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<![CDATA[red flag law]]>

New York AG appeals “red flag” rejections

August 28, 2023 by Cam Edwards Leave a Comment

The legal fights over Extreme Risk Protection Orders are starting to heat up on a couple of fronts. In Maryland, a new federal lawsuit is challenging the constitutionality of the state’s ERPO law, while the Second Amendment Foundation has launched its “Capture the Flag” initiative aimed at undoing “red flag” laws in other states, starting with California, Florida, Massachusetts, New Jersey and Washington.

“SAF has been concerned about these statutes since they first started showing up,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “We have already taken legal action against officials in Maryland for an egregious abuse of the law against a citizen in Dorchester County. But all of these laws should raise alarms because they prioritize citizen disarmament ahead of due process, and that can easily lead to deprivation of rights under color of law.”

While SAF is going on offense, New York Attorney General Letitia James is defending the state’s “red flag” law, appealing decisions from multiple judges who have determined the statute lacks due process protections and violates the Second Amendment rights of those subject to the law’s effects.

Judges have approved more than 6,400 orders since the law took effect four years ago.

But lawyers for people resisting those requests have challenged the law itself and — in some cases — found sympathetic judges: three declared it unconstitutional. Blocking firearms access without a doctor’s opinion violates gun rights and due process, they ruled.

State Attorney General Letitia James is appealing three of those decisions, hoping to tamp down further challenges with higher-court opinions that affirm the law’s validity. Her office filed its arguments in July in Appellate Division courts in Brooklyn and Rochester.

“The constitutional right to possess a firearm is limited to law-abiding and responsible persons, i.e., those who are not likely to engage in conduct that would result in serious harm to themselves or others,” wrote Sarah Coco, an assistant solicitor general in James’ office.

The problem with Coco’s argument is that the state’s red flag law can and has been deployed against people who haven’t been accused of a crime, much less convicted of one. And under New York’s ERPO law, a judge can make a finding that someone poses a threat to themselves or others without the mental health system ever getting involved; a step that Orange County Judge Craig Brown and others say abridges the rights of those subject to an ERPO petition.

Brown ruled that judges can’t decide someone is likely to cause serious harm — the justification for a red flag order — without a doctor or mental health expert saying so. An order prevents someone from buying or possessing a gun and requires them to turn over any firearms they have.

Without an expert’s mental-health determination, Brown concluded in April, the law “lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional Right to bear arms.”

Two other judges also found the law unconstitutional. Thomas Moran, a Supreme Court justice in Monroe County, did so in December in a case in which a man asked for an order against his estranged girlfriend. Like Brown, he decided a doctor’s opinion was needed before suspending gun rights and allowing police to enter a home and seize guns.

“A potentially mentally ill citizen should enjoy the (same) rights and privileges as any person of this state,” Moran ruled.

At least three other New York judges have taken the opposite view, dismissing any claims of constitutional violations.

One potentially disturbing development is that, so far anyway, none of the parties in the lawsuits that James is appealing have responded to the AG’s latest briefs. That could set up a situation similar to the Miller case back in the 1930s, when the Supreme Court upheld the National Firearms Act after the named defendant and his attorney in the case failed to appear in court to provide a defense or an argument to the contrary.

We’ve had several correct rulings at the trial court level in New York, but that doesn’t mean that we’ve yet found the right plaintiff to carry a challenge through to the state Supreme Court or SCOTUS. New York isn’t currently on the list of states initially targeted by the Second Amendment Foundation’s “Capture the Flag” initiative, but if the organization is looking for challengers in states like California, Maryland, Massachusetts, and New Jersey I hope they won’t turn away a potential plaintiff willing to go the distance in the Empire State as well. Otherwise, we could see a weak case result in awful precedent, and a bad law upheld because of inaction on the part of the defendants.

Filed Under: <![CDATA[Cam &amp; Co]]>, <![CDATA[extreme risk protection order]]>, <![CDATA[Gun Control]]>, <![CDATA[Letitia James]]>, <![CDATA[New York]]>, <![CDATA[red flag law]]>, <![CDATA[Video]]>, Bearing Arms, News

Can Tennessee’s governor pull a “red flag” rabbit out of his hat?

