5 ms·

> red flag laws... issuing them almost by default Do you have any evidence of that, or are you just making stuff up.

giantg2 3y ago
I should have made it more generic and said orders of protection to include the more traditional orders as well. The process is well known to be abused, especially during divorce proceedings. These processes do not include the protections found in criminal law and result in lower burden of proof, ex-parte hearings, and no right to an attorney. 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 Almost half of all cases are either withdrawn or an no-show.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/1084/a-closer-look-at-protection-from-abuse-orders-in-pennsylvania 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=&httpsredir=1&article=4830&context=lcp https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...
- tantalor 3y ago
  Thanks! Great resources and well explained
- jcranmer 3y ago
  > 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. 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.
  - giantg2 3y ago
    '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",' 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.
    - jcranmer 3y ago
      The exact wording in my state for the red flag law is: > 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.
      - 3y ago
- zopa 3y ago
  Thanks for the link to the paper. But I don't think that 10-20 seizures per prevented suicide estimate you mention can tell us anything about probable cause or the lack thereof. It's a guess at the rate of prevented deaths from suicide attempts, when the subject used a something other than a gun, but would have used a gun if the cops hadn't taken it from them. It's not an estimate of how many suicide attempts were prevented: it's just a measure of how much less deadly the suicide attempts that happened anyway were. A gun seizure is a big dramatic intervention; it's pretty plausible that it sometimes interrupts a bad moment that's essentially a one-off, and sometimes leads to people getting the help they need. Neither of those effects play into the estimate you cited. 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.
  - LorenPechtel 3y ago
    If it's a one-off then it's unlikely a red flag will matter. It will either have already been done or will not be done, the flag comes too late to intervene.
    - zopa 3y ago
      I don't know what the response time usually is in urgent cases, do you? There's a quote on pg 16 of the study that makes same-day sound unremarkable. It starts: > 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.
  - giantg2 3y ago
    "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." 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.
Clubber 3y ago
The Baker Act is similar, it's seen widespread abuse, even against high school kids. https://www.orlandosentinel.com/2021/03/16/misuse-of-floridas-baker-act-traumatizes-thousands-of-kids-each-year-advocates-say/ 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.

I should have made it more generic and said orders of protection to include the more traditional orders as well. The process is well known to be abused, especially during divorce proceedings. These processes do not include the protections found in criminal law and result in lower burden of proof, ex-parte hearings, and no right to an attorney. 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/1084/a-closer-look-at-protection-from-abuse-orders-in-pennsylvania 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=&httpsredir=1&article=4830&context=lcp https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer...

tantalor 3y ago
Thanks! Great resources and well explained
jcranmer 3y ago
> 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. 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.
- giantg2 3y ago
  '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",' 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.
  - jcranmer 3y ago
    The exact wording in my state for the red flag law is: > 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.
    - 3y ago
zopa 3y ago
Thanks for the link to the paper. But I don't think that 10-20 seizures per prevented suicide estimate you mention can tell us anything about probable cause or the lack thereof. It's a guess at the rate of prevented deaths from suicide attempts, when the subject used a something other than a gun, but would have used a gun if the cops hadn't taken it from them. It's not an estimate of how many suicide attempts were prevented: it's just a measure of how much less deadly the suicide attempts that happened anyway were. A gun seizure is a big dramatic intervention; it's pretty plausible that it sometimes interrupts a bad moment that's essentially a one-off, and sometimes leads to people getting the help they need. Neither of those effects play into the estimate you cited. 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.
- LorenPechtel 3y ago
  If it's a one-off then it's unlikely a red flag will matter. It will either have already been done or will not be done, the flag comes too late to intervene.
  - zopa 3y ago
    I don't know what the response time usually is in urgent cases, do you? There's a quote on pg 16 of the study that makes same-day sound unremarkable. It starts: > 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.
- giantg2 3y ago
  "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." 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.

Clubber 3y ago

The Baker Act is similar, it's seen widespread abuse, even against high school kids. https://www.orlandosentinel.com/2021/03/16/misuse-of-floridas-baker-act-traumatizes-thousands-of-kids-each-year-advocates-say/ 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.