MA H.3081/H.3610 Extreme Risk Protective Orders (ERPO) - Linsky Bill

[CAR]

Possible announcement tomorrow according to the Statehouse News Service Twitter


A day after saying "stay tuned" when asked about "red flag" gun bill, @SpeakerDeLeo advises gun safety legislation announcement tmrw in Cambridge with @MarjorieDecker, sponsor of ERPO bill #mapoli

Matthew Murphy (@SHNSMurphy) on Twitter

 

[Waher]

The checks from Bloomie & the MA bonded warehouse cartel must have cleared.

 

[Boston4567]

It's clear this bill is on a path to passage. I think it's time for us and GOAL to focus on moderating the worst aspects of it.

The worst aspect, in my opinion:

The standard of evidence is "preponderance of the evidence", e.g., over 50%. It should be "clear and convincing evidence" like the Florida bill. That's often represented as something like over 70-75%. It might seem like a minor distinction, but it's not. A "preponderance" standard effectively negates any real appellate review. If we could get this standard changed, it would at least mitigate the damage of it.

The next worst aspect, though there's little chance of changing this, is that only law enforcement should be allowed to pursue the orders (as is the case in the Florida bill). Letting family and household members do it just sets up the likelihood of a vengeful spouse or significant other trying to get back at you. If you require them to talk to police, and the police to find enough evidence to go to court, it sets up another layer of review. And let's be honest, most cops in this state are more pro-2A than the judges.

If we made the standard "clear and convincing evidence", and made it so only law enforcement can pursue these orders, it would transform the bill into a net positive in my opinion. That may sound strange, but hear me out.

Let's say this law passes with those two changes. Now the law sets forth a court process for police to remove guns from dangerous individuals. If the police choose to ignore that process and instead revoke under the auspices of "suitability", and you appeal the revocation, there's a good chance the average District Court judge is not going to look favorably on that.

Don't get me wrong - the two legal mechanisms would be completely legally independent. But especially at the District Court level, the unfortunate reality is that egos and feelings drive things just as much as the law. If the police choose the "suitability" revocation route, it screams to a judge "we didn't have the evidence for an ERPO so we decided to act unilaterally to bypass your authority." And that would make it more likely that the judge would look skeptically at the police during a suitability appeal.

I think the end result here would be to give us more due process, not less. At the very least, it wouldn't make things worse.

I know the inclination is to oppose everything, but we're behind enemy lines and outnumbered in this state and sometimes an organized surrender is better than just getting slaughtered.

 

[inkdesigner]

It's clear this bill is on a path to passage. I think it's time for us and GOAL to focus on moderating the worst aspects of it.

Let's say this law passes with those two changes. Now the law sets forth a court process for police to remove guns from dangerous individuals. If the police choose to ignore that process and instead revoke under the auspices of "suitability", and you appeal the revocation, there's a good chance the average District Court judge is not going to look favorably on that.

Don't get me wrong - the two legal mechanisms would be completely legally independent. But especially at the District Court level, the unfortunate reality is that egos and feelings drive things just as much as the law. If the police choose the "suitability" revocation route, it screams to a judge "we didn't have the evidence for an ERPO so we decided to act unilaterally to bypass your authority." And that would make it more likely that the judge would look skeptically at the police during a suitability appeal.

I think the end result here would be to give us more due process, not less. At the very least, it wouldn't make things worse.

I know the inclination is to oppose everything, but we're behind enemy lines and outnumbered in this state and sometimes an organized surrender is better than just getting slaughtered.

No judge in a MA court will ever fault the PD for taking someone's firearms, whether thru the "suitability" clause or thru the ERPO route. The courts won't see the use of the "suitability" clause as unilaterally bypassing their authority, as the courts have already established that "suitability" is perfectly fine . After all, the courts in MA will just apply the "because gunz" doctrine and say its all good.

 

[Boston4567]

No judge in a MA court will ever fault the PD for taking someone's firearms, whether thru the "suitability" clause or thru the ERPO route. The courts won't see the use of the "suitability" clause as unilaterally bypassing their authority, as the courts have already established that "suitability" is perfectly fine . After all, the courts in MA will just apply the "because gunz" doctrine and say its all good.

Maybe, but debating that hypothetical isn't worth the time.

The point is, this bill is going to pass. The GOAL-supported bill is not. And there are things we can do to make this bill better.

The Florida bill 1) requires clear and convincing evidence, and 2) only allows law enforcement to apply for the order. If we could push those two changes through, it would at the very least not make MA laws worse than they are now.

 

[JJ4]

Maybe, but debating that hypothetical isn't worth the time.

The point is, this bill is going to pass. The GOAL-supported bill is not. And there are things we can do to make this bill better.

