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Title: Unconstitutional and Tyrannical Red Flag Gun Confiscation Laws Are Coming FAST
Source: The Organic Prepper
URL Source: https://www.theorganicprepper.com/red-flag-gun-confiscation-laws/
Published: Aug 8, 2019
Author: Adam Palmer
Post Date: 2019-08-09 08:44:59 by Deckard
Keywords: None
Views: 54
Comments: 4

Within minutes of the tragic mass shootings in El Paso and Dayton, gun control fanatics were predictably not letting a crisis go to waste by calling for extreme measures of gun control. The usual suspects were at it – Soros organizations, MSM, left-wing extremists, and Democratic Party members – but, interestingly enough, they were joined by many Republican lawmakers as well. While Lindsey Graham, a Senator who has scarcely seen a right in the Bill of Rights he hasn’t wanted to carve up for dinner, is no shocker, others in staunchly red states have also joined the call for stricter gun control measures. Most surprising, however, is that President Donald Trump has jumped on the bandwagon, calling for “red flag laws” among other egregious measures to deal with the recent spate of shootings in the United States.

The response from Trump’s base has been a mix of personality cult support and virulent opposition, hinting that Trump, if he goes forward with his “red flag” proposal, could be shooting himself in the foot for 2020. After the last few years, it is clear that nothing Trump could ever do would convince a leftist to vote for him. However, he can convince his own supporters to stay home in 2020 and that appears to be what is going to happen if he doesn’t quickly pull an about-face in the manner that he has done in the past in regards to many of his positive attempts to govern (Syria, Afghanistan, etc.).

So what is the problem with Red Flag laws?

For those that may not be aware, “Red Flag” Laws are allegedly devised to disarm individuals who may be at high risk to commit violent acts before they are able to do so. These “red flags” can be thrown up by law enforcement, mental, and medical professionals regarding a person’s mental state and/or capacity to do harm. In some cases, family members and others can also trigger the gun confiscation order. A number of states in the US already have such laws, Maryland being the most memorable example.

In an article entitled “Maryland’s ‘Red Flag’ Law Turns Deadly: Officer Kills Man Who Refused To Turn In Gun,” Kimberly Eiten writes,

A 61-year-old man is dead after he was shot by an officer trying to enforce Maryland’s new ‘red flag’ law in Ferndale Monday morning.

Anne Arundel County Police confirmed the police-involved shooting happened in the 100 block of Linwood Avenue around 5:17 a.m.

. . . . .

According to police, two officers serving a new Extreme Risk Protective Order (Red Flag Law), a Maryland protective order to remove guns from a household, shot and killed the man listed on that order.

“Under the law, family, police, mental health professionals can all ask for the protective orders to remove weapons,” said Sgt. Jacklyn David, with Anne Arundel County Police.

That man was identified as Gary J. Willis of same address.

Officials said Willis answered the door while holding a handgun.

Willis then placed the gun next to the door.

When officers began to serve him the order, Willis became irate and grabbed his gun.

One of the officers tried to take the gun from Willis, but instead Willis fired the gun.

The second officer fired a gun, striking Willis. He died at the scene.

In other words, gun confiscation has already begun but it has begun incrementally and not as a mass sweeping door to door operation. Selco wrote from his experience about how gun confiscation might go down and it appears he was right. Gary J. Willis was executed for not willingly allowing his basic rights to be violated. Guess we could have skipped the trouble of that whole Revolutionary War thing, right?

Red Flag laws trample all over our Constitutional rights.

If it sounds to you like Red Flag laws are actually the imposition of “pre-crime” policies, you’re right. If they sound unconstitutional to you, you’re also right. Red Flag laws violate at least three Amendments to the US Constitution – the First, Second, and Fourth.

It’s important to note that some county sheriffs are refusing to enforce Red Flag gun laws and others are forming 2nd Amendment sanctuaries, but these are too few and far between to stop this altogether. The violation of the 2nd Amendment is the most obvious since forcibly disarming an American citizen through a matter of law who has committed no crime is a clear infringement on the Second Amendment. In fact, so is the idea that “mentally ill people should not have access to weapons.” The fact is that mentally ill people still have rights in this country but more on that later.