August 20, 2023 by Cam Edwards Leave a Comment

After months of behind-the-scenes lobbying, Gov. Bill Lee’s special session called in response to the Covenant School killings will kick off tomorrow. The governor’s list of approved topics precludes lawmakers from debating things like a ban on modern sporting rifles or raising the age to purchase or possess a firearm, gun control is still going to be at the center of debate outside the statehouse chambers. Second Amendment advocates and opponents are headed to Nashville to weigh in with their own demands, while the governor will be trying to twist arms and cobble together enough votes to adopt his version of a red flag law.

It would appear the governor has his work cut out for him, and many local media outlets are already adopting the position that the special session isn’t likely to lead to “meaningful reform”. With Democrats ticked off that their anti-gun agenda isn’t likely to receive a hearing and many Republicans equally as annoyed at the fact that the special session is taking place at all, Lee is looking like the biggest loser of the session before it’s even gaveled in.

Lee frequently met privately with lawmakers and occasionally told media he still had hopes for the proposal.

But at public appearances, he didn’t mention it. Even at a friendly Nashville Rotary event in June, where the opening prayer touched on gun violence, he sidestepped the issue in prepared remarks.

It’s a move that has baffled some advocates in the state, and some political observers, as Lee has now called back reluctant Republican lawmakers with little to show for his original goal, even as he continues to take criticism on his right flank from pugilistic gun rights groups decrying Lee’s supposed “gun control agenda,” despite Lee offering zero gun-specific administrative bills.

“If this is important, then you campaign on it. You talk about it. You go to the chambers of commerce, you go to the Rotary Clubs, you go to the Grand Divisions and talk to people about why this should happen,” said Daryl Carter, a political historian and associate dean at East Tennessee State University.

Vanderbilt University Poll co-director John Geer said Lee is working within the confines of Tennessee’s “realities,” that the General Assembly can wield tremendous power and even the Tennessee Republican Party executive committee was pushing back on a special session.

“To Lee’s credit, he’s called the special session,” Geer said. “It’s not as explicitly about gun reform as many in the state would like, but you have to give him credit for doing this because there’s a lot of opposition. I think he’s going to force some action; exactly what kind of bills come out isn’t clear.”

It doesn’t look like Lee’s in a position to force any action at all, though I suspect that many lawmakers who are part of the Republican supermajority would be willing to throw him a bone and pass legislation dealing with mental health and/or the criminal justice system so that the special session isn’t seen as a complete waste of time. And with dozens of bills expected to be quickly introduced and debated over the course of the session, there’s plenty of opportunity for legislative mischief to be played. As the Tennessee Firearms Association’s John Harris warned on a recent episode of Bearing Arms’ Cam & Co, until the session has been gaveled to a close gun owners are going to have to keep close watch over the legislature’s activities, and this is just a preview of a larger fight over the state’s gun laws that will play out in the regular session beginning next January.

Still, I doubt that Lee’s going to be able to pull a “red flag” rabbit out of his hat once the session gets underway, even though that was the original purpose of the session when he announced his plans in April. Many Republican legislators have been vocally opposed to the governor’s proposed “temporary mental health order of protection”, and Lee didn’t even include his proposal in the list of bills he included in his administrative package for the session; a clear sign that he doesn’t have the votes to approve the measure… at least not yet.

From a political perspective, Lee’s demand for a special session was a big mistake, but once he’d made the call he couldn’t back down even in the face of opposition from his own party without looking even weaker than he already does. Lee did at least try to do Republican lawmakers a favor by limiting the topics up for discussion during the session, but the narrative from Democrats and their allies in the media going forward is still going to be that the GOP supermajority cares more about protecting guns than school children.

As appealing as gaveling in and quickly gaveling out might be, Republican lawmakers instead need to put substantive proposals on the table that will address violent and dangerous individuals who pose a threat to the public without targeting lawful citizens exercising a fundamental civil right. It would have been better to do that during the course of a regular session, but unfortunately, Lee’s political miscalculation has taken that option off the table while giving the anti-gunners a platform to spout their vitriolic lies and false promises of safety.

