Trump says he would have tried to stop Parkland shooter — with his bare hands

Discussion in 'Political Discussions' started by Abner, Feb 26, 2018.

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  1. me again

    me again Well-Known Member

    Domestic Violence v. Mentally Ill

    Here is the process for obtaining an emergency restraining order:
    1. Petition the court for an emergency restraining order.
    2. If an emergency restraining order is granted, then the accused immediately loses his right to keep and bear arms, until a due process hearing can be held, which is usually a week or two later.
    3. A due process hearing is held to determine of Second Amendment rights can be restored to the accused.

    Here is the order-of-events:
    1. Second amendment right is lost first, WITHOUT due process.
    2. Due process comes later, to determine if Second Amendment right should be restored.

    The point is that President Trump quoted current practice (at least in some states) -- and applied it towards those who are accused of being mentally ill.
     
  2. Kizmet

    Kizmet Moderator

    [QUOTE="me again, post: 505814, member: 613] those who are accused of being mentally ill.[/QUOTE]

    First of all, your point #2 is wrong. When a restraining order is issued it does not automatically restrict someone from possessing firearms. It restricts contact between two (or more) people. That's all. And even if it did restrict firearms possession, how would you even know if the person owned any weapons? Records of ownership are either not kept or are wildly inaccurate. Finally, no one is "accused of being mentally ill. Being mentally ill is not against the law. Depression is a "mental illness" and lots of people go in and out of depressive periods in their life. So if someone was depressed when they were 20 are they "mentally ill" when they're 30? Trump knows nothing about any of this. He's just making it all up as he goes along.
     
  3. me again

    me again Well-Known Member

    Kizmet, there are different kinds of restraining orders. Some are "no contact" only, while others include the loss of Second Amendment rights. Additionally, it can vary from state-to-state.

    The petitioner will tell the judge when she is apply for a RO. However, even if the judge signs-off on the RO (for no weapons) -- there is still no statutory mechanism to forcibly seize the guns because a RO is not a search warrant. That's the problem that most states have.

    And some states have no records of firearms at all.

    Some people are advocating that if someone is accused of being mentally ill... then:
    1. His guns should be taken (before due process)
    2. And then a hearing should be held (due process)

    That is one reason why SCOTUS forced all of the States to release most of the mentally ill (about 15 or 20 years ago). Prior to that, there were large numbers of people that were involuntarily housed in mental institutions.

    His comment was predicated on domestic violence RO's (as they can prohibit the possession of weapons BEFORE due process is held). The concept could similarly be applied to taking guns away from the mentally ill BEFORE due process is held.

    People are complaining that the police did not take away the kids guns. However, there was no statutory mechanism for the police to legally do that.
     
  4. Kizmet

    Kizmet Moderator

    I've never seen one of those 2nd Ammendment restraining orders. Maybe you could show me one. Or maybe not.

    Yeah well, I don't think it's "some people," I think it's just one idiotic person.
     
  5. me again

    me again Well-Known Member

    Kizmet, it's not just one person i.e. the loss of rights BEFORE due process has been going on for a long time under the guise of domestic violence "temporary" injunctions (or "temporary" restraining orders), dating back to the 1990s (when it first started).

    http://www.courts.ca.gov/documents/dv110.pdf

    Page 1 -- You can see it's a "temporary" emergency injunction e.g. the loss of rights comes first, which is followed by due process later (exactly as President Trump suggested).

    Pages 3 and 5 -- You can see the "temporary" loss of of the right to possess guns.

    Kizmet, now you have seen one of those "2nd Amendment restraining orders" (your term). :)
    1. It's initially called a "Temporary Injunction" (guns get taken away first, followed by due process later)
    2. After due process is provided, if the judge makes the injunction permanent, then it's called a "permanent" Restraining Order.
    3. The terms can vary somewhat from state-to-state.