The Fourth Amendment is violated because American citizens are essentially tried, convicted, and disarmed without due process and the First is violated because the alleged “crime” or “red flag” is not an actual crime but speech and/or expression (in many cases it is merely the feeling of a threat by the person throwing up the red flag) both of which are expressly protected by the First Amendment.

But Trump went even further in his speech responding to the recent shootings, stating that the US should have stronger laws regarding “involuntary confinement” and that the Federal and State governments would be working with social media companies to detect individuals who are threats before they are able to do any damage. In other words, the Government will be working with (supposedly) private social media companies to determine individuals who should be forcibly disarmed as a result of their speech and expression online.

Mental health and psychiatry are being weaponized.

And as for involuntary confinement, the US already allows for “mental health professionals” to involuntarily confine people for the slightest statements, violating their rights and, more often than not, ruining their lives with forced medication and victimization. The fact that mental and medical professionals have as much authority as they do should be considered abhorrent in a free society.

Indeed, the truth is that, while no one wants a severely mentally ill person walking around with a gun, mentally ill people still have rights. And if they have not committed a crime, they have the same rights as everyone else.

And thus we arrive at the second frightening aspect of Red Flag laws – the further weaponization of mental health and psychiatry. This is precisely the methods used by the Soviet Union when critics of the government were deemed mentally ill and forced into “treatment” where they remained or where “re-educated/medicated” into conformity.

But abuse of psychiatry and the mental health/law enforcement meld is by no means unique to the Soviet Union. The mechanisms are already in place in the United States and have been for some time. Indeed, every day in the United States countless people are forcibly hospitalized having committed no crime whatsoever.

In her article, “The Crime Of Thinking Different,” Wendy McElroy wrote in September 2014,

The term “psychopathological mechanisms” of dissent describes the political abuse of psychiatry in the former Soviet Union and other totalitarian regimes. Non-approved beliefs, attitudes or behavior are classified as mental problems, which converts them into a medical diagnosis that can be handled in an extra-legal manner. Dissenters or ‘the different’ can be detained indefinitely in mental hospitals where they are drugged or otherwise ‘cured’ into conformity.

. . . . .

If accurate, a news story out of Cambridge, Maryland, in late August indicates “psychopathological mechanisms” is in full swing within the US. On August 22, a 23-year-old middle school teacher named Patrick McLaw was placed on administrative leave and taken into custody by police to be psychologically evaluated.

Why? The first reports stated, “Members of the Dorchester Sheriff’s Office, the Cambridge Police Department and…County Public School board have removed…McLaw for allegedly penning two books under the alias, ‘Dr. K.S. Voltaer’.” A police investigation is underway. [Note: the word “alias” connotes crime; “pen name” is the appropriate term for anonymous authorship.]

One novel, The Insurrectionist (2011), is set 888 years in the future and revolves around a school shooting. The Amazon blurb explains, “On 18 March 2902, a massacre transpired on the campus of Ocean Park High School…the largest school massacre in the nation’s history. And the entire country now begins to ask two daunting questions: How? and Why?…It becomes evident that the hysteria is far from over.” (The second novel, Lillith’s Heir, is a sequel.) The Amazon description is correct. The hysteria was just beginning.

The police searched McLaw’s home for weapons; none were found. They searched the school with dogs for bombs and guns; none were found. McLaw apparently does not have a criminal record. According to a local paper, The Star Democrat (April 23), he was nominated last April for Dorchester County’s “Teacher of the Year” award but lost out. Nevertheless, on September 1, Sheriff James Phillips stated that the teacher-novelist “is no longer in the area. He is currently at a location known to law enforcement and does not currently have the ability to travel anywhere.”

After a blitz of media coverage raised constitutional issues, the story offered by authorities changed. The novels became only “pieces of the puzzle” of their investigation. The State Attorney for Wicomico County Matt Maciarello now claims that McLaw drew police attention due to “a four-page letter to officials in Dorchester County.” The 4-pages were apparently a letter of resignation. In a highly unusual and prejudicial move, personal details from the letter were leaked although the authorities will not produce the document itself for independent verification. They will merely leak what is to their advantage.

