3 ms·

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

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.

giantg2 3y ago
"and perhaps as low as 10%." 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.
- tptacek 3y ago
  "Preponderance of evidence" does mean "more likely to be true than not" (there are jury instructions that read that way). But the court isn't tasked with proving that harm is more likely than not, but rather that posing a risk of harm is more likely than not. 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.
  - giantg2 3y ago
    "But the court isn't tasked with proving that harm is more likely than not, but rather that posing a risk of harm is more likely than not." 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).
    - jcranmer 3y ago
      > 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. 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.

giantg2 3y ago

"and perhaps as low as 10%." 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.

tptacek 3y ago
"Preponderance of evidence" does mean "more likely to be true than not" (there are jury instructions that read that way). But the court isn't tasked with proving that harm is more likely than not, but rather that posing a risk of harm is more likely than not. 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.
- giantg2 3y ago
  "But the court isn't tasked with proving that harm is more likely than not, but rather that posing a risk of harm is more likely than not." 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).
  - jcranmer 3y ago
    > 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. 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.