION OF THE INTERIM EXTREME RISK PROTECTIVE ORDER

Note that search warrants are expressly authorized on persons who are "subject" to an order. And that language does not require actual prior service.
5–607.
IN ACCORDANCE WITH THE PROVISIONS OF § 1–203 OF THE CRIMINAL PROCEDURE ARTICLE, ON APPLICATION BY A STATE’S ATTORNEY OR A LAW ENFORCEMENT OFFICER WITH PROBABLE CAUSE TO BELIEVE THAT A RESPONDENT WHO IS SUBJECT TO AN EXTREME RISK PROTECTIVE ORDER POSSESSES A FIREARM AND FAILED TO SURRENDER THE FIREARM IN ACCORDANCE WITH THE ORDER, A COURT MAY ISSUE A SEARCH WARRANT FOR THE REMOVAL OF THE FIREARM AT ANY LOCATION IDENTIFIED IN THE APPLICATION FOR THE WARRANT

Does the Petitioner's sworn statement (part of the ERPO sumbission) constitute probable cause for a LEO should the ERPO and reality differ?

For example:
- Petitioner submits that Allegedly-Dangerous-Fred owns three Scary Black Rifles.
- Allegedly-Dangerous-Fred, in reality, only owns one.

That's particularly nasty, because Fred is left trying to prove the negative. I can easily see a Judge holding him in contempt for failure to disclose the location of two firearms he doesn't own.

 

[daNattyFatty]

That's the right result in the run of the mill cases. Police might l break down the door if the order was based on the immediate danger of suicide and there was reason to believe that the respondent was inside or there was reason to believe that there was an active threat to a person inside. "Exigent circumstances" in 4th Amendment parlance. All of this is heavily fact dependent.

Imminent suicide might not even be an exception. One result out of the Villages of Pines case in the 4th Circuit has resulted in my department disallowing use of force to stop a suicide. After all, suicide is not illegal and if that person is only posing a threat to themselves, then police have no right to use force (think tasing someone who’s threatening to slice themselves, or shooting or bean bagging someone threatening to shoot themselves). Other de-escalation means are to be used. Police cannot cause the exigency and someone else needs to be threatened.

So again, we find ourselves in a quandary. If no one answers the door, or otherwise let’s us in, can we force entry on a non crime?

Don’t get me wrong, I am certainly not attacking you on this, just presenting how I’ve seen the real world scenarios play out. This legislation is certainly going to be a CF.


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[j_h_smith]

I am not a lawyer, but as I understand it, this law gives the police orders to remove all firearms and ammo from you house once a complaint has been sworn out on you. My question is do they read you your Miranda Rights at the time they enter with or without a warrant? Does any part of Miranda come into play during these proceedings, you would think that your 5th and 6th Amendment rights are always in play when dealing with the police, but what say ye on this matter?

If my Miranda rights are in tact and you invoke your Miranda rights, how can I be forced to give them the combination of my gun safes or the location of all of my firearms? I know HB1302 says that I must, but do I have to if I invoke my Miranda rights?

Do my Miranda rights trump HB 1302 or is HB 1302 the law of the land?

 

[Clovis]

[B]The House Committee completely and secretly [/B]rewrote the entire original bill[/BThe H] and the House leadership rammed it through in short order. ouse never had a hearing on the amended bill and never gave notice. This is probably why Chairman Zirkin held a hearing when the bill got to the Senate. To his credit.

When I first read the bill I was surprised at how much had been struck out and redone. Never seen anything done that way in the GA before.

The question is, is there any thing that violates rules or laws or ethics by this being done this way? Violation of open meeting rules? This methodology stinks.

 

[esqappellate]

Does the Petitioner's sworn statement (part of the ERPO sumbission) constitute probable cause for a LEO should the ERPO and reality differ?

For example:
- Petitioner submits that Allegedly-Dangerous-Fred owns three Scary Black Rifles.
- Allegedly-Dangerous-Fred, in reality, only owns one.

That's particularly nasty, because Fred is left trying to prove the negative. I can easily see a Judge holding him in contempt for failure to disclose the location of two firearms he doesn't own.

NOT legal advice. The leo executes the order, not the sworn statement of petitioner. So, first question is what the order states. A judge may not compel the respondent to *say* anything under the 5th Amendment. Respondent may be found criminally liable by the act of possession after service of the order. A search warrant may issue on probable cause of such possession.

 

[esqappellate]

When I first read the bill I was surprised at how much had been struck out and redone. Never seen anything done that way in the GA before.

The question is, is there any thing that violates rules or laws or ethics by this being done this way? Violation of open meeting rules? This methodology stinks.

They can and do anything they want, including these sorts of deceptions. No legal remedy.

 

[daNattyFatty]

I am not a lawyer, but as I understand it, this law gives the police orders to remove all firearms and ammo from you house once a complaint has been sworn out on you. My question is do they read you your Miranda Rights at the time they enter with or without a warrant? Does any part of Miranda come into play during these proceedings, you would think that your 5th and 6th Amendment rights are always in play when dealing with the police, but what say ye on this matter?



If my Miranda rights are in tact and you invoke your Miranda rights, how can I be forced to give them the combination of my gun safes or the location of all of my firearms? I know HB1302 says that I must, but do I have to if I invoke my Miranda rights?



Do my Miranda rights trump HB 1302 or is HB 1302 the law of the land?

Miranda applies to interrogations during custodial situations. Being in your house generally doesn’t meet custodial unless you’re arrested or otherwise not free to leave. Whether someone is actually in custody or de facto custody is frequently argued at trial. If they have no intentions of asking you questions while you’re “in custody”, then they don’t have to advise you of Miranda rights.