Bottom line: No arrest was made, no charges were laid, no warrant has been issued and there has been no public accusation that McLaw threatened anyone. He is being held for psychiatric evaluation based merely on the fact that the police are investigating him for what or what may not be a crime.

The prevalence of “psychopathological mechanisms” is a touchstone of totalitarianism and a measure of how far a society or situation has distanced itself from liberty. Through American history, the distance from liberty has been an ebb and flow.

. . . . .

From its inception as colonies, the United States has included the political abuse of those who are seen as psychologically deviant. Between early 1692-1693, at least twenty people died because they were accused of violating the orthodox beliefs of authorities; they were called witches which may be as close to a psychiatric diagnosis as that period offers.

The most totalitarian situation or institution America has known was slavery; only the current prison system compares. During this period, the abuse of psychiatry revealed a second purpose; it not only provides social control but also justifies savagery in the eyes of those who commit it.

Consider the psychiatric term “drapetomania.” It refers to a mental illness defined in 1851 by a respected American doctor named Samuel A. Cartwright in order to explain why slaves ran away. His essay Diseases and Peculiarities of the Negro Race stated that fleeing slavery “is as much a disease of the mind as any other species of mental alienation, and much more curable, as a general rule.” The recommended cure was “whipping the devil out of” slaves as a preventative measure against those who display signs of this impending mental illness.

In his 2010 book The Protest Psychosis: How Schizophrenia Became a Black Disease, psychiatrist Jonathan Metzl explored the 1960 history of the Ionia State Hospital for the Criminally Insane (Michigan), which is now a state prison. The hospital was notorious for diagnosing blacks who advocated civil rights with schizophrenia and confining them for treatment. Treatments could become de facto lifelong sentences without legal recourse. Along with many other state asylums, the hospital was justly closed down during what is called “an era of deinstitutionalization” in the 1970s which came as a result of outrage over the brutal use of psychiatry as social control.

Such use has been gradually increasing. Metzl ascribes much of the increase to successive changes in the Diagnostic and Statistical Manual of Mental Disorders (DSM) which is published by the American Psychiatric Association. First published in 1952, it is considered to be the definitive guide to mental illness but its definition of mental illness has altered significantly through five editions. A few alterations are praiseworthy, such as the removal of homosexuality as a mental disease. Most of them are dangerous invitations for abuse. For example, the second edition added “hostility” and non-violent “aggression” as symptoms of a mental disorder. The latest edition defines Oppositional Defiant Disorder (ODD). To be diagnosed with ODD, a person must display four manifestations from the following three behaviors for more than 6 months: an angry mood, argumentative behavior, or vindictiveness. The definition is so sweeping and vague that anyone who has a sustained reason to argue with authority could be diagnosed with ODD.

It has become common for courts to order a mental evaluation of those in custody or in family court, whether or not the ‘crime’ is violent. A prominent example is the whistleblower Bradley or Chelsea Manning. In many cases, they provide a legal justification for stripping people of legal rights and credibility. In other cases, authorities simply wish to punish a dissenter and discourage others from acting similarly. An October 9, 2010 headline in Raw Story read, “Cop hauled off to psych ward after alleging fake crime stats.”

NYPD officer Adrian Schoolcraft accused his supervisors of faking crime statistics and ticket quotas to make them look better. He backed up the accusations with documents and hundreds of hours of recorded tape which he supplied to the Associated Press. As a result of his alleged “hostile” behavior, he was taken in handcuffs to a hospital for evaluation.

Red Flag laws are a slippery slope to more tyranny.

For those that believe Red Flag laws are “reasonable,” it is important to know that, once given power, those who receive it never give it back. Even more so, they use the power they have gained to eliminate any opposition to their rule. If Red Flag laws are put in place today, the “red flags” may be threatening language. Tomorrow, they may be racism. Next week, they may be political disagreements. In a month, they may be any arguments at all. Next month, who knows? The goalposts are always moving. We have already seen how the definition of racism, homophobia, transphobia, unpatriotic, and violence have been broadened to such a nonsensical degree. But, in a system of tyranny, the definition of dissent is always changing.

