TexasCHLforum.com

DevilDawg wrote: ↑Sat May 26, 2018 2:04 pm Ah yes, precrime.. good thing we had a movie about that benefit to society to condition us to willfully surrender our rights to peoples “feelings”

So, a severely mentally ill person should just be left alone by his/her family, friends or authorities until a crime is committed? Do you base all of your decisions on movies? On the contrary, my opinions in this matter are based on real life personal experience that ended in the death of a family member and the attempted suicide of another that left him with the mental capacity of a 4 year old for the 30 years.

The point being, proactive action by those that know the mentally ill person can go long way in protecting the mentally ill person as well as others. They just need a process to do so.

srothstein wrote: ↑Sat May 26, 2018 3:17 pm

philbo wrote: ↑Sat May 26, 2018 8:12 am

mojo84 wrote: ↑Sat May 26, 2018 6:05 amIt's not confiscation of one's guns "just because they might possibly commit a crime". It is temporarily removing the guns from a person's possession based upon a preponderance of evidence that the person is mentally ill to the point of harming themself or others.

Reading the proposed legislation, this bill requires clear and convincing evidence, not merely a preponderance of of evidence... this is a lot more difficult standard to meet in court than a layman might presume. That coupled with the ability of the charged party to have a rehearing during the 182 days of suspension is more conservative than I've read in some other proposals/laws passed by other states.

The way I read the summary attached, there is a hearing within one day that is only based on a preponderance of the evidence. The hearing a week later is where the clear and convincing evidence rule kicks in.

My guess is that the way the law is written is that it will be held unconstitutional. The first hearing is an ex parte hearing without the respondent being notified. It may also, if the police file it, include a search warrant to find the guns. I have faith that this will not pass Supreme Court scrutiny, based on how protective orders that were from ex parte hearings do not result in a ban on firearms possession, combined with Heller.

I could be wrong and SCOTUS could say the emergency needs overrule your rights, but I don't think they will. It seems like an ex parte hearing based on as low a standard as a preponderance of the evidence should not cut it. I could support it if the evidence standard were significantly higher or if the law required the respondent to be notified and given the chance to participate in the original hearing, but this one is too far, IMHO.

I appreciate your feedback and comments about how the bill is written. Since I am not a lawyer or an expert in this area, I am not convinced the bill, as written, is good. However, I do believe there needs to be some process that preserves a person's rights as much as possible while allowing some one that is seriously mentally and a danger to himself or others be separated from their guns until they can be treated and their mental competency adjudicated.

philbo wrote: ↑Sat May 26, 2018 8:12 am

mojo84 wrote: ↑Sat May 26, 2018 6:05 amIt's not confiscation of one's guns "just because they might possibly commit a crime". It is temporarily removing the guns from a person's possession based upon a preponderance of evidence that the person is mentally ill to the point of harming themself or others.

Reading the proposed legislation, this bill requires clear and convincing evidence, not merely a preponderance of of evidence... this is a lot more difficult standard to meet in court than a layman might presume. That coupled with the ability of the charged party to have a rehearing during the 182 days of suspension is more conservative than I've read in some other proposals/laws passed by other states.

I just used the wording provided by the link posted and assumed they had it correct. The preponderance of evidence standard is for the initial removal of the guns and then the standard you pointed out is the standard to continue the ERPO order.

"The bill creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO). The petitioner must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in her or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.

After issuance of a temporary ERPO, the court must schedule a second hearing no later than 7 days following the issuance to determine whether the issuance of a continuing ERPO is warranted. If a family or household member or a law enforcement officer establishes by clear and convincing evidence that a person poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing, or receiving a firearm, the court may issue a continuing ERPO. The ERPO would prohibit the respondent from possessing, controlling, purchasing, or receiving a firearm for 182 days."

Pawpaw wrote: ↑Sat May 26, 2018 9:32 am If you guys think this law is so correct, please tell me why it ONLY targets firearms.

