GCO Vice President John Monroe answers questions on GA HB435

GCO has received many inquiries from members of other organizations, wanting to know why we oppose HB 435 (the Red Flag Law Bill). They say their organizations just oppose the bill without providing any analysis they can use to discuss the bill. So, we are providing the following analysis as a public service.

HB 435 provides a mechanism for someone (the “petitioner”) to petition a superior court to seize another person’s (the “respondent’s”) firearms and ammunition. That should be the first “red flag.” The respondent’s property is being taken without just compensation, in violation of the 5th Amendment.

The petitioner can be any law enforcement officer (“LEO”) or anyone who ever lived with the respondent in the same dwelling. This means college roommates and other casual acquaintances that once shared housing can file petitions. The petition can be filed in the county where the respondent resides or in the county where the petitioner’s law enforcement agency is located. In other words, the venue does not have to be in the county of the respondent’s residence, in violation of the state constitutional provision requiring that a person be sued in his own county. The petitioner can be in Valdosta and the respondent can be in Blue Ridge, and the petitioner can file in Lowndes County (Valdosta). Guess who has to drive five hours to defend himself?

The petitioner has to swear under oath that the respondent poses a significant danger of causing personal injury to himself or others by possessing a firearm. The petitioner has to identify the quantities, types, and locations of firearms and ammunition the respondent possesses (but there is no downside to the petitioner if the petitioner is wrong as long as the petitioner is not lying).

The petitioner has to attempt to notify a person who lived or formerly lived with the respondent, but has no obligation to attempt to notify the respondent himself. A hearing must be held within 14 days of filing the petition, so the respondent has only two weeks to find and hire a lawyer (perhaps hundreds of miles away), meet with the lawyer, prepare a defense, arrange for witnesses, and show up and put on the defense.

In the meantime, the petitioner could have requested an “ex parte” order, meaning the court could issue a “risk protection order” without notice to respondent. The standard for the ex parte order is very low, there only has to be “reasonable cause” to believe the respondent poses a significant danger to himself and others. This standard is below even “probable cause,” which at least would require that it is more likely than not that the respondent poses a danger. If the judge finds reasonable cause, the judge is required to issue an ex parte order.

An ex parte order requires the respondent to surrender all firearms and ammunition to a law enforcement agency. The agency can seek a search warrant if it wants to. The respondent has no opportunity to make alternative arrangements. The property is seized. After seizure, the respondent can request that the property be transferred to a third party.

At the 14-day hearing, the standard becomes higher. There must be clear and convincing proof that respondent poses a significant danger to himself or others. The respondent has no opportunity for discovery or any ability to know in advance what the evidence against him is. He has no meaningful opportunity to prepare for the hearing.

A respondent may request, one time, a hearing to vacate an order. The hearing is held 14-30 days after petitioner is served (i.e., the petitioner gets more notice for a hearing to vacate than the respondent gets for the initial hearing when he does not even know there is a case against him). At the hearing to vacate, the burden is on the respondent to prove by clear and convincing evidence that he does not pose a danger to himself or others (i.e., he must prove a negative).

A risk protection order can last up to 12 months, but it may be extended indefinitely with successive 12-month orders.

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