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Regarding civil litigation remedies against those who lie on a Red Flag firearm confiscation order.


ChicagoRonin70

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I was just reading an article on Reason.com, titled Republicans Who Support Gun Confiscation Laws Imagine 'Due Process' That Does Not Exist on Paper or in Practice, wherein it said the following about Red Flag gun confiscation laws and whether states allow someone who is served such an order, and then it is later determined that the person filing it lied to get the order enforced against the victim:

 

Do respondents have a civil cause of action against petitioners who lie?

 

No state lets petitioners sue their accusers for knowingly misrepresenting facts in their petitions. While dishonest petitioners could theoretically face criminal charges, Kopel says, such cases are hard to prove and are almost never brought. He argues that the threat of litigation is necessary as a deterrent to people who would otherwise abuse the system to hurt people they have a grudge against.

Is this actually true? Especially in Illinois, where we supposedly got a "decent" gun confiscation law that protects the rights of firearm owners from abuse of this Constitutional-mocking travesty of legislation, can a person who is lied about, and thus legally libeled, their civil rights abridged, and their reputations very likely damaged by such an action against them being in the public record, NOT file a lawsuit in civil court against a person who lied about them being a threat in order to get a Red Flag gun confiscation action against them?

 

How the <& is this possible? This, in itself, should result in a lawsuit against the state for depriving a harmed citizen of one of the fundamental avenues of redress against those who commit such damaging actions against them, their rights, and their reputations!

 

I think this needs to be addressed at great length, how it is allowed to be so, and what can be done to get this equally egregious affront to firearm owners destroyed, so that the threat of bankrupting litigation can be employed as a proper deterrent to false charges.

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How will a civil cause of action help?

OK, I sue someone for lying, and they don't have any money to pay me, so the BEST thing that can happen is I have an uncollectible judgment and court fees. A worthless piece of paper.

 

We need criminal enforcement of the perjury laws.

 

We need both. Criminal penalties for perjury, plus civil judgments that seize assets, garnish wages, and which are non-dischargeable through bankruptcy. If someone lies in an action that deprives another person of civil rights, then they should pay the stiffest possible penalties.

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Is this actually true? Especially in Illinois, where we supposedly got a "decent" gun confiscation law that protects the rights of firearm owners from abuse of this Constitutional-mocking travesty of legislation, can a person who is lied about, and thus legally libeled, their civil rights abridged, and their reputations very likely damaged by such an action against them being in the public record, NOT file a lawsuit in civil court against a person who lied about them being a threat in order to get a Red Flag gun confiscation action against them?

The standard in Illinois' red flag law is "clear and convincing" evidence must be presented to a judge who rules on it. That's the same level of proof required, for example, to remove a child from the custody of a parent, to prove paternity, or to challenge the terms of a will. The process in several other states is less burdensome on the petitioner. Recall the Maryland case, where a wife dropped a red flag on her husband just because she could, so they served a no-knock warrant at 5:30am and killed him when they saw he had a gun.

 

As for libel or reputation damage, I'm not certain the petition is an open record. I'm pretty sure it's not open before the ruling is final (i.e., the petition is denied or the firearms are seized with the owner placed in the custody of the state).

 

I'm not aware of any state prosecuting false petitioners. In the Maryland case, the red flag law actually didn't allow for charging the wife. Illinois law allows prosecutors to charge a false petitioner with perjury. Whether any Illinois prosecutors actually would charge a false petitioner is debatable.

 

I'm also not familiar enough with civil law to know whether private individuals are precluded from suing someone for offering false testimony against them. It's credible, though. Imagine if everyone accused of a crime could sue everyone who testified against them, alleging false testimony. No one would ever want to testify. It's bad enough when defendants tamper with witnesses. It would be a whole different level it the system helped them do it.

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If it doesn't provide any punishment for abuse, or any consequences at all, that it's ex parte, and that you have to actually go ask for your guns back, all of that could actually work in our favor...in court at least. My understanding, it's a 14 day ex parte EOP that applies to firearms. Ex parte orders that don't allow for people to defend themselves (immediately, like the next day), result in suspension of gun rights, are BS and unconstitutional. That extends to these orders as well. Hold a hearing the next day. The accused has a right to confront the accuser, especially when fundamental rights are involved. Bring em in the next day (unless they're indisposed, like psych ward or something) and let them at least attempt to refute allegations made in the petition. Should be allowed to sue the person who knowingly files a bogus petition. Sue them into bankruptcy. I'm not sure if they have civil immunity but they shouldn't.

 

The lack of ANY accountability is what makes these unconstitutional. At least with an ex parte EOP, the petitioner can be dinged for perjury (never happens, but it's there) or other fraud upon the court for fabricating garbage. Here, no, nothing, you're encouraged to make **** up. Law enforcement isn't accountable, the people who make the reports aren't held to account for bogus reports. Should note that the burden on the petitioner is significant, proving "immediate and present danger" isn't easy, but I'm sure most judges will grant them based on flimsy evidence because they don't wanna be seen as the judge who let someone keep his/her guns and go on to commit a mass shooting.

