Immediate Action Required -- Urge Gov. Larry Hogan to veto HB 1302 ("red flag bill")

Rack&Roll · Apr 20, 2018

Here is another message for the Governor’s mailbox or Facebook page. Just add your name and send it or use the ideas for your own letter.

Dear Governor Hogan,

"Red flag" is a admirable idea: stopping the next school shooter. That's what “Red Flag" really means.

The Maryand legislature’s "Red Flag" bill, HB1302, however, is the worst kind of “bait and switch."

Maryland legislators "baited" us all by claiming they would produce a true “Red Flag bill” for you to sign--to protect school kids, teachers, staff and visitors.

Instead, the sponsors "switched" it up to draft and ram through a late-session bill that we all know intentionally targets adults who already own guns legally -- a scheme that produces only a police response, and offers no resources to overwhelmed Maryland families.

Worse, it doesn't address the real "red flag" issue: disturbed teens intending to commit a mass school shooting.

What happened to the urgent focus on bullied or troubled teens? Where is Maryland's resource help for them in HB1302?

Please, Governor Hogan, reject this election year trap and announce a your own true “Red Flag Initiative” using available state resources:

* Institute a “Red Flag” hotline (call 611) for callers to be directed to a trained “Red Flag” counselor with information and assistance.

* Create a “Red Flag Website” to give families access to the information in plain language about what help is available.

* Offer an online "Red Flag" questionnaire with check boxes to help families and friends understand the need for intervention or counseling vs. a police response.

* Set up a “Red Flag” text or email access for Smart Phone or laptop inquiries.

Governor, let’s be honest: HB1032 is a flawed approach that prioritizes a last-resort, SWAT police approach to emotional and relationship issues that are better handled with other available Maryland resources much earlier in this process.

The police-only response in HB1302 ensures tense -- and possibly fatal consequences -- for police officers and for the people they confront in this unlawful, ill-advised and ill-constructed scheme.

We urge you, Governor Hogan, to use the same sharp focus you have brought to the opioid crisis to create the most effective “Red Flag Safety & Security Initiative" for Maryland by relying on the expertise of medical and legal professionals, social welfare experts, mental health practitioners and law enforcement consultants rather than the politically motivated schemes of legislators in an election year.

Please, sir, you can rescue Maryland’s “Red Flag” process from the misguided politics and unlawful tactics of HB1302 and start over immediately with an all-hands-on-deck approach that will put a Governor’s Initiative in place well before HB1302, which wouldn't even begin to take effect until October.

Your decisive statewide initiatives have already saved lives, and you can save even more lives now.

Sincerely,

Abulg1972 · Apr 20, 2018

Here’s my letter.

Rack&Roll · Apr 20, 2018

I was told by a Hogan aide today that the Governor has scheduled THREE more bill-signing ceremonies: next Tuesday, April 24, then again on May 8th and May 15.

Check your calendars to see if you can join me and others for these public sessions. I will confirm the times for them but we can expect them to be morning sessions.

It will be our last chance to insist that the Governor reject HB1302 in favor of developing his own improved and comprehensive initiative.

Rack&Roll · Apr 20, 2018

Abulg1972 said:
Here’s my letter.

That is one hell of an excellent letter!

Abulg1972 · Apr 20, 2018

Rack&Roll said:
Abulg1972 said:

Here’s my letter.

That is one hell of an excellent letter!

Click to expand...

I would’ve liked to get into more detail but I knew that I needed to keep it focused.

ddeanjohnson · Apr 24, 2018

I have updated the original post to reflect the announcement by Governor Hogan's office that he will sign HB 1302 on April 24, 2018 (the bill appears on page 11 of this list).

j_h_smith · Apr 24, 2018

Well now... ain't that a kick in the shorts?

Ungermc · Apr 24, 2018

ddeanjohnson said:
I have updated the original post to reflect the announcement by Governor Hogan's office that he will sign HB 1302 on April 24, 2018 (the bill appears on page 11 of this list).

Guess I saw this coming...Hogan keeps playing the pacify democrats game and the law abiding citizens of Maryland keep taking it up the Hershey Highway!

dgapilot · Apr 24, 2018

So, for the legal minds, how would a challenge to this play out? Have cases been brought in other states with similar laws? Do we need to await until it is in effect to challenge it? Does one of these protective orders need to be filed to have a plaintiff? And, probably most important, with the various 2A organizations, who could fund it, and where would “red flag” laws lacking due process fall in the priority list?

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Schipperke · Apr 24, 2018

dgapilot said:
So, for the legal minds, how would a challenge to this play out? Have cases been brought in other states with similar laws? Do we need to await until it is in effect to challenge it? Does one of these protective orders need to be filed to have a plaintiff? And, probably most important, with the various 2A organizations, who could fund it, and where would “red flag” laws lacking due process fall in the priority list?

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Yes, found two (CT, IN)

onedash · Apr 24, 2018

dgapilot said:
So, for the legal minds, how would a challenge to this play out? Have cases been brought in other states with similar laws? Do we need to await until it is in effect to challenge it? Does one of these protective orders need to be filed to have a plaintiff? And, probably most important, with the various 2A organizations, who could fund it, and where would “red flag” laws lacking due process fall in the priority list?