If "the person is mentally ill to the point of harming themself or others", why doesn't it mention taking away their knives, axes, hatchets, hammers, screwdrivers, etc? Don't forget vehicles. It's been abundantly proven that cars & trucks can be used as deadly weapons.

It seems to me that if a person is that mentally ill, we would all be better served if they took him/her off the street and got them the help they need.

At least in Texas, there is already a method to have someone's driver's license revoked. https://www.dps.texas.gov/DriverLicense ... cation.htm

Therefore, why are you guys that are so opposed to such a law regarding guns not upset and protesting the process for taking someone's driver license? Same goes for an LTC.

Pawpaw wrote: ↑Sat May 26, 2018 12:02 am

mojo84 wrote: ↑Fri May 25, 2018 5:02 pm

Pawpaw wrote: ↑Wed May 23, 2018 2:39 pm

mojo84 wrote:

RogueUSMC wrote:

Papa_Tiger wrote:

Soccerdad1995 wrote:

ELB wrote:Seems to me that if a person” qualifies” to have his firearms taken away because he is mentally unstable and/or danger to others, then it Should be the person that is confiscated, not the firearms.

If someone is this dangerous, then they should be locked up. They should not have access to any weapons, including vehicles, knives, etc.

With due process of course...

'Due process' meaning a jury of your peers not just a robe on a bench...

So arrest warrants that temporarily take away one's freedom should be ruled on by a jury before being issued instead of a robe on a bench?

Anything less is a violation of the Constitution.

Amendment V wrote:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

So, you are really upset with how search and arrest warrants are obtained and believe that process is unconstitutional? It appears this proposed law works very similar to them. Do you believe people should be tried and convicted prior to being arrested?

I'm not an attorney but it does not appear to me that only a jury trial is the only form of due process. https://dictionary.law.com/Default.aspx?selected=595

That's an absurd argument. Nowhere in this discussion has anyone said anything about being arrested for the suspicion of a crime. This whole discussion is about the government seizing weapons because someone thinks you might commit a crime.

Being arrested and charged with a crime is part of due process. Confiscating someone's legally owned property just because they might possibly commit a crime is not..

You ignore the fact the proposed law in Colorado proposes to work very similar to how arrest warrants are processes and issued.

It's not confiscation of one's guns "just because they might possibly commit a crime". It is temporarily removing the guns from a person's possession based upon a preponderance of evidence that the person is mentally ill to the point of harming themself or others. If this law passes, it will become part of the due process just as it is part of due process to arrest someone and temporarily take away their liberty until the trial because they are suspected of a crime.

Like I said, I do not know if this law is well enough written to mitigate abuse but I do know from experience, there needs to be a better process for friends, family and law enforcement to get people the help they need and protect the public and the mentally ill person from harm.

ScottDLS wrote: ↑Fri May 25, 2018 6:53 pm

mojo84 wrote: ↑Fri May 25, 2018 6:17 pm

ninjabread wrote: ↑Fri May 25, 2018 6:10 pm Yes it may be. I suggest you do that.

I see people here who look willing to remove someone's liberty and freedom and their guns, after a trial by a jury of their peers. I don't see anybody suggesting people should be locked up and allowed to keep their guns while locked up, which you claim "so many" do. However, I do see people willing to infringe constitutional rights like RKBA without a jury trial, because the accused is allegedly dangerous, but they want to let the allegedly dangerous people back into society with free access to knives, poisons, explosives, motor vehicles, etc.

Look at ELB's posts and those that agree with him. He clearly stated if someone should have their guns removed they should be locked up. The problem is, as is explained in the link provided, it's very very difficult to get someone involuntarily committed in today's world.

