Friday, March 9, 2018

Rick Ector: Extreme Loss of Due Process Awaits Subjects of Proposed Law Unless It Is Fixed

Rick Ector: Extreme Loss of Due Process Awaits Subjects of Proposed Law Unless It Is Fixed

The biggest issue that I had previously discussed, in other articles about Extreme Risk Protection Orders, is the absence of Due Process protections. I believe that this proposed law (HB 4706) makes it too easy for unfairly accused citizens to be unjustifiably deprived of their right to own, possess, and carry a firearm.
Secret court proceedings in which citizens can be deprived of their Constitutional rights without notice or a hearing is what happens under dictatorships in the Third World. It has no place in America, especially in the state of Michigan. In this brief article I wanted to focus on the consequences of being subjected to an Extreme Risk Protection Order, if it became law.
If we assumed that Michigan State Rep. Robert Wittenberg had the best of intentions when he appeared on the "Let It Rip" TV show on Fox 2 Detroit a couple of weeks ago to discuss his bill, a quick reading of his 12 page monstrosity would prove otherwise. The provisions in his proposed law read like the musings and wishes of a local gun control group founder.
Despite the over-reaching provisions of Wittenberg's bill as originally submitted, it can be fixed if he wants to truly focus on helping people who genuinely need it instead of trying to take everybody's firearm in a massive gun grab.
Key Issues Need to be Addressed
To begin, under Wittenberg's proposed legislation, a court may issue an Extreme Risk Protection Order without written or oral notice to a proposed restrainee if the court determines that irreparable injury may result from a delay.
There is no place for secret court proceedings in America. Every citizen is entitled to his day in court to defend himself against any and all charges, especially those that could result in the loss of a Constitutionally recognized right. Due Process must be afforded to any person accused of a crime or of any behavior that suggests that he should be deprived of a right because he is a threat to himself or other people.
Moreover, the accused is entitled to legal representation. If he can't afford an attorney, one skilled and experienced in the field of firearm law shall be provided by the Court. If allegations do not result in the issuance of an Extreme Risk Protection Order, the person whose testimony initiated this court proceeding will be responsible for the defendant's legal fees, court costs, personal expenses incidental to his defense, and lost wages, if any.
Furthermore, if it is determined that a person who initiated an Extreme Risk Protection Order claim against another person contains any false, erroneous, misleading, exaggerated, or unsubstantiated information or allegations, he shall be guilty of a felony with a mandatory five year sentence in prison and a $25,000 fine.
Further still, if it is determined that if any person provides testimony in an Extreme Risk Protection Order case proceeding that contains any false, erroneous, misleading, exaggerated, or unsubstantiated information or allegations, he shall be guilty of a felony with a mandatory five year sentence in prison and a $25,000 fine.
The following list of characteristics do not automatically constitute behavior indicative of a threat: unorthodox or unpopular political views and practices, anti-social behavior, owning a "large" number of firearms, being a loner, odd religious beliefs or practices, or having any belief that is not considered mainstream, manner of dress, piercings, tattoos, and etc.
Consequences of an Extreme Risk Protection Order
The biggest consequence of being a "Restrained Person" is not being able to purchase or possess a firearm. Violators will be subject to an immediate arrest and the civil and criminal contempt powers of the court. Subjects may be ultimately punished by a term of imprisonment - not to exceed 93 days - a fine of $500, or both. This provision was lifted from Wittenberg's bill without alteration.
All firearms that are either owned by the restrained person or found to be in the possession of a restrained person, regardless of whether the restrained person actually owns them, will be seized. This provision in Wittenburg's bill should be modified to allow any person - with no firearm disabilities - designated by the restrained person to take possession of the firearms for safekeeping.
Seized firearms, owned by the restrained person, will be kept by law enforcement until either the order expires or the firearm's ownership has been transferred to a firearm dealer. In my view, no provision has been specified for the seized firearms to be transferred to a friend or family member able to lawfully possess the firearm. This provision should be modified to expand others who could take possession of a restrained person's firearms.
If a seized firearm from the possession of a restrained person belongs to another person, the owner of that firearm will need to present proof of ownership to the Court. If sufficient proof is given, the Court must return the firearm to the owner. This provision is too limiting. A true owner of a firearm need not go before a judge to retrieve his property. Sufficient proof of ownership should be sufficient to retrieve his firearm from the seizing agency. Acceptable examples that show proof of ownership should be listed in the proposed law.
The expiration date of an Extreme Risk Protection Order is up to one year in duration from the date of issuance. However, the court may decide to extend the Extreme Risk Protection Order, if it determines that the restrained person is still a threat to himself or another person. The restrained person shall be provided with legal representation who is skilled and experienced in firearm law.
One last issue that I feel is in need of alteration is the long laundry list of people who can initiate an Extreme Risk Protection Order is way too long. First, strike all law enforcement categories from that list. Second, delete any "intimate" partner and friend who has not had direct contact with the subject in the last year. Lastly, it can be trimmed even further by striking first cousins off the list.
Final Words
This writing was my first pass at cleaning up Wittenberg's proposed bill. I am cognizant that there may be people with guns who may be a threat to themselves and others. I do not believe that there are that many people in society who have guns and are a potential menace. In addition, there is no guarantee that it will be known if a so-called dangerous person actually owns a gun. In short, this bill may be worthless. However, I wanted to at least off up an alternative. I believe I can do better than that "mess" Wittenburg threw together.
However, for those isolated cases in which a known and genuinely troubled person is armed, an acceptable and tolerable bill could actually be a good thing if it focuses on bona fide threats instead of being an all-out gun grab.
I believe that more could be done to enhance public safety if we eliminated gun-free zones and allowed employees in our schools with CPLs to carry guns at work. Please give feedback.
About The Author
Rick Ector is a National Rifle Association credentialed Firearms Trainer, who provides Michigan CCW Class training in Detroit for students at his firearms school - Rick's Firearm Academy of Detroit.

Ector is a recognized expert in firearm safety and has been featured extensively in the national and local media: Associated Press, UPI, Fox news, New York Times, USA Today, Bearing Arms, NRAnews, Guns Digest, Tactical-Life, The Truth About Guns, The Politics Daily, Fox News Detroit, The Detroit News, The Detroit Examiner, WJLB, WGPR, and the UrbanShooterPodcast.

For more info about free shooting lessons for women and Michigan CCW Classes, please contact:

Rick's Firearm Academy of Detroit
Phone: 313.733.7404

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