Filed Under: <![CDATA[Bill Lee]]>, <![CDATA[Gun Control]]>, <![CDATA[red flag law]]>, <![CDATA[Special Session]]>, <![CDATA[temporary mental health order of protection]]>, <![CDATA[Tennessee]]>, <![CDATA[Video]]>, Bearing Arms, News

DC Project heading to Nashville for start of special session

August 18, 2023 by John Petrolino Leave a Comment

The other day, Cam had John Harris, the executive director of the Tennessee Firearms Association, on his show to discuss the upcoming special legislative session. Governor Bill Lee called for it in order to possibly have a so-called “red flag” bill ramrodded through. Earlier this year, I covered a poll that had results that showed support contrary to measures Lee supports. There’s no appetite for red flag laws to the informed voter, and these provisions are unconstitutional. The insistence that such a measure gets implemented in the Volunteer State has caused our friends from the DC Project to announce an upcoming press conference.

DC Project-Women for Gun Rights Press Conference on Special Session for Gun Control

NASHVILLE, Tenn. — DC Project-Women for Gun Rights will discuss the upcoming special session on gun control.  Hear from moms, a law enforcement professional, survivors of violence and experts in firearms safety on why they oppose the calls for more gun control. Several House Republican leaders will attend.

WHAT: Press Conference

WHEN: Monday, August 21, 2023, 12:30PM CST

WHERE: Cordell Hull State Office Building, 425 Rep. John Lewis Way N, Nashville TN. 37243, Ground Floor, G106

Please contact Dianna Muller

[email protected]  / www.dcproject.info

The DC Project is a nationwide organization of women committed to safeguarding the Second Amendment. A non-partisan initiative of daughters, mothers, and sisters that believe education is the key to firearm safety and violence prevention, not legislation.

The DC Project is doing some serious heavy lifting across the nation. I’d certainly be interested in sitting in on the conference and look forward to hopefully catching a rewind of it in possible future online videos. Perhaps the teal clad superheroes will be able instill the right amount of education into Governor Lee’s noggin, and show the legislators that supporting “gun control” measures is a poison pill.

Lee has adamantly stated that his past proposals were not red flag laws, but rather, a totally and completely different thing than red flag laws. Looking over those ideas, Lee wants a red flag law by any other name, with the same flavor of lack of due process tyranny, just the lite version.

Granted, the proposed law by Lee would be an improvement on many states’ existing unconstitutional measures, however, replacing an awful law with one that’s less awful is not on the table. What’s on the table is the devolution of civil liberties in a state that should continue to push for a strong support of the Second Amendment by welcoming the repeal of liberty infringing policies. Unlike laws in states like New Jersey, the Gestapo is not going to kick in your door in the middle of the night in a no-knock raid under Lee’s proposal, but it would still be classified as “goose stepping lite.”

The DC Project has always maintained that they believe in education over legislation, and that’s a very important thing on this topic. The one thing that stood out on the formerly mentioned poll is that an uninformed voter was more inclined to support a red flag law, however after being told what such a measure is or does, they’d drop that support.

Prior to an informed ballot, voters show initial support for Red Flag Laws, with 62% in favor of the measure, including 57% of Republicans. However, support rapidly drops by 21 points, a full 1/3, after voters are informed that such laws leave dangerous people in the community and violate due process rights, with 49% reporting being less likely to support the measure, including 1-in-3 Democrats.

Any members of the press that can pop in or supporters of the Second Amendment should turn up. These ladies don’t mince words and if Lee does not hear them loud and clear, that’s because he’s deaf. Go get ’em ladies!

Filed Under: <![CDATA[Bill Lee]]>, <![CDATA[D.C. Project]]>, <![CDATA[red flag law]]>, <![CDATA[Special Session]]>, <![CDATA[Tennessee]]>, <![CDATA[Video]]>, Bearing Arms, News

Has Tennessee’s governor given up on his version of a “red flag” law?

August 10, 2023 by Cam Edwards Leave a Comment

Tennessee Gov. Bill Lee officially announced on Wednesday that he’s bringing lawmakers back to Nashville for a special session on public safety later this month, but the slate of bills that he’s bringing to lawmakers is missing the one piece of legislation he’s been stumping for over the past few months; a “temporary mental health restraining order” that’s his version of a “red flag” law.

According to the Tennessean Lee’s proposing a number of measures for the special session kicking off on August 21st, and while his proclamation setting the parameters of the session allows for consideration of his idea, if a “red flag” bill is introduced it won’t be coming from his office.