    As you aptly noted, not all temporary injunctions and restraining orders bar guns, but as this writer noted, some do! Pay attention! :)
     
    Last edited: Mar 3, 2018
  6. Kizmet

    Kizmet Moderator

    ok, thanks. That's a great example. So . . . you are saying (and Trump is saying) that this order, which applies to Domestic Violence, is going to be extended to people who are "accused of being mentally ill" for the protection of the larger community. That's interesting. And you believe that Trump will go up against the NRA and the ACLU to pass legislation to create this law? That would be fun to watch. So I assuming then that the White House will be creating legislation to that effect and we can expect to see some written proposal in the very near future. Nice!

    http://www.nydailynews.com/news/politics/w-h-walks-back-trump-gun-control-comments-nra-meeting-article-1.3851299
     
  7. me again

    me again Well-Known Member

    Hi Kizmet. You asked some tough questions and the answers are contingent on whatever law(s) the legislators decide to pass (if any). Today (3.3.18), a Republican legislator was interviewed on Fox News and he mentioned "restraining order" for the first time -- so they may end up going down that path. If they create a new "restraining order" to prohibit the mentally ill from possessing guns, then the infrastructure would probably mirror preexisting domestic violence restraining orders:
    1. Petitioner files for an emergency injunction, asking a judge to immediately bar someone from possessing a gun, due to articulable issues related to personal or public safety.
    2. Judge grants or denies petition. If emergency injunction is granted, then it becomes illegal for the accused to possess guns until a due process hearing is held (which is usually within an expeditious week or two).
    3. At the due process hearing, evidence is produced (or is failed to be produced). Judge determines if gun prohibition should be extended or made permanent.

    Since mental health issues are involved, this is uncharted territory because nothing like it has ever been done (with the exception of domestic violence emergency injunctions).
    1. A conviction for domestic battery can result in a permanent restraining order e.g. a permanent bar from ever possessing a gun. Forever.
    2. But mental health is not a "conviction." If it can be cured, then a restraining order does not have to be permanent. But that's a medical and a legislative issue.

    It's going to have to be tied to some sort of a nationalized mental health database, which may be illegal (???). Not sure. Anything dealing with mental health is going to be politically messy, legislatively messy and psychologically messy. Yep, messy. President Trump has opened a political backdoor that the Democrats are going to vigorously pounce on and pursue e.g. creating a mental health database that is tied to barring the mentally ill from possessing guns. The Republicans have previously shot down creating a nationalized mental health database, but that door is now wide open (politically).
     
    Last edited: Mar 3, 2018
  8. Kizmet

    Kizmet Moderator

    Yeah, it's easy to say, "I'll sign any law the legislature puts on my desk." And then he flies to Florida to play more golf. If he really means it, then the White House will write the legislation and Trump will personally work to get it through both houses. I'm guessing it will be the former. What do you think?

    https://www.cnn.com/2018/03/03/politics/trump-golf-100-days/index.html
     
  9. me again

    me again Well-Known Member

    Kizmet, your questions are above this writer's spiritual pay grade. However, here is an old article about creating a nationwide mental health database:
    https://www.washingtonpost.com/news/wonk/wp/2012/12/21/the-nra-wants-an-active-mental-illness-database-thirty-eight-states-have-that-now/?utm_term=.2334b82c08f6

    Here is a snip from the article: "The federal government does not have the constitutional authority to require state agencies to report [mental health] data."

    Additionally, HIPAA hamstrings law enforcement's ability to get mental health answers about people who are suspected of being mentally ill -- unless a court order or a subpoena is presented, which is hard for law enforcement to get because complainants are usually garden variety citizens. It's the complainants (not cops) who are usually the witnesses to the alleged mental health indicators. Conversely, officers usually arrest the mentally ill for criminal offenses, such as "disorderly conduct" for doing strange things i.e. urinating in public, standing in the middle of the street screaming, et al ad nausum. The mental health issue is a giant ball of... messy.
     
    Last edited: Mar 3, 2018
  10. Kizmet

    Kizmet Moderator

    Ok, well it sounds like what you're saying is that Trump has made a proposal that virtually everybody disagrees with. Big shock . . .
     
  11. Bruce

    Bruce Moderator

    How does Bill Clinton fit into this conversation?
     
  12. Stanislav

    Stanislav Well-Known Member

    He doesn't. First, because he's not "pampered" (though he IS both a senior citizen and a draft dodger. One can argue relative morality of getting student deferment based on winning Rhodes Scholarship vs. phoney baloney bone spur medical notes; however, in truth, Bill did quite deliberately dodge the draft - as did Donald Trump).

    More importantly, President Bill Clinton does not fit into this conversation because, being a draft dodger, he possess enough IQ points NOT to publicly brag about heroic feats he would, like, totally nail if he just had a chance. Unlike an entity which occupies the Presidency now. That dude is too busy NOT responding to Master Vlad showing videos on how he can obliterate Mar-a-Lago with his shiny new nuclear rocket. Heroically. Oh, and starting trade wars with Canada.
     

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