For those who still don’t think these laws are a grounds for grave concern, you should remember that the people who are reporting your posts and pages on Facebook today will be the same people reporting you to the police tomorrow.

What do you think?

Do you think Red Flag laws will be implemented in more states? Do you think they are necessary for public safety or tyrannical and unconstitutional? Please share your thoughts in the comments.

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#1. To: Deckard (#0)

Unconstitutional and Tyrannical Red Flag Gun Confiscation Laws Are Coming FAST

Until a proposed bill is written and submitted to congress, there is no proposed legislation upon which to judge constitutionality.

The Fourth Amendment is violated because American citizens are essentially tried, convicted, and disarmed without due process and the First is violated because the alleged “crime” or “red flag” is not an actual crime but speech and/or expression (in many cases it is merely the feeling of a threat by the person throwing up the red flag) both of which are expressly protected by the First Amendment.

There is no bill that proposes American citizens be tried, convicted, and disarmed in the absence of due process.

A Red Flag hearing is an ADMINISTRATIVE proceeding, not a criminal proceeding. Due process pertaining to criminal proceedings or trials is not applicable.


Administrative Proceedings: A Fair Hearing.

With respect to action taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before the final order becomes effective.[449] In Bowles v. Willingham,[450] the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying “where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires.” But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings.[451] Although a taxpayer must be afforded a fair opportunity for a hearing in connection with the collection of taxes,[452] collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter.[453]

When the Constitution requires a hearing, it requires a fair one, held before a tribunal that meets currently prevailing standards of impartiality.[454] A party must be given an opportunity not only to present evidence, but also to know the claims of the opposing party and to meet them. Those who are brought into contest with the government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the government proposes and to be heard upon the proposal before the final command is issued.[455] But a variance between the charges and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint.[456] The mere admission of evidence that would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.[457] A provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. Hearsay may be received in an administrative hearing and may constitute by itself substantial evidence in support of an agency determination, provided that there are present factors which assure the underlying reliability and probative value of the evidence and, at least in the case at hand, where the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them with regard to the evidence.[458] Although the Court has recognized that in some circumstances a “fair hearing” implies a right to oral argument,[459] it has refused to lay down a general rule that would cover all cases.[460]

In the light of the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command, and applicable Navy regulations that confirm this authority, together with a stipulation in the contract between a restaurant concessionaire and the Naval Gun Factory forbidding employment on the premises of any person not meeting security requirements, due process was not denied by the summary exclusion on security grounds of the concessionaire’s cook, without hearing or advice as to the basis for the exclusion. The Fifth Amendment does not require a trial-type hearing in every conceivable case of governmental impairment of private interest.[461] Because the Civil Rights Commission acts solely as an investigative and fact-finding agency and makes no adjudications, the Court, in Hannah v. Larche,[462] upheld supplementary rules of procedure adopted by the Commission, independently of statutory authorization, under which state electoral officials and others accused of discrimination and summoned to appear at its hearings, are not apprised of the identity of their accusers, and witnesses, including the former, are not accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings. Such procedural rights, the Court maintained, have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations in no way determining private rights.


[449] Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941). [Back to text]

[450] 321 U.S. 503, 521 (1944). [Back to text]

[451] Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). [Back to text]

[452] Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259 U.S. 557 (1922). [Back to text]

[453] Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer v. United States, 102 U.S. 586, 593 (1881); Passavant v. United States, 148 U.S. 214 (1893). The collection of taxes is, however, very nearly a wholly unique area. See Perez v. Ledesma, 401 U.S. 82, 127 n.17 (1971) (Justice Brennan concurring in part and dissenting in part). On the limitations on private prejudgment collection, see Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

[454] Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). But see Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (Justice Powell), 196–99 (Justice White) (1974) (hearing before probably partial officer at pretermination stage).