The Florida bill 1) requires clear and convincing evidence, and 2) only allows law enforcement to apply for the order. If we could push those two changes through, it would at the very least not make MA laws worse than they are now.

Well thought out post. I think you're right. DeLeo came out from behind closed doors and said this is moving forward - which means it's nearly a done deal. But there is possibly room for tweaks, and the ones you suggest come across as fair and reasonable to the other side.

 

[firestorm]

Maybe, but debating that hypothetical isn't worth the time.

The point is, this bill is going to pass. The GOAL-supported bill is not. And there are things we can do to make this bill better.

The Florida bill 1) requires clear and convincing evidence, and 2) only allows law enforcement to apply for the order. If we could push those two changes through, it would at the very least not make MA laws worse than they are now.

The issue is we also have no pull with these morons. You go to them and ask for changes, at best you get ignored, at worst they look at your issues and try to make it worse.

 

[JJ4]

The issue is we also have no pull with these morons. You go to them and ask for changes, at best you get ignored, at worst they look at your issues and try to make it worse.

- In 2014, we got substantial changes into the proposed bills that actually ended up slightly benefiting us.
- In 2017 we got Linsky's bump stock language ("maintenance" that speeds up firing rate stuff) replaced by language drafted by Tarr.

 

[42!]

It's clear this bill is on a path to passage. I think it's time for us and GOAL to focus on moderating the worst aspects of it.

The worst aspect, in my opinion:

The standard of evidence is "preponderance of the evidence", e.g., over 50%. It should be "clear and convincing evidence" like the Florida bill. That's often represented as something like over 70-75%. It might seem like a minor distinction, but it's not. A "preponderance" standard effectively negates any real appellate review. If we could get this standard changed, it would at least mitigate the damage of it.

The next worst aspect, though there's little chance of changing this, is that only law enforcement should be allowed to pursue the orders (as is the case in the Florida bill). Letting family and household members do it just sets up the likelihood of a vengeful spouse or significant other trying to get back at you. If you require them to talk to police, and the police to find enough evidence to go to court, it sets up another layer of review. And let's be honest, most cops in this state are more pro-2A than the judges.

If we made the standard "clear and convincing evidence", and made it so only law enforcement can pursue these orders, it would transform the bill into a net positive in my opinion. That may sound strange, but hear me out.

Let's say this law passes with those two changes. Now the law sets forth a court process for police to remove guns from dangerous individuals. If the police choose to ignore that process and instead revoke under the auspices of "suitability", and you appeal the revocation, there's a good chance the average District Court judge is not going to look favorably on that.

Don't get me wrong - the two legal mechanisms would be completely legally independent. But especially at the District Court level, the unfortunate reality is that egos and feelings drive things just as much as the law. If the police choose the "suitability" revocation route, it screams to a judge "we didn't have the evidence for an ERPO so we decided to act unilaterally to bypass your authority." And that would make it more likely that the judge would look skeptically at the police during a suitability appeal.

I think the end result here would be to give us more due process, not less. At the very least, it wouldn't make things worse.

I know the inclination is to oppose everything, but we're behind enemy lines and outnumbered in this state and sometimes an organized surrender is better than just getting slaughtered.

Why not just remove suitability? After all, it will be redundant. And this would have a real impact of new licensing and the ability for CoPs to add requirements to the application. No threat of being unsuitable and there is no reason to cooperate with the additional requirements.

 

[Boston4567]

Why not just remove suitability? After all, it will be redundant. And this would have a real impact of new licensing and the ability for CoPs to add requirements to the application. No threat of being unsuitable and there is no reason to cooperate with the additional requirements.

That would be nice, but it's not going to happen. The best we can hope to do here is not lose ground.

Like JJ4 said, as much as our legislature sucks there are some that are willing to work with us if our suggestions seem palatable to them. DeLeo at least doesn't seem to be an ideologue or a frothing at the mouth anti and he seems to prefer to govern with consensus if possible, which is what happened in 2014 and 2017.

But if we don't come to the table then we don't even get the scraps.

 

[Coyote33]

My rep used to be VERY strong on GOAL issues, but after the bump stock thing, he seems to have backed off significantly, and he said many others are as well. He was not happy being told one thing, then a week or two later, to do the opposite.

 

[Roadglide]

This bill is f***ed up on multiple levels. The list of designated reporters include dating partners and former dating partners. There have been quite a few gun owners in this state who have had their LTC revoked and deemed unsuitable because of a bogus 209A from a vindictive ex. This will make it even easier for ex-partners and spouses to ruin gun owners' lives out of spite.