That is good. It should be very difficult. I believe in Texas, long term involuntary commitment requires a finding by a jury. My father sat on such a jury. Since it was clear (at least to that jury) that the guy was in fact "batpoocrazy", they granted the commitment petitioned by the State. SCOTUS has already ruled that in order to have a domestic restraining order causing someone to forfeit their gun rights federally, the person must be accorded due process including a hearing before a judge, the right to have testimony favorable to him brought and the right to be represented by a lawyer, and to challenge witnesses against him. Because taking someones gun rights with a restraining order is temporary and does not involve incarceration, a jury trial isn't necessarily required. But the standard for some of these new restraints on liberty being proposed is significantly weaker.

You are conflating long-term/permanent with temporary. This law is discussing temporary until it can be adjudicated. How long does it take to get a case to trial? What do you suggest in the interim?

I agree it should be difficult to get one's rights removed. I do not know if this particular proposed law is well written or not. However, I do know from experience, our mental health system and getting someone the level of help they need can be extremely difficult and can take years.

Odinvalknir wrote: ↑Fri May 25, 2018 6:15 pm

Liberty wrote: ↑Fri May 25, 2018 5:47 pm Those who have had a divorce from an angry vengeful spouse would understand why this confiscation might not be such a great idea.

along with the domestic abuse rule that takes away your rights. I could maybe see if you're a repeat offender of domestic abuse, but if you get into an argument and the neighbor calls the cops, someone is going to jail whether you lay a hand on each other or not. Usually this is the man who will go to jail over it, and then suddenly he's never allowed to own a gun ever again.

This is absolutely incorrect. Please cite a case where someone was arrested for just arguing and there was no physical abuse.

ninjabread wrote: ↑Fri May 25, 2018 6:10 pm Yes it may be. I suggest you do that.

I see people here who look willing to remove someone's liberty and freedom and their guns, after a trial by a jury of their peers. I don't see anybody suggesting people should be locked up and allowed to keep their guns while locked up, which you claim "so many" do. However, I do see people willing to infringe constitutional rights like RKBA without a jury trial, because the accused is allegedly dangerous, but they want to let the allegedly dangerous people back into society with free access to knives, poisons, explosives, motor vehicles, etc.

Look at ELB's posts and those that agree with him. He clearly stated if someone should have their guns removed they should be locked up. The problem is, as is explained in the link provided, it's very very difficult to get someone involuntarily committed in today's world.

ninjabread wrote: ↑Fri May 25, 2018 5:56 pm

mojo84 wrote: ↑Fri May 25, 2018 5:38 pmAlso, why are so many willing to remove someone's liberty and freedom but not their guns?

Where did anybody here suggest somebody should be able to keep their guns while they're locked up?

What are you talking about? Reading the thread and following the conversation may be helpful.

Liberty wrote: ↑Fri May 25, 2018 5:47 pm Those who have had a divorce from an angry vengeful spouse would understand why this confiscation might not be such a great idea.

Those that have lost a family member due to not being able to force them to get the level of care they needed can see the benefits in having a statutory process for doing so.

False accusations go on already. Look at the recent police abuse accusations that were discredited by body camera video. That's no reason to not put a fair process in place to help someone protect someone that is not capable of helping themselves.

C-dub wrote: ↑Fri May 25, 2018 5:19 pm

ELB wrote: ↑Tue May 22, 2018 8:41 pm Seems to me that if a person” qualifies” to have his firearms taken away because he is mentally unstable and/or danger to others, then it Should be the person that is confiscated, not the firearms.

crazy2medic wrote: ↑Tue May 22, 2018 8:44 pm I believe they really have no desire to stop the mass shootings, their goal is to get gun confiscation! You cannot subjugate an armed populace!

There you go!

What "seems" should happen is not what actually happens. Here is some info that sheds some light on how hard it is to get someone involuntarily committed due to mental illness. https://mentalillnesspolicy.org/ivc/inv ... cepts.html

This is my exact point. Most of us are as ignorant about the laws regarding having someone involuntarily committed as many of the antigunners are about guns and the 2nd Amendment.

Also, why are so many willing to remove someone's liberty and freedom but not their guns?