[455] Margan v. United States, 304 U.S. 1, 18–19 (1938). The Court has experienced some difficulty with application of this principle to administrative hearings and subsequent review in selective service cases. Compare Gonzales v. United States, 348 U.S. 407 (1955) (conscientious objector contesting his classification before appeals board must be furnished copy of recommendation submitted by Department of Justice; only by being appraised of the arguments and conclusions upon which recommendations were based would he be enabled to present his case effectively), with United States v. Nugent, 346 U.S. 1 (1953) (in auxiliary hearing that culminated in a Justice Department report and recommendation, it is sufficient that registrant be provided with resume of adverse evidence in FBI report because the “imperative needs of mobilization and national vigilance” mandate a minimum of “litigious interruption”), and Gonzales v. United States, 364 U.S. 59 (1960) (five-to-four decision finding no due process violation when petitioner (1) at departmental proceedings was not permitted to rebut statements attributed to him by his local board, because the statements were in his file and he had opportunity to rebut both before hearing officer and appeal board, nor (2) at trial was denied access to hearing officer’s notes and report, because he failed to show any need and did have Department recommendations).

[456] NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938).

[457] Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924).

[458] Richardson v. Perales, 402 U.S. 389 (1971).

[459] Londoner v. Denver, 210 U.S. 373 (1908).

[460] FCC v. WJR, 337 U.S. 265, 274–77 (1949). See also Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946), 5 U.S.C §§ 1001–1011. Cf. Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), in which the majority rejected Justice Black’s dissenting thesis that the dismissal with prejudice of a damage suit without notice to the client and grounded upon the dilatory tactics of his attorney, and the latter’s failure to appear at a pre-trial conference, amounted to a taking of property without due process of law.

[461] Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961). Four dissenters, Justices Brennan, Black, Douglas, and Chief Justice Warren, emphasized the inconsistency between the Court’s acknowledgment that the cook had a right not to have her entry badge taken away for arbitrary reasons, and its rejection of her right to be told in detail the reasons for such action. The case has subsequently been cited as involving an “extraordinary situation.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Goldberg v. Kelly, 397 U.S. 254, 264 n.10 (1970). Manifesting a disposition to adjudicate on non-constitutional grounds dismissals of employees under the Federal Loyalty Program, the Court, in Peters v. Hobby, 349 U.S. 331 (1955), invalidated, as in excess of its delegated authority, a finding of reasonable doubt as to the loyalty of the petitioner by a Loyalty Review Board which, on its own initiative, reopened his case after he had twice been cleared by his Agency Loyalty Board, and arrived at its conclusion on the basis of adverse information not offered under oath and supplied by informants, not all of whom were known to the Review Board and none of whom was disclosed to petitioner for cross-examination by him. The Board was found not to possess any power to review on its own initiative. Concurring, Justices Douglas and Black condemned as irreconcilable with due process and fair play the use of faceless informers whom the petitioner is unable to confront and cross-examine. In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis of statutory interpretation, there is an intimation that grave due process issues would be raised by the application to federal employees, not occupying sensitive positions, of a measure which authorized, in the interest of national security, summary suspensions and unreviewable dismissals of allegedly disloyal employees by agency heads. In Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), the Court nullified dismissals for security reasons by invoking an established rule of administrative law to the effect that an administrator must comply with procedures outlined in applicable agency regulations, notwithstanding that such regulations conform to more rigorous substantive and procedural standards than are required by Congress or that the agency action is discretionary in nature. In both of the last cited decisions, dismissals of employees as security risks were set aside by reason of the failure of the employing agency to conform the dismissal to its established security regulations. See Accardi v. Shaughnessy, 347 U.S. 260 (1954). Again avoiding constitutional issues, the Court, in Greene v. McElroy, 360 U.S. 474 (1959), invalidated the security clearance procedure required of defense contractors by the Defense Department as being unauthorized either by law or presidential order. However, the Court suggested that it would condemn, on grounds of denial of due process, any enactment or Executive Order which sanctioned a comparable department security clearance program, under which a defense contractor’s employee could have his security clearance revoked without a hearing at which he had the right to confront and cross-examine witnesses. Justices Frankfurter, Harlan, and Whittaker concurred without passing on the validity of such procedure, if authorized. Justice Clark dissented. See also the dissenting opinions of Justices Douglas and Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. Zuckert, 371 U.S. 531, 533 (1963).

