Red Flag legislation: A comprehensive review for NY and nation – part 5

Vote No

August 20, 2018 – Vestal, NY – The following is the full transcript of a speech, made by M V Consulting Inc and Liberty First Foundation NY Chapter president Michael “Vass” Vasquez to the members of the Americans for Restoring the Constitution (AFRTC) and the general public at the Vestal Public Library. The speech is an in-depth review of Red Flag legislation in New York State and across the nation. Due to the length of the details and data, compiled from over 50 sources and growing in an on-going investigation, the speech is being split into 8 parts. Due to time constraints, the actual live presentation truncated portions of the original documentation, without alteration of the data, details, or context.

Any news media organization that wishes to receive this presentation in its original form or reprint these articles, including all public sources, in order to address this growing trend of legislation and inform the public of all aspects of this legislation, is given full rights to do so. To receive a copy of the original form, please contact us.

Amended (due to time constraints) speech at Vestal Public Library:

Q & A with audience after the presentation:

This may be why when I asked State Senator Fred Akshar to comment on this he provided the following comment,
NY 52nd District State Senator Fred Akshar

“I’m not supportive of the Red Flag bill in its current form because of how broadly it’s worded. I’m open to having a discussion about taking a common-sense approach to background checks, ensuring that any loophole in existing law is closed, and addressing mental health concerns and waiting periods in relation to gun ownership. I will vote no on each of the bills in question in their current form.”

Yet, Rep. John Katko recently stated that he plans to propose a Red Flag Bill to Congress in the next session. He reiterated the same flawed logic as stated by each Assemblymember. Flaws I will go into in a moment. He said,
Rep. John Katko

“The bill wouldn’t allow officers to confiscate guns without a warrant. While it protects the Second Amendment rights of gun owners, it also ensures family members or law enforcement can request an order from a judge to remove guns if an individual poses a serious threat to themselves or other people.”

The reasons for the Red Flag legislation remain consistent in each story and State that it is proposed. A need to protect the public and eliminate a threat before it becomes an actual danger. They point to situations like Parkland Florida, saying if action was taken lives would have been saved. They claim that situations like that of the recent New Mexico camp created to train children for school shootings, and where a child was killed due to lack of medical treatment (due to religious reasons) would be effectively countered by a Red Flag law.

But Red Flag Legislation, in every form in each State that we have been able to identify, violate the Judge Friendly guidelines of Due Process mentioned previously. They violate the unbiased tribunal in that there is an accuser making an allegation of danger, and a court evaluating that danger without a crime. It is a subjective determination of danger, without empirical fact, about an uncertain future outcome.

There is no notice provided to the accused, as Red Flag legislation can and are almost always done as an Ex Parte action. Meaning that the accused is never notified of the proceedings. In addition, because it is Ex Parte, there is no one to guarantee or even attempt to ensure the Rights of the accused. Nor is the opportunity to defend the accused a guarantee or even considered.

Evidence cannot be produced by the accused to defend themselves, until AFTER the fact. Evidence in favor of the Red Flag action, depending on the exact legislation can be a vague and indefensible as buying a hammer within 6 months. The common term, or its equivalent, of dangerous instruments can be defined as literally anything, especially considering the enormous category of items used to commit murder as recorded by the FBI and CDC.

There is no guarantee, as this is an Ex Parte action based on an accusation of individuals that may not, and commonly do not, have legal or law enforcement backgrounds, that a decision will be reached based on actual evidence. In fact the initiating cause is by definition an emotional determination of potential future actions, which means evidence cannot exist. This is further complicated by the fact that legal representation for the accused not only is not an option, it cannot be an essential fact of the process UNTIL after action has been taken.

Thus 8 out for 10 requirements stated by Judge Friendly for compliance with Due Process are violated by Red Flag legislation. Yet, proponents would like us to believe that after the fact representation by a lawyer, after action opportunity to review and refute evidence, and retro-active defense of the accused is Due Process. While I agree with Greg Pruett that the movie Minority Report details a great example of the flaw with retro-active adjudication, there is another example that can be made to show this with clarity.

If we applied these same principles to any other law, would it stand in a court and/or would the public accept it? Thus, an individual is standing on the sidewalk in front of a bank. The individual looks down the road one way and then the other, while shifting side to side. A person at a window observes this, calls the court, and has the person detained for bank robbery – BEFORE action has been taken. The now detained citizen has the right to go to court and fight the incarceration for an action where no crime has occurred. Is this Due Process? I think we all agree. The same example and outcome can be reached with presumption of personal assault, or any other crime you can consider.

Punitive action, prior to any crime, is in fact an accusation of criminality that is unlawful and damaging. There can be no Due Process after the fact, with no crime committed at any point.

Of course it can be said that I’m not a lawyer so I don’t understand the law. Thus I spoke with several lawyers on this matter, though some asked not to be named as this is somewhat political and their answers could cause a backlash against them. Others, including Attorney Dorollo Nixon, were willing to be named. I provided the example of Bill A11148, which was passed by the Assembly and is pending a vote in the NY State Senate. I asked the questions posed in what I have covered so far, including this:
Attorney Dorollo Nixon Jr

“Given that in ex parte decisions that result in a warrant and action, does it violate Due Process that a person is de facto convicted and punished without a crime being committed and without prior court representation

Does the lack of provisions, in the case that the ERPO is found to have been incorrect in application, violate Due Process or other law.

Answers: Answer to Question 2 = Yes it violates a person’s due process rights to have their personal property which was not involved in a crime and/or which was not on his person when he was arrested for a crime seized by the government.
Answer to Question 3 = Since the application is based on a subjective belief, how can the application have been wrongly made? If you are referring to circumstances where an application is erroneously granted, that would be no less violative of Due Process than properly granting an ERPO under the provisions of Assembly Bill 11148. We made a mistake and unlawfully took your property is no better than We did not make a mistake and unlawfully took your property.”

So I think the case has been made that in all occasions, Red Flag or ERPO legislation violates Due Process as a core element of the legislation. As a consequence, the 2nd Amendment, 4th Amendment, and 14th Amendment are directly affected and violated as well. But the consequences continue both directly and indirectly.

About the Author

Michael Vass
Born in 1968, a political commentator for over a decade. Has traveled the U.S. and lived in Moscow and Tsblisi, A former stockbroker and 2014 Congressional candidate. Passionate about politics with emphasis on 1st and 2nd Amendments.

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