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Old April 11th, 2018, 06:40 AM #1
ddeanjohnson ddeanjohnson is offline
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Talking points on new Maryland "Red Flag" law (HB 1302) - takes effect Oct. 1, 2018

UPDATE: Governor Hogan signed House Bill 1302 -- the bill discussed below -- on Tuesday April 24, 2018. The new law will become effective as of October 1, 2018.

THE CURRENT SITUATION

On April 9, 2018, the Maryland General Assembly gave final approval to House Bill 1302, the so-called "red flag" bill. This is legislation to create a new process for issuance of orders (“Extreme Risk Protective Orders,” ERPOs) to require seizure of personally owned firearms and ammunition, and even entire gun collections, entirely on the basis of unchallenged accusations entered on a form (“petition”) and filed in a secret, ex parte (one-sided) administrative-judicial proceeding. Such orders likely will come to be routinely issued by district court commissioners (rather like a court clerk), without any serious scrutiny, or by district court judges who will often will lack any information other than the petitioner's allegations, and may do lasting harm to many blameless persons.

Because Gov. Hogan signed the bill into law on April 24, 2018, it will take effect on October 1, 2018.

WHAT TO DO NOW

For those who wish to express their disappointment with the decision to sign HB 1302: Governor Hogan's office maintains a contact page, which includes a webform for sending emails of up to 2000 characters. Those who wish to send a more formal letter may submit it as an attachment to the webform message.

The phone numbers to register your opinion are: 410-974-3901 or 1-800-811-8336

There is also a published fax number: 410-974-3275.

MORE DETAILED INFORMATION ON THE BILL

A Maryland Shall Issue update that describes the "skulduggery" that got HB 1302 over the legislative finish line, on the last day of the 2018 regular legislative session, is here.

Mark W. Pennak, president of Maryland Shall Issue, who has long experience as an appellate attorney in the federal system, has written a cogent and hard-hitting analysis of the final version of House Bill 1302, which MSI has submitted to the governor's office, and which you can read here.

Mr. Pennak's analysis contains many specific points that you might draw on in your letters or conversations. What follows are a few points that I have formulated, or lifted from Mr. Pennak or others. Copy, adapt, add your own.

* The legislature's Democratic leadership bent normal procedures to ram the bill through on the last day of the legislative session. It cleared both houses on near-party-line votes. In the Senate, only one Republican senator supported the final bill, while 12 Republican senators opposed it (they were joined by one Democrat). In the House, only five Republican delegates voted for final passage, while 41 Republicans opposed it.

* Under the legislation as passed, a judge (or even a mere commissioner, little more than a clerk) would routinely issue an initial ERPO based entirely on a one-sided presentation submitted on paper, without knowledge of possibly vital information about the character and circumstances of the respondent, or regarding the possible motivations of the petitioner (or, the motivations or objectivity of the complaining citizen who instigates a petition that is formally filed by law enforcement). The commissioner or judge will have absolutely no information other than the allegations in the petition, which in some cases may be riddled with error or subjectivity, or based on hearsay that the police merely transmit without independent investigation. The petitioner may have motivations that the commissioner or judge will have no way of discerning.

* What could go wrong? The scenarios for abuse are many. Perhaps the person targeted by the ERPO is a retired police officer, who has been angered a granddaughter by objecting to her use of illegal drugs. Perhaps the targeted person has been a witness against members of a local criminal gang, and because of the resulting death threats, has been issued a Wear & Carry Permit by the Maryland State Police. Perhaps the targeted person is an activist who has publicly (e.g., on social media) advocated controversial policies on emotion-generating issues, such as gun control, or same-sex marriage, or immigration policy, or the Maryland governor’s race, or you name it -- with the result that some hard-core activists opposed to the target’s viewpoint have decided that he is "fair game" for attack, through an abuse of a one-sided process that invites abuse. Perhaps the target is a hunter, whose form of recreation deeply angers a relative who holds strong anti-hunting views. Perhaps the targeted person is a harmless and responsible gun collector, whose decades of painstaking collecting activity will be devastated by a petition filed in error or in malice.