 

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Especially in Illinois, where we supposedly got a "decent" gun confiscation law that protects the rights of firearm owners from abuse of this Constitutional-mocking travesty of legislation, can a person who is lied about, and thus legally libeled, their civil rights abridged, and their reputations very likely damaged by such an action against them being in the public record, NOT file a lawsuit in civil court against a person who lied about them being a threat in order to get a Red Flag gun confiscation action against them?

Some lawyers found a way to sue Remington for a shooting they did not commit.

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Some lawyers found a way to sue Remington for a shooting they did not commit.

Product liability case. I'm not saying Remington did or didn't, but there is evidence Remington had a flaw in their product and knew about it for decades and did basically nothing.

 

That might be two different issues.

 

I read Mike's post as being about Soto v Bushmaster, the Sandy Hook suit, and yours to be about the 700 trigger design.

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If someone is repeatedly subject to bogus orders then I can see a case. An as applied challenge, at least. I don't remember the case but it involved a guy and his nutty ex-wife who kept getting EOPs on him based on BS. They dismissed the orders but he still faced the exact same garbage so the appellate court (4th district IIRC) held that he still has standing to sue to challenge the constitutionality of ex parte OPs even though he got his guns back. Reasoning is that she can still do that to him so he's not in the clear.

 

I don't see how torts could apply to the petitioner but I'm not a super creative lawyer like the ones who managed to get Remington held liable for a shooting.

 

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That might be two different issues.

 

 

 

And neither or them have anything to do with red flag laws.

But it is relevant in that counsel for Soto was EXTREMELY creative which is what needs to happen here. It helps being assisted by incompetent judges who don't understand the PLCAA.

 

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I didn't say that their pleadings in Soto have any legal merit. They don't. It's laughable. Only that they just need to think outside the box. Attorneys sometimes go on autopilot. They get stuck and don't really think "abstractly" and use the same old pleadings instead of something that may have more merit. Just ask Todd about that.

 

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Alternatively someone with deep pockets could sue the living snot out of some little scumbag who falsely red flags them. Just plead a ton of torts, throw the kitchen sink at them. Since loser doesn't pay and the lawsuit wouldn't be frivolous, baseless, whatever you wanna call it. The defendant would still have to foot their own bill for legal expenses. The legal expenses could easily bankrupt someone. I don't advocate for financially destroying someone by exploiting the court system, but..it's an option.

 

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Don't screw around with it. *WHEN*, not if, people plan these out, go right to the U.S. Attorney's office and demand an investigation:

 

18 U.S. Code § 241. Conspiracy against rights

U.S. Code

Notes

Authorities (CFR)

prev | next

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

 

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured

 

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

 

https://www.law.cornell.edu/uscode/text/18/241

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I can see them making the argument against harsh penalties using the false notion that the threat of such would prevent folks from filing reports on someone who really needs to be reported. I don't buy that for a nano second. I still think the whole deal is unconstitutional due to the lack of due process and the deal of being guilty until you prove yourself innocent.

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JMHO - They shouldn't have to sue.

It is illegal to lie to police officers, and if someone red flags an individual falsely, the state's attorney should bring the charges.

It's lying to the court aka perjury so the judge would have to refer the person to the SA's office for investigation. In other words, not gonna happen. Florida judges have been granting 95% of these, or more, simply because they don't wanna be the person who gave a person their guns back then the person goes on a killing spree. They're not gonna go after the petitioner. Period. "Oh he was just trying to do what's right."

 

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Don't screw around with it. *WHEN*, not if, people plan these out, go right to the U.S. Attorney's office and demand an investigation:

 

18 U.S. Code § 241. Conspiracy against rights

U.S. Code

Notes

Authorities (CFR)

prev | next

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

 

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured

 

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

 

https://www.law.cornell.edu/uscode/text/18/241

 

Not only this, but the falsely accused victim should not only go for civil penalties for defamation and deprivation of rights, but also for court costs and legal fees. Since, after all, the court action would not have been necessary if the individual had not lied and acted with malicious intent to legally injure the victim.

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The major problem is that people don't like someone or don't like what someone is doing (owning, shooting guns, whatever) and that difference used to be respected. Life and let live. Now it isn't. I respect a lot of people who I really don't get along with. It isn't a big deal but now it's like if you don't assimilate into the collective then it's "you're a (insert histrionic nonsense here)." Women who take out OPs during divorce to screw with soon-to-be-ex. It's all so damn ugly can't people just stop being so petty?

 

Defamation with economic damages in the form of legal expenses. That could work. I'm not familiar with statute on that. How legal expenses to defend from a false accusation would be treated. If exempt or not. I'd like to think so but...legislators. Nexus between act and incursion of expenses (damages) is easy to establish.

 

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I dont think it would really matter anyway. If someone wants to screw you around it would be nearly impossible to prove they are lying. All they need to do is claim that you were talking about suicide or that you made a verbal threat against them. Go ahead and try to prove something didnt happen. That is why this law although perhaps well intention-ed it should be ruled unconstitutional. He-said she-said and your forever screwed. We need to carry a witness in our pocket 24-7. And if you get a left wing anti as a judge dont even bother throwing your money away defending yourself.

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