Guess we need a Rosa Parks first. Not sure if that means someone who refuses to surrender their firearms when they come for them.

GTOGUNNER · Apr 24, 2018

I am at the point where staying in Maryland is like putting money in an old car. Dumb.

Gunbunny · Apr 24, 2018

IANAL, but I would bet that in order to have standing, a plaintiff would have to be found who had been the respondent to one of these orders. I don't know that they would have to refuse to surrender in order to have standing, in fact I would argue that they would be a better plaintiff if they went along with it, surrendered their legally owned property, and then filed suit, rather than muddying the waters with refusal to comply with a lawful order, etc.

Abulg1972 · Apr 24, 2018

dgapilot said:
So, for the legal minds, how would a challenge to this play out? Have cases been brought in other states with similar laws? Do we need to await until it is in effect to challenge it? Does one of these protective orders need to be filed to have a plaintiff? And, probably most important, with the various 2A organizations, who could fund it, and where would “red flag” laws lacking due process fall in the priority list?

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I actually support a Red Flags type of approach; just not this one. A good Red Flag system could've prevented the Florida school shooting. I do think we need a system whereby a mentally-disturbed person who has access to firearms and poses a danger to him/herself and/or others can be neutered until his/her issues are resolved. My issue with Maryland's bill - now law - is that it gives courts way too much discretion to take guns and gives courts no guidance on the standard to be employed in reaching a decision. A petitioner merely has to provide enough of a story to convince a judge that there are "reasonable grounds to believe that the respondent poses an immediate threat . . .." That is such a LOW standard of "proof" (for lack of a better term. What will constitute "reasonable grounds"? That's going to be the million dollar question.

Delusional people can be quite convincing. People who suffer from narcissistic personality disorder can be quite convincing. Unfortunately, in the case of familial disputes (divorces, custody), one of the participants is often delusional and/or a narcissist. An angry/delusional/narcissistic spouse who wants guns out of the house is going to swear to almighty God that her estranged husband is crazy, has an arsenal and spent the last 4 hours pacing back and forth talking to himself while holding his pistol. The judge, who will not hear from Mr. X, is going to hear that story and say "Geez, what if I don't issue the ERPO and this guy shoots up a school? My name will be all over the paper." Guess what's going to happen in that situation? You guessed it. That judge is going to issue an ERPO because, well, better safe than sorry and Mr. X will have a right to dispute delusional estranged wife's story and get his guns back. Yeah, great. That's after the sheriff shows up with a truck to haul away valuable guns.

The standard sounds to me a lot like probable cause: facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. A showing of objectively suspicious activities, not just the officer's subjective view of the situation. The officer's sworn statements must establish more than a bare suspicion that criminal activity has taken or is taking place. Hopefully, courts will employ that kind of review when deciding whether to issue an ERPO.

There won't be any legal challenges to the issuance of an ERPO. The respondent will have a right to spend a fortune disputing the petitioner's claims before a final order is entered. The issuance of an order is at the court's discretion. A higher court will review that decision under an abuse of discretion standard - did the lower court abuse its discretion in finding "reasonable grounds to believe that the respondent posed an immediate threat." In other words, was the judge justified in believing at the time that the petitioner was credible. That's a hard standard to overcome. And, even if a respondent were to show that the court abused its discretion, so what? What's the remedy? The damage is done. A respondent who prevails at his/her hearing can always sue the petitioner for defamation. Good luck with that.

As for a constitutional challenge, it's going to be mighty hard to convince a court that a temporary confiscation of firearms, with a right to a speedy hearing and ability to get them back, is unconstitutional.

esqappellate · Apr 25, 2018

Abulg1972 said:
I actually support a Red Flags type of approach; just not this one. A good Red Flag system could've prevented the Florida school shooting. I do think we need a system whereby a mentally-disturbed person who has access to firearms and poses a danger to him/herself and/or others can be neutered until his/her issues are resolved. My issue with Maryland's bill - now law - is that it gives courts way too much discretion to take guns and gives courts no guidance on the standard to be employed in reaching a decision. A petitioner merely has to provide enough of a story to convince a judge that there are "reasonable grounds to believe that the respondent poses an immediate threat . . .." That is such a LOW standard of "proof" (for lack of a better term. What will constitute "reasonable grounds"? That's going to be the million dollar question.

Delusional people can be quite convincing. People who suffer from narcissistic personality disorder can be quite convincing. Unfortunately, in the case of familial disputes (divorces, custody), one of the participants is often delusional and/or a narcissist. An angry/delusional/narcissistic spouse who wants guns out of the house is going to swear to almighty God that her estranged husband is crazy, has an arsenal and spent the last 4 hours pacing back and forth talking to himself while holding his pistol. The judge, who will not hear from Mr. X, is going to hear that story and say "Geez, what if I don't issue the ERPO and this guy shoots up a school? My name will be all over the paper." Guess what's going to happen in that situation? You guessed it. That judge is going to issue an ERPO because, well, better safe than sorry and Mr. X will have a right to dispute delusional estranged wife's story and get his guns back. Yeah, great. That's after the sheriff shows up with a truck to haul away valuable guns.