Doctors are also designated reporters--imagine a gun owner naively filling out the survey sheet they give you at most doctor's offices asking if there are guns in the home. Anti-gun doc asks the patient how he's feeling, patient says something about work being stressful and causing him to have headaches. Doctor calls police, LTC revoked and guns confiscated. Don't think it can't happen.

This has failure written all over it imo. The more designated reporters the more the courts are going to be pestered with frivolous claims. Judges will flip their shit eventually. And how long will it take for a defense attorney to flip the tables on a reporter and dig into their past and question their credibility. Make it so people are afraid to say something for fear of being sued themselves

 

[Boston4567]

My rep used to be VERY strong on GOAL issues, but after the bump stock thing, he seems to have backed off significantly, and he said many others are as well. He was not happy being told one thing, then a week or two later, to do the opposite.

Pardon my ignorance, but what happened with GOAL and the bump stock ban? I wasn't involved in this stuff at the time.

 

[Johnnyh]

An emergency order could be issued ex parte with a requirement that a full hearing be held within 72 hours and that a ruling as a result of the full hearing be rendered within 48 hours [and the order would have to be immediately appealable as a matter of right]

The legislation would have to have a mechanism for statutory damages to be recoverable against anybody who files a petition for a firearms removal order that is deemed to be either A) substantially lacking in merit or B) initiated in bad faith or for an improper purpose.

I would suggest $10,000 in statutory damages in addition to the reasonable attorney's fees and costs incurred to challenge the order or to get the order set aside.

 

[Al458]

The legislation would have to have a mechanism for statutory damages to be recoverable against anybody who files a petition for a firearms removal order that is deemed to be either A) substantially lacking in merit or B) initiated in bad faith or for an improper purpose.

I don't think any DA in Ma will be rushing to charge anyone who files for an erpo that is lacking merit or initiated in bad faith regardless of how blatant, that's why this crap law is terrible no matter what language is put into it. Yea it would be nice to have some teeth against someone trying to falsely take one of these out on someone but in the end it wont matter and no one will be charged regardless, and you, the law abiding stiff will be left with all your stuff taken and a lawyers bill

 

[kevin9]

Pardon my ignorance, but what happened with GOAL and the bump stock ban? I wasn't involved in this stuff at the time.

The House version as passed was a total ban with a broader definition of banned devices that could have included things such as replacement fire control components and gunsmith work that lightened or smoothed trigger pull. The House had ignored GOAL entirely. The Senate version included a GOAL-worked amendment that narrowed the definition and allowed ownership by those with machine gun licenses. The House version essentially won out in conference, with effectively only the narrowed Senate definition making the cut.

 

[Coyote33]

Pardon my ignorance, but what happened with GOAL and the bump stock ban? I wasn't involved in this stuff at the time.

They told my representative one thing, then a few weeks later, told him something else. I think it was that he said they said not to worry about bump stocks, then they said to vote against the bill. Basically, it was a mixed message type of thing, which just makes everybody's job confusing, and makes everybody come out looking bad, and nobody wants to be a part of that. (I'm just the messenger here.)

 

[mjbff]

State House control is all democratic So what democrats want democrats get!

 

[Coyote33]

State House control is all democratic So what democrats want democrats get!

Democrat Michael Moore puts on a gun safety day at our club.

 

[Rez]

So it seems like it passed. I'm wondering if there's a way to repeal it. Any ideas?

 

[tcarter01]

Only passed in the House..Still got the Senate, then a possible conference, then back to both sides to approve the conference version, and then off to Baker's desk.

According to my REP who voted no, best we can hope for is the Senate makes it even more worse and moon-batty that it gets hung up in the committee process between both chambers and they gavel out end of the Legislative Session June without a compromise.

 

[JJ4]

They told my representative one thing, then a few weeks later, told him something else. I think it was that he said they said not to worry about bump stocks, then they said to vote against the bill. Basically, it was a mixed message type of thing, which just makes everybody's job confusing, and makes everybody come out looking bad, and nobody wants to be a part of that. (I'm just the messenger here.)

Not to eat our own, but this example combined with the poor messaging and approach on ERPO diminishes our capacity to be effective. If we look crazy, then even the reps on our side will ignore us.

 

[Dadstoys]

Not to eat our own, but this example combined with the poor messaging and approach on ERPO diminishes our capacity to be effective. If we look crazy, then even the reps on our side will ignore us.

Yet they are basing laws on the opinions of a bunch of crazier than a shit house rat cat ladies.

 

[Boston4567]

Yet they are basing laws on the opinions of a bunch of crazier than a shit house rat cat ladies.

Because those are the people they talk to. If we want them to listen to us as well, we have to learn how to appeal to them.

I cold called my state senator's campaign office yesterday and spoke to her campaign manager about standard of proof in ERPO. This is a liberal state senator currently running for Congress.