[462] 363 U.S. 420, 493, 499 (1960). Justices Douglas and Black dissented on the ground that when the Commission summons a person accused of violating a federal election law with a view to ascertaining whether the accusation may be sustained, it acts in lieu of a grand jury or a committing magistrate, and therefore should be obligated to afford witnesses the procedural protection herein denied. Congress subsequently amended the law to require that any person who is defamed, degraded, or incriminated by evidence or testimony presented to the Commission be afforded the opportunity to appear and be heard in executive session, with a reasonable number of additional witnesses requested by him, before the Commission can make public such evidence or testimony. Further, any such person, before the evidence or testimony is released, must be afforded an opportunity to appear publicly to state his side and to file verified statements with the Commission which it must release with any report or other document containing defaming, degrading, or incriminating evidence or testimony. Pub. L. 91–521, § 4, 84 Stat. 1357 (1970), 42 U.S.C. § 1975a(e). Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969).

Black's Law Dictionary, 6th Ed.

Procedural due process.

The guarantee of procedural fairness which flows from both the Fifth and Fourteenth Amendments due process clauses of the Constitution. For the guarantees of procedural due process to apply, it must first be shown that a deprivation of a significant life, liberty, or property interest has occurred. This is necessary to bring the Due Process Clause into play.

Minimal procedural due process is that parties whose rights are to be affected are entitled to be heard and, in order that they may enjoy that right, they must be notified. Fuentes v. Shevin, 407 U.S. 67, 79, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556. Procedures which due pro­cess requires beyond that minimum must be determined by a balancing analysis based on the specific factual context. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.

- - - - - - - - - -

Due process of law.

Law in its regular course of administration through courts of justice. Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. A course of legal proceedings accord­ing to those rules and principles which have been estab­lished in our systems of jurisprudence for the enforce­ment and protection of private rights. To give such proceedings any validity, there must be a tribunal com­petent by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Pennoyer v. Neff, 95 U.S. 733, 24 L.Ed. 565. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or oth­erwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.

An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before a court having power to hear and determine the case. Kazubowski v. Kazubowski, 45 I11.2d 405, 259 N.E.2d 282, 290. Phrase means that no person shall be de­prived of life, liberty, property or of any right granted him by statute, unless matter involved first shall have been adjudicated against him upon trial conducted ac­cording to established rules regulating judicial proceed­ings, and it forbids condemnation without a hearing. Pettit v. Penn, La.App., 180 So.2d 66, 69. The concept of "due process of law” as it is embodied in Fifth Amend­ment demands that a law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a reasonable and substantial relation to the object being sought. U. S. v. Smith, D.C.Iowa, 249 F.Supp. 515, 516. Fundamental requisite of "due pro­cess” is the opportunity to be heard, to be aware that a matter is pending, to make an informed choice whether to acquiesce or contest, and to assert before the appro­priate decision-making body the reasons for such choice. Trinity Episcopal Corp. v. Romney, D.C.N.Y., 387 F.Supp. 1044, 1084. Aside from all else, "due process” means fundamental fairness and substantial justice. Vaughan v. State, 3 Tenn.Crim.App. 54, 456 S.W. 2d 879.

Embodied in the due process concept are the basic rights of a defendant in criminal proceedings and the requisites for a fair trial. These rights and require­ments have been expanded by Supreme Court decisions and include, timely notice of a hearing or trial which informs the accused of the charges against him or her; the opportunity to confront accusers and to present evidence on one’s own behalf before an impartial jury or judge; the presumption of innocence under which guilt must be proven by legally obtained evidence and the verdict must be supported by the evidence presented; the right of an accused to be warned of constitutional rights at the earliest stage of the criminal process; protection against self-incrimination; assistance of coun­sel at every critical stage of the criminal process; and the guarantee that an individual will not be tried more than once for the same offense (double jeopardy).

When officers began to serve him the order, Willis became irate and grabbed his gun.

One of the officers tried to take the gun from Willis, but instead Willis fired the gun.

The second officer fired a gun, striking Willis. He died at the scene.