* The allegations contained in a petition must be sworn to "under the penalty of perjury" -- but candid prosecutors and defense lawyers will agree that in the justice system, perjury is often witnessed but seldom prosecuted. Perjury is difficult to prove. Moreover, the legislation contains a sweeping immunity for anyone filing a petition in "good faith," whatever that may mean. Even if the petitioner honestly believes everything alleged in the petition, the information in some petitions will rest on subjectivity, delusion, hyper-sensitivity, hearsay, mistaken identity, memory errors, or other sources of error. A petitioner may be sincere, and yet consciously or unconsciously influenced by prejudice regarding the target’s political opinions, life style, race, sexual orientation, manner of dress, associations, or any number of other factors.

* The gun owner ("respondent") will learn of the matter only when the sheriff's deputies show up at the door to serve the “interim” ERPO, demanding the surrender of firearms, on pain of criminal sanctions. It matters not that the target may be certain that the ERPO was issued on the basis of erroneous information -- he is now in the brave new world of "Sentence first -- verdict afterwards."

* The bill's definition of "firearms" covers all gunpowder-based guns, including antiques and muzzleloaders, and even starter pistols (but not air guns). The bill's definition of "ammunition" covers every type of cartridge and shell, including blanks, as well as detached primers. (See bill page 28, lines 28 and 21, respectively)

* The bill provides no mechanism by which a gun owner who has done nothing wrong, and who is certain that the ERPO is based on erroneous claims, can avoid becoming a criminal if he does not surrender all firearms to the tender mercies of law enforcement. Tellingly, the Senate committee rejected, on a party-line vote, an amendment offered by Sen. Bob Cassilly (R) to provide the targeted gun owner with the option of submitting himself to confinement (and mental-health evaluation) for a few days, in a regional emergency-evaluation facility, until he has an opportunity to appear in person (and with counsel) before a real judge, to present evidence regarding his circumstances and dispositions, and regarding the sources and motivations behind the misinformation contained in an ill-founded ERPO petition (with the guns remaining undisturbed in the meantime). The rejection of this "voluntary confinement option" is one evidence that some proponents of HB 1302 were most interested in creating a mechanism by which firearms can be routinely seized through one-sided quasi-judicial proceedings – a mechanism that they perhaps hope to later expand -- rather than the stated purpose of neutralizing the capacity of targeted persons to harm themselves or others.

* HB 1302 is even more susceptible to abuses and constitutional infringements than so-called "red flag" bills that had been objected to by the ACLU affiliates in Rhode Island and California – the latter bill was then vetoed by California Gov. Jerry Brown (D) in 2016. (For detailed citations, see my March 23 testimony before the Maryland Senate Judicial Proceedings Committee, attached.)

* Under HB 1302, the "universe" of people who can directly file a ERPO is broad -- it includes any person "related to the respondent by blood, marriage, or adoption" (wherever that person resides), a spouse, anybody who lives with the respondent, any "individual who has a child in common with the respondent," "a current or intimate partner of the respondent," anybody in eight different categories of health care professionals and social workers/counselors "who has examined the individual" (no requirement as to how recently), and any law enforcement officer. One version of HB 1302 also contained the phrase "any other interested person," which was removed in the Senate, but not too much importance should be put on that change, because backers of the bill anticipate that those who do not fit into the categories quoted above will simply complain to a local law enforcement agency. It seems likely that, particularly in some of the urban jurisdictions in Maryland, law enforcement agencies will routinely file petitions on behalf of just about anybody who reports that a gun owner has engaged in some action or utterance that the complainant considers ominous or bothersome. Once the law enforcement agency has filled out the form and filed the petition, the commissioner or judge most likely will be neither inclined or equipped to apply any critical scrutiny, and will routinely issue a short-term ERPO (confiscation order). The true originator of the complaint may have motivations that neither the police nor the judge will be aware of.

* From Mr. Pennak's analysis: Under the bill, a judge may issue (1) an ex parte interim seizure order, (2) a temporary seizure order, and (3) seven days later (and even later if the time is extended), a final seizure order. Yet, under this bill, the respondent is not entitled to present any evidence or have that evidence considered until the final seizure order is heard. Specifically, the interim seizure order is completely ex parte and the provision for a temporary order states . . . [that only] the petitioner’s evidence is considered. This limitation on the evidence is egregious, as a respondent served with an interim order under this bill gets notice of a temporary order hearing and may appear at the temporary order hearing. If the gun owner appears, he or she should be entitled to present evidence and have that evidence considered. Yet, as this language is written, the respondent is not entitled to present evidence prior to the entry of the temporary order and, even if allowed to do so, the court is free to ignore it and consider only the petitioner’s evidence. That is a fundamental denial of due process.

