philbo wrote: ↑Sat May 26, 2018 8:12 amReading 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.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.
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.