Sorta Twitter Law School - let's talk Red Flag Laws and ex parte orders and due process and how anyone who tells you don't worry, the process won't be abused and there are robust due process protections is, at best, wildly naïve and, more likely, is lying to your face.
Your legal vocabulary term for the day is ex parte - this means without party in Lawyer Latin. An ex parte order is one issued without both parties being present. There are valid reasons for this. In matters where time is of the essence, courts need the ability to issue orders.
This is to protect the person, property, or rights of another. To move it out of interpersonal matters, in civil litigation an temporary restraining order may be issued for documents or items to be preserved because the other side might dispose of them before suit can be filed.
Ex parte orders are needed due to human nature. Sometimes things need to be done quickly and courts are not designed for speed. Make no mistake, though. The due process protections for the party against whom the order is issued come into effect after the issuance of the order.
To show the potential issues with Red Flag laws, I shall discuss what happened to a client with the issuance of a protection order against him. He had an ex-wife who was bipolar and who refused to take her meds. She continued to harass him years after their divorce.
She showed up to court with a black eye and said he punched her in the face. She sought a protective order against him, which the judge issued. She also filed a criminal complaint for assault against a woman. The protective order statute requires gun confiscation until hearing.
Client leaned about this when the police showed up to serve him with the order and summons for court appearance. He was stunned by this not only because he didn't hit her but because he was out of the state on the date this supposedly happened. The told the police this.
The police shrugged and said we're just here to serve you and get your guns. That is true. The cops do not adjudicate, they only do what the court says. So he turned over his guns and then got in touch with us later that day. Boss and he were long time friends.
Boss told him to get together every bit of documentation about him being out of town, hotel receipts, meal receipts, any video of him at the gathering he was attending, all of it. Boss also got in touch with the DA and said he was out of state, he couldn't have done this.
DA said I'm not dropping this but move to dismiss and we'll hear both motions at the 10 day hearing on the protective order. So we filed the motion to dismiss and motion to consolidate and then Boss went to the hearing. The crazy ex didn't show up to the hearing at all.
Boss presented everything to the judge. Judge told the DA withdraw the charges or I'm dismissing. The DA said fine, I'll withdraw. Now, it's better for the stats on the DAs side to withdraw then to have the case dismissed. Judge also refused to extend the protective order.
Client asked where do I pick up my guns. Judge said you have to go through the paperwork to do that. We'd anticipated that so we had the forms ready and the judge signed the forms. Client said where do I pick them up and judge said this has to be processed, it'll take three weeks
Client also asked the DA when the hearing would be for the ex's perjury charges. The DA said what perjury charges? Client got very upset because it was obviously perjury, he wasn't even in the state, she provably lied, that's perjury. DA said no we don't charge in these cases.
Three weeks go by and client starts calling the sheriff's office to get his guns back. He keeps getting the run around. Boss had to threaten to go back to court to get an order compelling compliance. When client picked up the guns, his Mossberg shotgun was gone.
The sheriff's office initially denied that he even had one, luckily he'd kept a copy of the inventory. It took seven months for him to get reimbursement for the Mossberg. The sheriff's office never did say what happened to it other than there must have been a mix up.
While all of that is going on, client was looking for work. He had two interviews that went well and he was told that he would be offered the job once the background check was done. Both jobs retracted offers after the background check came back.
So we had to get copies of the background checks from the background check services. Sure enough, due to how the database on the state side was maintained, the data scrape pulled the protection order and the charge but the dismissal wasn't showing up yet.
Client now had to decide if he wanted to disclose to a potential employer that, hey, I have a crazy ex who claims false things about me, here's a copy of the dismissal paperwork or if he wanted to wait the five weeks it would take for the dismissals to propagate through the dbase
Also the dismissal paperwork on the criminal charges was marked dismissed due to failure of complaining witness to appear. That said nothing about she lied about this entire thing. Boss had to explain the situation to an employer who, thankfully, listened.
Because they were friends, Boss handled this at a very low rate. It still cost the guy $2,500. If it had been at Boss's standard rate? Well over $10,000. All for something that was an actual lie. But but but alex! Due process! It worked! Sure. In theory, it did.
The protection order was not renewed. The criminal charges were dropped. He got all but one of his guns back. He got a job, eventually. It all worked. Sure it did. All it cost him was $2,500, months of his life, humiliation during interviews, and immense stress. For a lie.
She was never charged with perjury. There was no point in suing her since she didn't have any money. If you think that this won't happen with Red Flag laws, you are suffering from disordered thinking and, hey, isn't that a red flag? /fin
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