* From Mr. Pennak's analysis: The bill requires only "notice" to the respondent, yet nothing in the "notice" requirement mandates that the respondent receive an actual copy of the petition and all supporting evidence. Nothing in this bill ensures that the respondents have the right to cross-examine the petitioner or enjoy compulsory process. And, as noted, the bill does not even obligate the judge to consider the respondent's evidence until the final hearing, long after his constitutionally protected personal property has been seized by law enforcement. There is also no standard by which a lay judge must assess the issue of whether the respondent poses an "immediate danger" prior to seizing a person’s property. District judges are not mental health professionals. Such judges are competent at assessing "probable cause" for crimes, but they have no expertise in the field of mental health or at predicting future crimes. The risk of wrongful deprivation is apparent. These are all basic violations of due process.

* As Abulg1972, a Maryland attorney, pointed out in his excellent April 20, 2018 letter to Governor Hogan, posted here, "The identity of a respondent with respect to whom an extreme risk protective order is issued will appear in the Maryland Judiciary's Case Search Database, as will the fact that such an order was entered. That information will be available to any member of the public. The existence and availability of that information could cause devastating harm to the respondent's personal and professional relationships, livelihood, etc."

ADDITIONAL RESOURCES

The official text of the passed version ("enrolled bill") is attached to this post, or it can be downloaded from the Maryland General Assembly website here.

The official roll call by which HB 1302 passed the Maryland Senate (31-13) on April 6, 2018, is attached to this post, or it can be downloaded from the MGA website here.

The official roll call by which HB 1302 received final approval (93-46) from the Maryland House of Delegates on April 9, 2018, is attached to this post, or it can be downloaded from the MGA website here.


*****
Attached Images
File Type: pdf Senate roll call on HB 1302.pdf (120.5 KB, 111 views)
File Type: pdf Testimony of Douglas Johnson on HB 1302.pdf (72.8 KB, 100 views)
File Type: pdf House Bill 1302 Enrolled.pdf (700.9 KB, 97 views)
File Type: pdf House of Delegates roll call on HB 1302 April 9 2018.pdf (128.0 KB, 76 views)

Last edited by ddeanjohnson; April 25th, 2018 at 01:31 PM. Reason: Updated to reflect that Gov. Hogan signed the bill on April 24, 2018
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Old April 11th, 2018, 07:58 AM #2
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Thanks.....sent this on to my kids to read and respond. Also to pass it on to their friends via social media.
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Old April 11th, 2018, 09:30 AM #3
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Message to Hogan sent. Iíll post this on our Facebook page when I get to the store.
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Old April 11th, 2018, 09:32 AM #4
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Done
Hope he actually listens to us

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Old April 11th, 2018, 10:10 AM #5
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Old April 11th, 2018, 10:25 AM #6
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Called and emailed. Everyone has a right to face their accuser!
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Old April 11th, 2018, 10:36 AM #7
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Unintended Consequences

Thanks.

I focused my comments on the unintended consequences more than the constitutional rights.

Attempts at gun seizures, especially where based on an ex parte, proceeding, are likely to provoke standoffs or subsequent violence that otherwise would not have occurred.

I wonder how many women have been hurt or killed BECAUSE they sought a protective order. They aren't magic.

A man with anger issues who owns a gun isn't going to be happy about it being taken away.

I realize that argument acknowledges the overlap between gun owners and violent people, but I think it's politically easier to veto the bill on that ground, than on the gun rights argument.
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Old April 11th, 2018, 12:43 PM #8
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Called and expressed my views.

Shared this theead with people i know that dont view these forums.

Share and spread the info ASAP.
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Old April 11th, 2018, 01:03 PM #9
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Sent. Thanks for making us aware of this.
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Old April 11th, 2018, 01:07 PM #10
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Here is the link to MSI's veto letter to the Governor.
https://www.marylandshallissue.org/j...st-for-hb-1302

This was corrected to reflect that Senator Reilly (R) voted for HB 1302. Thank you, ddeanjohnson
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