Pawpaw wrote: ↑Wed May 23, 2018 2:39 pm

mojo84 wrote:

RogueUSMC wrote:

Papa_Tiger wrote:

Soccerdad1995 wrote:

ELB wrote:Seems to me that if a person” qualifies” to have his firearms taken away because he is mentally unstable and/or danger to others, then it Should be the person that is confiscated, not the firearms.

If someone is this dangerous, then they should be locked up. They should not have access to any weapons, including vehicles, knives, etc.

With due process of course...

'Due process' meaning a jury of your peers not just a robe on a bench...

So arrest warrants that temporarily take away one's freedom should be ruled on by a jury before being issued instead of a robe on a bench?

Anything less is a violation of the Constitution.

Amendment V wrote:No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

So, you are really upset with how search and arrest warrants are obtained and believe that process is unconstitutional? It appears this proposed law works very similar to them. Do you believe people should be tried and convicted prior to being arrested?

I'm not an attorney but it does not appear to me that only a jury trial is the only form of due process. https://dictionary.law.com/Default.aspx?selected=595

RogueUSMC wrote:

Papa_Tiger wrote:

Soccerdad1995 wrote:

ELB wrote:Seems to me that if a person” qualifies” to have his firearms taken away because he is mentally unstable and/or danger to others, then it Should be the person that is confiscated, not the firearms.

If someone is this dangerous, then they should be locked up. They should not have access to any weapons, including vehicles, knives, etc.

With due process of course...

'Due process' meaning a jury of your peers not just a robe on a bench...

So arrest warrants that temporarily take away one's freedom should be ruled on by a jury before being issued instead of a robe on a bench?

apostate wrote:Taking guns away from Mark Anthony Conditt would have accomplished what exactly?

Taking guns away from Shawn Grate would have accomplished what exactly?

Taking guns away from Timothy McVeigh would have accomplished what exactly?

Taking guns away from Ted Bundy would have accomplished what exactly? (Actually, didn't he have a felony record before committing most of the murders?)

The list goes on and on.

It's ridiculous to bring up completely unrelated issues. No one is saying this is going to end all mass murders. Try to stay on topic. It may lend some credibility to your argument.

Odinvalknir wrote:https://leg.colorado.gov/bills/hb18-1436

The bill creates the ability for a family or household member or a law enforcement officer to petition the court for a temporary extreme risk protection order (ERPO). The petitioner must establish by a preponderance of the evidence that a person poses a significant risk to self or others by having a firearm in her or her custody or control or by possessing, purchasing, or receiving a firearm. The petitioner must submit an affidavit signed under oath and penalty of perjury that sets forth facts to support the issuance of a temporary ERPO and a reasonable basis for believing they exist. The court must hold a temporary ERPO hearing in person or by telephone on the day the petition is filed or on the court day immediately following the day the petition is filed.

I am not arguing or debating this issue one way or another. However, I would like to hear what you think should be done so we can proactively separate those that are mentally ill or unstable from their guns.

Here's an example. You are sitting out on the back porch visiting with a neighbor or your brother in law and he starts talking about how he has people trying to kill him. He is sure his wife has tried to poison him in his sleep because she has been having an affair with a made man from the mafia. He continues on to the point he even starts pointing about windows across the way and asking if you see the people watching them from the windows. He is so sure he is a target he even hired a couple of friends to work as his bodyguards. He is sitting there discussing all of this with a gun on his belt like it's real and when you mention you don't see anyone surveillaning the two of you, he gets defensive and start accusing you of being a plant that is trying to get to him. This fella has several guns he owns and has never shown these delusional schizophrenic tendencies before. He also has never been adjudicated mentally ill.

What do you do to help him get help and to ensure he doesn't kill anyone including his wife he thinks is trying to kill him and his baby that he has decided is from the affair with the mobster? What about when he tells you had have to defend his 2nd Amendment Rights should you try to separate him from his guns? Are we to wait until after he kills someone or shoots some place up thinking he is shielding mobsters?

This may or may not be a hypothetical situation. What remedies do citizens have in order to act fast enough before something really bad happens?