Lee’s administrative package includes:

  • Codifying his executive order dealing with the Tennessee Bureau of Investigation and background checks. The proposal requires reporting of accurate, complete and timely records from court clerks to the TBI within 72-hours and requires electronic submissions of dispositions and expungements to the TBI.
  • A TennCare mental health coverage waiver to allow federal matching funds for Medicaid to cover mental health and substance abuse services;
  • Budget initiatives prioritizing hiring and retaining mental health professionals in the state;
  • Eliminating certain practice requirements for psychiatric nurse training to expand access to mental health treatment;
  • Greenlighting DNA collection at the time of arrest for felony crimes;
  • Directing TBI to report on the state of human trafficking in Tennessee;
  • Eliminating taxes on firearm safes and other safe storage initiatives.

…

Republican lawmakers have been vocally opposed to Lee’s spring proposal for an extreme risk protection order. It’s unclear if Lee will attempt to bring a similar proposal later this month amid continued pushback among his party and firearm-rights groups that encourage Lee to call off the special session altogether.

Lee first pitched his proposal in April, just a few weeks after the Covenant shooting as a direct response to the tragedy, saying “Tennesseans deserve a vote” on the policy, which would allow the courts to remove firearms from those considered a danger to themselves or others.

The governor committed repeatedly throughout the summer to push forward with the proposal, despite very little public support from members of his own party. Only seven lawmakers had publicly shared support for the bill. 

As recently as late July, Lee expressed hope that the bill would pass.

“You know, whenever you bring a piece of legislation, you certainly hope that it does,” Lee said. “But that’s up to the General Assembly.”

Gun owners aren’t out of the woods yet, but this is a very good sign that Lee’s version of a “red flag” law is going absolutely nowhere when lawmakers return to the capitol in a couple of weeks. If Lee believed he had the votes to pass his measure it most definitely would have been a part of his legislative wishlist, so its absence speaks volumes about the scope of the opposition he received from both lawmakers and constituents around the state.

Democrats, meanwhile, are blasting the scope of the special session since it looks like most of their anti-gun measures aren’t going to get a hearing.

House Minority Leader Karen Camper, D-Memphis, said she was disappointed with the exact scope of the special session. She said she was hoping for a “serious discussion about gun reform in Tennessee.”

“The number of firearms in our state is staggering and has been since we passed the open carry and guns in trunks laws.  But simply focusing on safe storage alone does not truly solve the problems we face in this state and that our constituents were begging us to debate after the Covenant school shooting in Nashville and the Prive restaurant shooting in Memphis this past March,” she said.

“The dangers that our families and schoolchildren face today frighten me, as they do most Tennesseans.”

House Democratic Caucus Chair John Ray Clemmons, D-Nashville, said the governor “wilted in the face of the legislative supermajority.”

“The winners here are special interests and extremist legislators holding our state hostage,” he said in a statement. “The clear losers are Tennessee families and school children. The ire of Tennessee families who want and deserve substantive action and policies to better protect our children and neighborhoods from the looming threat of gun violence should be squarely aimed at the GOP supermajority and its leadership in both houses.  They have utterly failed our families. Our children deserve better.”

Expect to hear a lot more of that once the special session gets underway, even if the Republican supermajority ends up taking substantial steps to improve access to mental health care and substance abuse treatment. Democrats were and are hoping to use the special session to go after guns and gun owners, and now that Lee has limited the scope of the session they’ll use those limitations to bash their colleagues for “inaction” no matter what actually ends up getting approved.

It was a political miscalculation for Lee to call for the special session in the first place, and the secrecy surrounding the specific legislation he was working on only added to the distrust and opposition from many conservative corners of the state. The governor’s decision to drop his version of a “red flag” law from his list of recommended legislation is the smartest political move he’s made in months, but he’s still given Democrats a high-profile platform to bash their colleagues across the aisle and promote the false idea that we can ban our way to safety by criminalizing our Second Amendment rights; a political misstep that could come back to bite him (and the GOP) in next year’s elections. Republicans can help squash that line of attack by offering up substantive improvements to the state’s mental health and criminal justice systems when they return to Nashville, but the special session is still an unforced error on the part of the governor.

