> red flag laws... issuing them almost by default
Do you have any evidence of that, or are you just making stuff up.
Do you have any evidence of that, or are you just making stuff up.
It's hard to find data on a lot of this. If you talk to divorce attorneys, they will tell you it's common. Here are some stats on my state. The initial order is granted, typically ex-parte, 89% of the time. Only 18% are granted a final PFA. Almost half of all cases are either withdrawn or an no-show. These are some abysmal numbers. They are granted readily and the vast majority don't stand up when challenged, even considering the lower burden of proof. I can't did the article, but there was a retired judge that openly admitted to approving most orders because the cost for being wrong was too high.
https://www.pacourts.us/news-and-statistics/news/news-detail...
One estimate that every 10-20 seizures saves one suicide. So clearly not living up to the more likely than not standard, or we would expect to see a closer to 50% result. This study also notes that the rate of firearm assault was too low to assess crime against others. You can also see some of how the process works without the protections on the criminal justice side (prosecutor statements).
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...
But that's not the standard. The thing you're trying to prove generally isn't "is going to kill themself with 100% probability," but "is at risk to kill themself or other people", an unquantified metric but one for which a 10% chance isn't entirely unjustifiable for an intervention. It's that level of risk for which you would want a "more likely than not" scenario to reach 50% probability of demonstrating; if you multiply the two numbers together, your expected avoidance should be far lower than 1 suicide per 2 seizures.
Can you please link to that standard in law? The ones I have seen are all using the more likely than not standard. Yes, they are evaluating the risk - the risk of it being more likely than not that they would do something to harm themselves or others. I understand you multiplying those numbers, but that's not how any of the laws are written or work.
What we can see from the numbers I posted earlier about PFAs, is that the vast majority are rubber stamped at first and then rejected or abandoned when met with a 2 party hearing at which evidence for both sides can be presented. To me, this seems to support that a large number of individuals have been subject to restrictions in liberties without any real risk of being a threat at all.
It would be far better to have these take place in a criminal court with protections such as the right to an attorney, the right to be present, and proof beyond a reasonable doubt. Otherwise it's just a slippery slope of "for the children" mentality resulting in farces like civil asset forfeiture to get around the protections in the system.
> If after the hearing pursuant to subsection (a) or subsection (b), the court finds by a preponderance of the evidence that the respondent poses a risk of causing bodily injury to self or others by having in the respondent's control, ownership or possession a firearm, rifle, shotgun, machine gun, weapon or ammunition, the court shall grant the petition. If the respondent does not appear at the hearing pursuant to subsection (a) or subsection (b), the court shall grant the petition upon a determination that the petitioner has demonstrated by a preponderance of the evidence that the respondent poses such a risk.
The key operative words are "a preponderance of the evidence that the respondent poses a risk". It doesn't give any specific wording as to how likely the risk is, but a plain reading would expect that it could be less than 100% and perhaps as low as 10%.
Also note that, at least in my state, the respondent is afforded the opportunity to be present at the hearing determining whether or not they pose a risk.
And why stop there? Why not .01%?
"a preponderance of the evidence that the respondent poses a risk"
Preponderance of the evidence is more likely than not. I would assume there is case law on what a risk is, or a definition somewhere in the text. If not, this is overly vague as the general definition is just a possibility of loss, which would include any level of risk, even .01%.
"Also note that, at least in my state, the respondent is afforded the opportunity to be present at the hearing determining whether or not they pose a risk."
Really, I thought that all states that had red flag laws had ex-parte initial hearings and that respondants were only allowed at the final hearings, after things likes having property seized and being forced out of thier home, etc.
I wasn't able to find that text in a Google search, so I'm not sure which state that is for me to look into it further.
There's not much I can find on litigating "posing a risk of harm", but because of the constitutional issues, there's a lot out there about "flight risk", another risk-based judicial determination. There, the court doesn't have to find that you're "likely to flee", but rather that you have statutory risk factors, like an incentive to flee and the means to do so.