Death by stupidity. Dum gobshite pulls gun on armed cops, discharges gun, dies from gunshot wounds.

nolu chan  posted on  2019-08-09   11:48:52 ET  Reply   Trace   Private Reply  

#2. To: nolu chan (#1)

A Red Flag hearing is an ADMINISTRATIVE proceeding, not a criminal proceeding. Due process pertaining to criminal proceedings or trials is not applicable.

When the Constitution requires a hearing, it requires a fair one, held before a tribunal that meets currently prevailing standards of impartiality.

Hearsay may be received in an administrative hearing and may constitute by itself substantial evidence in support of an agency determination

A couple of questions...

Is the gun owner present at the administrative proceeding?

Who determines impartiality? Who sits on the "tribunal"?

If hearsay may be received, what's to stop an angry ex-wife or political opponent from having the gun owner served?

Was Willis notified of any impending action against him? More importantly, will any gun owner even know if the sheriff/swat is on the way to their home?

watchman  posted on  2019-08-09   16:12:53 ET  Reply   Trace   Private Reply  

#3. To: watchman (#2)

Is the gun owner present at the administrative proceeding?

The gun owner has the option to appear at both a Temporary Extreme Risk
Protective Order Hearing and a Final Extreme Risk Protective Order Hearing. If he
chooses not to appear, the hearing goes on without him. His attendance is not
mandatory, but he must be given notification and an opportunity to be heard.

Who determines impartiality?

The sitting district court Commissioner, absent a legal challenge by the gun owner.

Who sits on the "tribunal"?

It is a hearing, not a tribunal. There are no criminal or civil charges involved.

The district court Commissioner presides. There is no jury or panel.

The district court commissioners are appointed by the Chief Judge of the District
Court and:

Commissioners have three primary responsibilities:

  • Reviewing Applications for Statement of Charges to
    determine whether probable cause exists to issue
    charging documents;

  • Conducting initial appearance hearings on
    arrested individuals to decide the conditions of pre-trial release;

  • Determining eligibility of applicants for Office of the Public Defender services.

- - - - - - - - - -

If hearsay may be received, what's to stop an angry ex-wife or political opponent from having the gun owner served?

Nothing. Getting served is only getting notified that a complaint has been made. It
would indicate that the commissioner found probable cause to hold a hearing.

Maryland law at Section 5-604 provides, "After a hearing on a petition,
whether ex parte or otherwise, a judge may enter a temporary extreme risk
protective order
to prohibit the respondent from possessing a firearm if the
judge finds that there are reasonable grounds to believe that the respondent poses
an immediate and present danger of causing personal injury to the respondent, the
petitioner, or another by possessing a firearm."

Seizing the gun first and holding the hearing later would seem to be
constitutionally questionable, and not authorized by the Maryland law. Whether a
law is constitutional or not is for a court to decide. Pulling a gun on cops serving a
notification serves no purpose other than to get oneself dead.

Was Willis notified of any impending action against him?

The process of notifying Willis was in progress when he shot first and didn't get to
ask questions later. There was no impending action against Willis. There
was an impending hearing to determine if there was cause to take any action.

More importantly, will any gun owner even know if the sheriff/swat is
on the way to their home?

SWAT does not send advance notification that they are coming, for obvious

The applicable Public Safety Code appears at section 5-601 thru 5-610.

Links to all sections are:

5-601 / 5-602 / 5-603 / 5-604 / 5-605

5-606 / 5-607 / 5-608 / 5-609 / 5-610 /

The sections most relevant to your questions appear to be 5-603 and 5-604 which I quote below.


(a) (1) When a petition is filed with a District Court commissioner
under § 5–602(b)(2) of this subtitle, the commissioner may enter an interim
extreme risk protective order to prohibit the respondent from possessing a
firearm if the commissioner finds that there are reasonable grounds to believe
that the respondent poses an immediate and present danger of causing
personal injury to the respondent, the petitioner, or another by possessing a

(2) In determining whether to enter an interim extreme risk protective order
under this section, the commissioner shall consider:

(i) all relevant evidence presented by the petitioner; and

(ii) the amount of time that has elapsed since any of the events described
in the petition.