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[esqappellate]

Imminent suicide might not even be an exception. One result out of the Villages of Pines case in the 4th Circuit has resulted in my department disallowing use of force to stop a suicide. After all, suicide is not illegal and if that person is only posing a threat to themselves, then police have no right to use force (think tasing someone who’s threatening to slice themselves, or shooting or bean bagging someone threatening to shoot themselves). Other de-escalation means are to be used. Police cannot cause the exigency and someone else needs to be threatened.

So again, we find ourselves in a quandary. If no one answers the door, or otherwise let’s us in, can we force entry on a non crime?

Don’t get me wrong, I am certainly not attacking you on this, just presenting how I’ve seen the real world scenarios play out. This legislation is certainly going to be a CF.


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If I were a LEO, would I force my way in to effect service? No way. Not in a million years. The only way I would force my way in would be if I had a search warrant for that residence and only then if it was absolutely necessary. Not an arrest warrant, a search warrant. This protective order is NOT either. Again, NOT legal advice.

 

[daNattyFatty]

Would I were a LEO, would I force my way in to effect service? No way. Not in a million years. The only way I would force my way in would be if I had a search warrant for that residence. Not an arrest warrant, a search warrant. This protective order is NOT either. Again, NOT legal advice.

I wholeheartedly agree.


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[daNattyFatty]

HB1302-"The Neighborhood Bag Lady Can Take Your Guns" bill

I can certainly say that this will lessen cooperation with police in general.

Say an officer is doing a neighborhood canvas, investigating a crime and looking for witnesses. How likely is a firearm owner, who may very well be pro-police, to answer the door, finding that the answer will be an ERPO service?


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[esqappellate]

Miranda applies to interrogations during custodial situations. Being in your house generally doesn’t meet custodial unless you’re arrested or otherwise not free to leave. Whether someone is actually in custody or de facto custody is frequently argued at trial. If they have no intentions of asking you questions while you’re “in custody”, then they don’t have to advise you of Miranda rights.


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Absolutely correct. Of course, there is no duty to talk to the police and the refusal to talk cannot be used against you *IF* you expressly invoke the Fifth Amendment in doing so. Salinas.

 

[esqappellate]

I can certainly say that this will lessen cooperation with police in general.

Say an officer is doing a neighborhood canvas, investigating a crime and looking for witnesses. How likely is a firearm owner, who may very well be pro-police, to answer the door, finding that the answer will be an ERPO service?


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I couldn't agree with you more. There is already a lot of distrust of the police in many neighborhoods. This will not help.

 

[MDFF2008]

I can certainly say that this will lessen cooperation with police in general.

Say an officer is doing a neighborhood canvas, investigating a crime and looking for witnesses. How likely is a firearm owner, who may very well be pro-police, to answer the door, finding that the answer will be an ERPO service?


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I'm sure this is a pleasant side effect for the left. Remember that gun owners are usually strong supporters of police. What a better way to alienate the police.

 

[j_h_smith]

Absolutely correct. Of course, there is no duty to talk to the police and the refusal to talk cannot be used against you *IF* you expressly invoke the Fifth Amendment in doing so. Salinas.

But are you in violation of HB 1302 if you don't give the combination of your gun safe or tell them where every gun is that you own if you invoke your 5th A rights?

I'm just looking for your opinion, not legal advice.

Thanks!

 

[Adolph Oliver Bush]

Kathy Afzali's response to my displeasure.....

I understand your concerns and I have them as well with 2nd Amendment issues. However, facts about HB 1302 are more important than what is on Facebook or social media.
I, like Governor Hogan, supported the Red Flag bill because I don’t want people who are mentally deranged to have access to firearms. I fully support the 2nd Amendment, which is why I have an A rating from the National Rifle Association. However, I believe that convicted criminals and the seriously mentally ill should not have access to firearms. Currently Maryland says that if you are involuntarily committed to a mental institution you cannot purchase a firearm.

I heard the due process concerns after this legislation passed the House, and I worked with Republican members in the Senate (particularly Senator Hough) to address these. The House ended up passing the Senate version which addressed the due process concerns of many. The NRA was part of the workgroup on that bill. The NRA had several amendments added and, in the end, did not oppose the bill.

The following changes were made that I supported:

1. Any interested party was removed and those who can petition a court would now have to be law enforcement, family or a medical doctor

2. The final order requires a clear and convincing standard

3. Law enforcement can be held liable for damage to firearms and they must not mark the firearm and must store them in cases

4. Disqualified individuals can transfer their firearm to a dealer or family member, who is not in the same home

5. At every stage, judges can now order emergency mental health evaluations.

6. Timelines for speedy return of firearms for individuals who were cleared was added to the language.

I do not believe that someone who is an extreme risk of violence should have a firearm. I stand by my vote.

If you have any other question please call me at the number below as I am happy to discuss further.

I got the same thing. I plan to reply, quoting article 21 of the Maryland constitution.

 

[esqappellate]

But are you in violation of HB 1302 if you don't give the combination of your gun safe or tell them where every gun is that you own if you invoke your 5th A rights?

I'm just looking for your opinion, not legal advice.

Thanks!

HB 1302 doesn't compel you to *say* anything. It compels you to surrender firearms upon service of the protective order. You can expressly invoke your 5th Amendment rights and stay silent. HB 1302 cannot trump the 5th Amendment. If the police leave after service and you still possess firearms, that is a crime under this bill. NOT legal advice.