The probability of harm occurring is the risk of posing harm. If we use your logic, everyone should be found to be a risk, because everyone is capable of harm, and there's no cutoff so .01% chance of harm is enough.
"There, the court doesn't have to find that you're "likely to flee", but rather that you have statutory risk factors, like an incentive to flee and the means to do so."
Yeah, but those are defined in statute or case law. That isn't the case for the law you point out. In some cases, traditional PFAs do have statutory lists of actions that can justify issuing them. If it's really so vague that it logically includes anyone because everyone is a risk to some degree, one could argue on a combination of strict construction and unfair trial (result is predetermined if following the law the way it is written).
You are overly fixated on trying to get a hard quantified numeric chance, I think. People--maybe not everybody, but the vast majority--aren't trying to evaluate probabilities to come up with a number they can test against some standard amount. And if you try to force them to come up with a number, that number is mostly going to come out of thin air.
"Risk" is something that is likely enough to occur that you want to mitigate the possibility of it happening. If there is a risk of rain today, for example, you will bring an umbrella with you when you go out. How likely does that have to be for people to consider it a "risk" of rain? Well, it's going to vary, but you're going to find a general agreement that something like 0.01% isn't a risk but 30% is.
So is this a squishy standard? Yes. Is it vague? Not really. I mean, there are edge cases where people will disagree. But if you try to pin down a more precise definition, you will likely find more definitions than people articulating them, and a whole lot of cantankerous arguing over something that will have the net effect of replicating the same results. In the end, it just doesn't matter. The net standard is looking at somebody, and asking yourself the question "do I feel that this person poses a sufficient risk to warrant temporary suspension of liberty;" the legal requirements end up being more of a framework to explain why you came to the decision you did.
I'm not fixated on a hard numerical about, just on the standard for civil law - more likely than not. That's the standard it's required to be compared against.
"And if you try to force them to come up with a number, that number is mostly going to come out of thin air."
Thats not at all the case for the flight risk matrices used in your other example. So it is possible to quantify it.
"But if you try to pin down a more precise definition, you will likely find more definitions than people articulating them"
Which is why we have statutes - to ensure the rules of society have been agreed upon and recorded.
'"Risk" is something that is likely enough to occur that you want to mitigate the possibility of it happening.'
It's not defined in law or colloquial dictionaries that way. Any level of possibility of loss meets the definition of risk.
"The net standard is looking at somebody, and asking yourself the question "do I feel that this person poses a sufficient risk to warrant temporary suspension of liberty;" the legal requirements end up being more of a framework to explain why you came to the decision you did."
Got it - this is an oligarchy where the laws are used post facto to justify your own personal views. Essentially, one doesn't have rights because they are subjected to the whims of a few, undermining one of the main purposes of laws and process.
I think you just wrote a Rush song.
Just on the legal standard: it's probable cause that there's a risk, not probable cause that the risky event will happen. If you have 51% certainty that the subject has a 25% chance of harming themselves or someone else, that is likely to be good enough. And while it gives me no joy to defend the US criminal justice system, to me that's appropriate here. Living with someone who's making violent threats towards you or themselves is no fun at all, even if there's only a 1 in 4 chance that they'll follow through.
Do you have some citation on that? Frankly, if it's so ill defined that we don't know what level of risk justifies restrictions under the law, then we should all be opposing it as it can be used against anyone. Perhaps you play violent videos and that's enough risk?
"Living with someone who's making violent threats towards you or themselves is no fun at all, even if there's only a 1 in 4 chance that they'll follow through."
There are criminal charges that can be filed against this type of behavior. This does not require a hookie workaround. That's how we end up with things like civil assest forfeiture.
> A lot of times the people who have their weapons seized are not having a bad life—they’re having a bad moment.
It's an ex-prosecutor's illustrative hypothetical, so take it for what it's worth. Still the same logic applies if we're talking about bad weeks instead of bad evenings.
https://www.orlandosentinel.com/2021/03/16/misuse-of-florida...
I remember seeing a video where a police said something to the effect of, "I've had enough of this, I'm about to Baker Act him," referring to the person arguing about his rights. I wish I could find it.