Filed Under: <![CDATA[Bill Lee]]>, <![CDATA[Gun Control]]>, <![CDATA[red flag law]]>, <![CDATA[temporary mental health restraining order]]>, <![CDATA[Tennessee]]>, <![CDATA[Video]]>, Bearing Arms, News

Tennessee GOP committee warns governor on special session

August 7, 2023 by Cam Edwards Leave a Comment

If Tennessee Gov. Bill Lee was hoping to bring his fellow Republicans around on the idea of a special session to pass his version of a “red flag” law and other gun-related legislation before officially calling the session into being, his hopes were dashed this weekend when the state’s Republican Party Executive Committee adopted a resolution instead asking the governor to drop his plans altogether.

According to the Chattanooga Free Press, the resolution’s language was suggested by committee member Tina Bensiker, who says she’s concerned that many of the ideas that have been floated would violate the rights of Tennessee residents, while failing to take a bite out of violent crime.

“I feel at this point a lot of this is really emotion as opposed to rational and reasoned,” Benkiser added. “My concern, and a lot of others’ concerns, is that some of the proposals we’ve heard really violate due process of law. And that is a fundamental concern. And when you start talking about potentially infringing on people’s constitutional rights, that needs to be thought out over a long period of time with people who have thought, debated, looked at the language and fleshed all that out. Not something to be rushed through.”

Benkiser said she hopes Lee will take heed of the GOP action.

“I understand that people sometimes act out of emotion when something horrendous has happened, as happened here in Nashville, but really to friends of his. I understand that, and I think the natural reaction is to want to do something and to want to do something now. But like I said, when you’re talking about constitutional rights, at the end of the day, you need to take the time to think that out.”

Other committee members are concerned that the statehouse could turn into a circus once the special session gets underway, pointing to the protests on the floor of the state House earlier this year that resulted in the expulsion of two Democratic lawmakers. Those legislators recently won special elections in their heavily Democratic districts and are vowing to introduce a host of gun control measures during the special session, and some on the GOP Executive Committee believe the special session would once again inflame tensions and create a flashpoint for anti-gun activists to rally around.

Committee member John Stanbery of Cleveland told the Times Free Press that legislators had an opportunity to pass the order of protection bill when they were in regular session and chose not to.

“So I personally do not know why you would call them back to do something they’ve already rejected,” Stanbery said. “They rejected it by choosing not to do it. Secondly, I think it paints a target on all their backs. I think they’re going to come up here and have to walk a gantlet. And a lot of it will be out-of-state people. And so I think it puts an unreasonable strain not only on government but their safety and security.”

State GOP Chairman Scott Golden told two reporters following the meeting that his sense of executive committee members’ feelings is they’d prefer not to have the special session but be able to address firearms issues during their regular session that starts in January.

“We’ll send [the resolution] as soon as we get the final language and everything, we’ll send it to the governor and all the appropriate officials the sense of where the Republican Party” is, Golden said.

Asked what effect the resolution would have, Golden said he personally has no knowledge of where things stand with Lee. But he noted he had spoken with enough legislators to know they don’t feel comfortable with everything going on.

“So I think our members are very reflective, they talk to their legislators as well, and I think that was the sense of what the Tennessee Republican Party said today,” Golden said.

The governor himself, meanwhile, has been pretty tight-lipped about the particulars of the session, though he’s been holding closed-door meetings with various lawmakers as they strategize on a legislative to-do list. We’re now two weeks away from the supposed start date, and we’ve yet to see any official draft of the governor’s “temporary mental health restraining order” or other gun-related bills. If and when the session begins lawmakers are expected to work swiftly on an  untold number of bills, none of which the public has been able to peruse and comment on.

I don’t know if this resolution will have any effect on the governor’s decision, but the closer we get to August 21st without seeing the particulars of what lawmakers will be proposing, the more opposition we can expect on the ground in Tennessee. Gun owners across the state shouldn’t wait for Lee to make the official call either. Now’s the time to chat up your state representative or senator and demand they hold firm on protecting your Second Amendment rights. If the session does take place there might be some bills worth supporting, like the idea to build nine new state-run mental health facilities to help address the critical shortage of acute mental health care, but any attempt to address violent crime by criminalizing the rights of responsible gun owners should be rejected outright by the legislature’s Republican majority, and those lawmakers need to hear from their constituents now if gun owners are going to survive the session with their rights intact.

Filed Under: <![CDATA[Gun Control]]>, <![CDATA[red flag law]]>, <![CDATA[Special Session]]>, <![CDATA[temporary mental health restraining order]]>, <![CDATA[Tennessee]]>, <![CDATA[Video]]>, Bearing Arms, News

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