The standard sounds to me a lot like probable cause: facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. A showing of objectively suspicious activities, not just the officer's subjective view of the situation. The officer's sworn statements must establish more than a bare suspicion that criminal activity has taken or is taking place. Hopefully, courts will employ that kind of review when deciding whether to issue an ERPO.

There won't be any legal challenges to the issuance of an ERPO. The respondent will have a right to spend a fortune disputing the petitioner's claims before a final order is entered. The issuance of an order is at the court's discretion. A higher court will review that decision under an abuse of discretion standard - did the lower court abuse its discretion in finding "reasonable grounds to believe that the respondent posed an immediate threat." In other words, was the judge justified in believing at the time that the petitioner was credible. That's a hard standard to overcome. And, even if a respondent were to show that the court abused its discretion, so what? What's the remedy? The damage is done. A respondent who prevails at his/her hearing can always sue the petitioner for defamation. Good luck with that.

As for a constitutional challenge, it's going to be mighty hard to convince a court that a temporary confiscation of firearms, with a right to a speedy hearing and ability to get them back, is unconstitutional.

All of this is true. A few additional points. Under the case law, the reasonable grounds standard is essentially probable cause. That's the standard used in Title 10 of the Health General Article for civil commitment seizure of the person. The guns can be seized under that Article only *after* a hearing and a finding of involuntary civil commitment or voluntary commitment for more than 30 days. That's due process. The grabbers want to seize guns first under a lower, probable cause standard. The final protective order under this bill is after a hearing and is issued under a clear and convincing standard. Got to lawyer up. It is unclear if the respondent gets discovery, or has a right to cross examine the petitioner, or other process. As to a remedy for abuse of this process, there is NONE. Given the time frames in this bill, there will be no appeals until the final order issues -- there won't be time. The bill expressly provides that the petitioner gets full immunity from civil and criminal liability if the petition is filed in "good faith." That's an impossible standard to overcome as it is purely subjective.

One of the real constitutional problems (there are others associated with an ex parte seizure of constitutionally protected property) with this bill is that it creates a whole new classification under the Equal Protection clause. The bill expressly applies ONLY to persons who pose an immediate threat to themselves or others "BY POSSESSING A FIREARM" Persons who pose such an extreme risk or threats but do not possess a firearm are NOT covered by the bill. Such persons can only be proceed against under the Health General Article. The premise is that it is the mere possession that creates the risk, not the person himself. The remedy is to seize the firearms, not the person for possible civil commitment. All of this is beyond idiotic. The bill permits the judge to refer the respondent for an emergency evaluation (under probable cause standard), but the seizure of the firearms takes place regardless of whether such referral takes place.

swinokur · Apr 25, 2018

Does this mean a legal challenge might be considered?

Abulg1972 · Apr 25, 2018

esqappellate said:
Persons who pose such an extreme risk or threats but do not possess a firearm are NOT covered by the bill. Such persons can only be proceed against under the Health General Article.

Well, there's an easy fix - amend the law to allow for the seizure of pressure cookers, ammonium nitrate, bayonets and box trucks.

One of my biggest concerns arises because of the general ignorance of and/or disdain for firearms by a large percentage of the population. I don't think that courts - at least not in liberal counties/cities - take seriously the rights afforded by the 2nd amendment, and will find it easy to justify the issuance of an ERPO. I mean, after all, the respondent gets a hearing to disprove the claims and can get his/her guns back. Also, how and where are they going to store all of Mr. X's guns, and what happens if they get "lost"?

It seems to me that the Red Flag "order" should be to involuntarily commit the respondent until the final hearing. Take him away, not his guns.

The

swinokur · Apr 25, 2018

An involuntary commitment make you a prohibited person.

esqappellate · Apr 25, 2018

Abulg1972 said:
Well, there's an easy fix - amend the law to allow for the seizure of pressure cookers, ammonium nitrate, bayonets and box trucks.

One of my biggest concerns arises because of the general ignorance of and/or disdain for firearms by a large percentage of the population. I don't think that courts - at least not in liberal counties/cities - take seriously the rights afforded by the 2nd amendment, and will find it easy to justify the issuance of an ERPO. I mean, after all, the respondent gets a hearing to disprove the claims and can get his/her guns back. Also, how and where are they going to store all of Mr. X's guns, and what happens if they get "lost"?

It seems to me that the Red Flag "order" should be to involuntarily commit the respondent until the final hearing. Take him away, not his guns.

The

Agreed, and thus make it applicable to the entire populace, not merely gun owners. Anyone who poses an immediate threat to himself or others should be evaluated. But wait, there is an existing law that covers that so this bill is entirely unnecessary..... No matter to the grabbers, because grabbing guns is all they want.

esqappellate · Apr 25, 2018

swinokur said:
In MD doesn’t an involuntary commitment make you a prohibited person?

Yes, but there are due process procedures in place, including a requirement that the person suffer from a mental defect.

Immediate Action Required -- Urge Gov. Larry Hogan to veto HB 1302 ("red flag bill")

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