(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

(4) If, based on the petition, the commissioner finds probable cause to
believe that the respondent meets the requirements for emergency evaluation
under Title 10, Subtitle 6 of the Health – General Article, the commissioner
shall refer the respondent to law enforcement for a determination of whether
the respondent should be taken for an emergency evaluation.

(b) (1) (i) An interim extreme risk protective order shall state the date,
time, and location for a temporary extreme risk protective order hearing and
a tentative date, time, and location for a final extreme risk protective order

(ii) Except as provided in subsection (e) of this section, or unless the
judge continues the hearing for good cause, a temporary extreme risk
protective order hearing shall be held on the first or second day on which a
District Court judge is sitting after issuance of the interim extreme risk
protective order.

(2) An interim extreme risk protective order shall include in at least 10
point bold type:

(i) notice to the respondent that:

1. the respondent must give the court written notice of each change
of address;

2. if the respondent fails to appear at the temporary extreme risk
protective order hearing or any later hearing, the respondent may be served
with any orders or notices in the case by first–class mail at the respondent’s
last known address;

3. the date, time, and location of the final extreme risk protective
order hearing is tentative only and subject to change;

4. if the respondent does not attend the temporary extreme risk
protective order hearing, the respondent may call the Office of the District
Court Clerk at the number provided in the order to find out the actual date,
time, and location of any final extreme risk protective order hearing; and

5. if the respondent fails to appear at the final extreme risk
protective order hearing, a final extreme risk protective order may be entered
in the respondent’s absence and served on the respondent by first–class mail;

(ii) a statement that the respondent may consult an attorney
regarding any matter related to the order, and that an attorney should be
contacted promptly so that the attorney may assist the respondent;

(iii) a statement specifying the contents and duration of a temporary
extreme risk protective order;

(iv) notice to the petitioner and respondent that, at the hearing, a
judge may issue a temporary extreme risk protective order prohibiting the
respondent from possessing a firearm or may deny the petition, whether or
not the respondent is in court;

(v) notice of:

1. the requirements for surrendering firearms and ammunition in
the respondent’s possession to law enforcement authorities; and

2. the process for reclaiming firearms and ammunition on the
expiration or termination of the order;

(vi) 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; and

(vii) the phone number of the Office of the District Court Clerk.

(c) Whenever a commissioner issues an interim extreme risk protective order,
the commissioner shall:

(1) immediately forward a copy of the petition and interim extreme risk
protective order to the appropriate law enforcement agency for service on the
respondent; and

(2) before the hearing scheduled for the temporary extreme risk protective
order, transfer the case file to the clerk of court.

(d) A law enforcement officer shall:

(1) immediately on receipt of an interim extreme risk protective order, serve
it on the respondent named in the order;

(2) make a return of service to the clerk of court; and

(3) within 2 hours after service of the order on the respondent,
electronically notify the Department of Public Safety and Correctional Services of
the service using an electronic system approved and provided by the Department
of Public Safety and Correctional Services.

(e) (1) Except as provided in paragraph (2) of this subsection, an interim
extreme risk protective order shall be effective until the earlier of:

(i) the temporary extreme risk protective order hearing under § 5–604 of
this subtitle; or

(ii) the end of the second business day the Office of the District Court
Clerk is open following the issuance of the interim extreme risk protective order.

(2) If the court is closed on the day on which the interim extreme risk
protective order is due to expire, the interim extreme risk protective order shall be
effective until the next day on which the court is open, at which time the court
shall hold a temporary extreme risk protective order hearing.


(a) (1) After a hearing on a petition, whether ex parte or otherwise, a
judge may enter a temporary extreme risk protective order
to prohibit the
respondent from possessing a firearm if the judge finds that there are reasonable
grounds to believe that the respondent poses an immediate and present danger of
causing personal injury to the respondent, the petitioner, or another by possessing
a firearm.


nolu chan  posted on  2019-08-09   21:22:43 ET  Reply   Trace   Private Reply  

#4. To: nolu chan (#3)

Thank you for your reply...very concise.

I'd like to say it eases my mind somewhat, but, I live in a blue state.

watchman  posted on  2019-08-09   23:23:02 ET  Reply   Trace   Private Reply  

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