If I'd just said I was against the bill and told him she should vote against it, that would have been the end of the conversation. Instead I focused on the issues that existed in the bill, and we had a good conversation that touched on standards of proof, what other states had done, etc. Show that you're a reasonable person that has some palatable ideas they may not have thought of, and they'll listen.

 

[HuntMaine]

I have not read the entire Bill/Law but when I spoke to my rep it sounded like the person who is subject to the ERPO does have the opportunity to be heard before a judge, which I guess is better than nothing. So the person making the accusation has to be a family members or in a relationship with the person? So your angry neighbor can’t just make a call out of spite? You have to appear before a judge to obtain an ERPO on someone?

 

[42!]

I have not read the entire Bill/Law but when I spoke to my rep it sounded like the person who is subject to the ERPO does have the opportunity to be heard before a judge, which I guess is better than nothing. So the person making the accusation has to be a family members or in a relationship with the person? So your angry neighbor can’t just make a call out of spite? You have to appear before a judge to obtain an ERPO on someone?

But you go into court assumed to be guilty. And try to prove you'll never be "a threat", keep in mind that past behavior is not proof that you will never be, nor is any kind of evaluation or professional report saying you're not. And remember, everything your ex SO says is god's truth and you just lie.

So if you are deemed "a threat", given the way it works, how would you prove you're not? This is a serious question.

 

[Dadstoys]

Because those are the people they talk to. If we want them to listen to us as well, we have to learn how to appeal to them.

I cold called my state senator's campaign office yesterday and spoke to her campaign manager about standard of proof in ERPO. This is a liberal state senator currently running for Congress.

If I'd just said I was against the bill and told him she should vote against it, that would have been the end of the conversation. Instead I focused on the issues that existed in the bill, and we had a good conversation that touched on standards of proof, what other states had done, etc. Show that you're a reasonable person that has some palatable ideas they may not have thought of, and they'll listen.

There are some reasonable ones , but keep in mind this bill or any of the others has absolutely nothing to do with public safety in any way , it's just another tool in the grabbers box.
Proof of that is dropping the mental health aspect , and standard of proof, plus expanding who can file.
They really don't care what you have to say.
The only time you will get their attention is when there is a threat to them getting elected/re-elected .

 

[Waher]

I have not read the entire Bill/Law but when I spoke to my rep it sounded like the person who is subject to the ERPO does have the opportunity to be heard before a judge, which I guess is better than nothing.

The Bill is a blatant 6th Amendment violation, and rounds the bases for a home run of 5th, 4th, and 2nd violations too.

 

[Dadstoys]

I have not read the entire Bill/Law but when I spoke to my rep it sounded like the person who is subject to the ERPO does have the opportunity to be heard before a judge, which I guess is better than nothing. So the person making the accusation has to be a family members or in a relationship with the person? So your angry neighbor can’t just make a call out of spite? You have to appear before a judge to obtain an ERPO on someone?

For one, no judge in this state will find in your favor, it's a risk they would not take.
If what I read was true the mother of some girl you dated ten years ago could file if she's pissed you broke her little girls heart.

Another thing we all should be thinking about real hard is the method of the confiscation.
Is it going to be a polite conversation at the front door or is it going to be a 3AM door kick by the roid crew with flash bangs, fingers on the triggers and safeties off with your wife, kids and dog in the house ?
Ask your rep about that one .

Most average working people would end up bankrupt fighting this shit and you know damn well the state will fight you into the poorhouse with delays and continuances and appeals till you ran dry.

Then of course there's bonded warehouse fees that would end up being far more than the average persons collection is worth anyway assuming you even had anything left after lawyers fees and court costs.

But in theory you got your due process , so it all good.

 

[HuntMaine]

For one, no judge in this state will find in your favor, it's not a risk they would not take.
If what I read was true the mother of some girl you dated ten years ago could file if she's pissed you broke her little girls heart.

Another thing we all should be thinking about real hard is the method of the confiscation.
Is it going to be a polite conversation at the front door or is it going to be a 3AM door kick by the roid crew with flash bangs, fingers on the triggers and safeties off with your wife, kids and dog in the house ?
Ask your rep about that one .

Most average working people would end up bankrupt fighting this shit and you know damn well the state will fight you into the poorhouse with delays and continuances and appeals till you ran dry.

Then of course there's bonded warehouse fees that would end up being far more than the average persons collection is worth anyway assuming you even had anything left after lawyers fees and court costs.

But in theory you got your due process , so it all good.

I agree it sounds like terrible path I didn’t get to read it so just posed the questions. The whole prove yourself innocent after they’ve already had you marked as guilty is a dangerous process likely not to end in the innocent gun owners favor. I was understanding it as it has to be current family or a current relationship and not some past one.