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


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#1 ChicagoRonin70

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Posted 07 August 2019 - 09:33 PM

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.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

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#2 BobPistol

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Posted 07 August 2019 - 09:44 PM

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.


The Second Amendment of the Constitution protects the rest.

#3 ChicagoRonin70

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Posted 07 August 2019 - 09:53 PM

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.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

 InX89li.jpg
 

 
 
 
 


#4 Euler

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Posted 07 August 2019 - 10:10 PM

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.
The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

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#5 Euler

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Posted 07 August 2019 - 10:23 PM

* sigh * [lag]

Is the site getting DOS'd or something?

Edited by Euler, 07 August 2019 - 10:25 PM.

The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

- Albert Camus, Resistance, Rebellion, and Death, 1960.


#6 ChicagoRonin70

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Posted 07 August 2019 - 10:33 PM

* sigh * [lag]

Is the site getting DOS'd or something?

 

Are you talking about the weird lagging and non-posting going on tonight? I have been having that happen, too.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

 InX89li.jpg
 

 
 
 
 


#7 RANDY

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Posted 08 August 2019 - 05:01 AM

I was having that issue with about half dozen sites last night and most were not gun related.   IL carry is still lagging for me.


One persons paranoia is another persons situational awareness.

Maybe it is time to remove immunity from all public officials and be able to hold them fully accountable for their actions.


#8 CILhunter

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Posted 08 August 2019 - 05:49 AM

I would think the harmed gun owner could have a cause of action for defamation.  Not sure what level of damages would be awarded, but in think they would meet the elements.



#9 skinnyb82

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Posted 08 August 2019 - 05:52 AM

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. Sent from my VS987 using Tapatalk
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#10 geo.ulrich

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Posted 08 August 2019 - 06:18 AM

I brought this point up before they voted on this law. The wording is entirely wrong. It should have been changed from "Maybe prosecuted to Shall be prosecuted for false filing"....

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#11 mikew

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Posted 08 August 2019 - 06:18 AM

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.

#12 FST_Kent

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Posted 08 August 2019 - 08:57 AM

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.



#13 mauserme

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Posted 08 August 2019 - 09:03 AM

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.

#14 skinnyb82

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Posted 08 August 2019 - 09:19 AM

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. Sent from my VS987 using Tapatalk
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#15 FST_Kent

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Posted 08 August 2019 - 09:23 AM

That might be two different issues.

 

 

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



#16 skinnyb82

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Posted 08 August 2019 - 09:49 AM

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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#17 FST_Kent

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Posted 08 August 2019 - 09:55 AM

Occasionally creative works, but most competent attorneys never go that route.



#18 skinnyb82

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Posted 08 August 2019 - 10:29 AM

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. Sent from my VS987 using Tapatalk
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#19 FST_Kent

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Posted 08 August 2019 - 10:47 AM

I know a little.  My family is 3 generations in the legal business going back to the 1920's.  Being around attorney's, state's attorney's, and judges is a normal day for me.

 

I have an article framed from 1950 that appeared in the Chicago Tribune where my grandfather as the county judge, which don't exist anymore, questions the authority of the ISP in conducting raids and confiscating equipment.  Interesting the Tribune sent a reporter down to my little town back then.

 

I think about his statements then and how they might relate now in the case of the ISP going door to door in a county with a 2nd Amendment resolution.



#20 skinnyb82

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Posted 08 August 2019 - 02:46 PM

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. Sent from my VS987 using Tapatalk
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#21 GWBH

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Posted 08 August 2019 - 03:16 PM

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.


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#22 Euler

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Posted 08 August 2019 - 03:31 PM

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.


Technically, filing a false petition is lying to a judge, not to a cop.
The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.

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#23 speedbump

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Posted 08 August 2019 - 03:36 PM

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.corn...ode/text/18/241

Edited by speedbump, 08 August 2019 - 03:37 PM.

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#24 ragsbo

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Posted 08 August 2019 - 03:58 PM

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.



#25 skinnyb82

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Posted 08 August 2019 - 04:05 PM

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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#26 FST_Kent

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Posted 08 August 2019 - 05:54 PM

Easier to do in some counties than others, but it's never a bad idea to get to know your SA and judges.

 

I'm a unique example, but my family has 3 generations of history in the courthouse.  I'm not a part of it and most people in this little county don't know me, but all the somebodies do and I make sure they have a favorable opinion of me.  So much so, 2 of our judges may even tell you I'm an annoying asshole, but they still like me, respect me, believe me, etc, etc.

 

When I finally do move from IL, it will be to a much more rural community and I will get to know the same people.on a variety of levels like I do now.



#27 ChicagoRonin70

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Posted 08 August 2019 - 07:13 PM

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.corn...ode/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.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

 InX89li.jpg
 

 
 
 
 


#28 skinnyb82

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Posted 08 August 2019 - 07:21 PM

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. Sent from my VS987 using Tapatalk

Edited by skinnyb82, 08 August 2019 - 07:25 PM.

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#29 Gamma

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Posted 08 August 2019 - 09:46 PM

Since when has there been any consequences for people abusing protection orders? These kind of things are an even lower bar than protection orders. No one will ever face consequences, other than the people falsely accused.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#30 mikew

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Posted 08 August 2019 - 09:57 PM

 

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.

 

Yes.






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