USA – -(Ammoland.com)- Welcome back to The Legal Brief, the show where we make it easy for you to understand gun laws here in the US. I’m your host Adam Kraut and today we are talking about the newly minted law in Oregon that might allow the police to confiscate your guns.
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Did he say confiscation, yea he said confiscation. Earlier in August, Oregon Governor Kate Brown signed Senate Bill 719 into law. The new law allows police, or a member of a subject’s family or household, to file an extreme risk protection order petition with the court which could lead to an order prohibiting firearms possession if it is believed they pose an imminent risk to themselves or others. And I’m sure none of you would be shocked but the bill was only supported by one Republican in the Senate and none in the house.
So what exactly does the new law do? As I said a moment ago, it allows for a police officer or a member of the subject’s family or household to file a petition with the court when they believe a person will pose an imminent risk to themselves or others. After a petition is filed, the court must hear the petition the same day or the next judicial business day. Those seeking a petition must write a sworn statement or give a sworn oral statement from themselves or any witness.
The Court will look to seven factors when considering a petition before it. These include: 1) history of suicide threats, attempts of suicide, or acts of violence by the person the petition is being sought against towards other people, 2) history of use, attempted use or threatened force, 3) previous convictions for a litany of things including driving under the influence, 4) evidence of recent use of a controlled substance, 5) violation of a previous restraining order, 6) this is the most troubling to me, evidence of an acquisition or attempted acquisition of a deadly weapon, and 7) any additional evidence the court considers reliable, including a statement by the person against whom the petition is sought.
Let’s talk about why number 6 is so troubling. The new law defines the term deadly weapon as any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury OR a firearm, whether loaded or unloaded. Essentially, it would appear that if a person filed a petition and stated that you recently acquired a firearm, you’d be at risk of having one of these petitions granted against you and losing your guns.
Worse yet, the initial hearing is held ex parte, meaning that the accused isn’t present and has no opportunity to present a defense against the accuser. Now the law does state that the court shall only issue an order if it finds by clear and convincing evidence that the person presents a risk of suicide or causing physical injury to another in the near future. For those that don’t know, the clear and convincing evidence standard is a medium burden, less than beyond a reasonable doubt but more than a preponderance of the evidence. Those that have an order issued against them can request a hearing to challenge that finding. I believe the saying is guilty until proven innocent. Right?
However, the law also states that an order issued shall prohibit the individual who it was issued against from having in their custody or control, owning, purchasing, possessing or receiving, or attempting to purchase or receive a deadly weapon. An individual has 24 hours to surrender all deadly weapons in their custody or control to law enforcement, a third party or a gun dealer. Which begs the question, where do kitchen knives fall in all of this nonsense? Additionally, if they have a concealed carry permit, that must be surrendered within 24 hours as well.
After the order is served on a person, they have 30 days to appeal it. A hearing must be held within 21 days of an appeal. Which means that a person might very well have to surrender their firearms prior to a hearing. If a person fails to appeal the order within that time frame, the order is confirmed by operation of law for a period of one year, unless it is terminated earlier. Again, this raises due process concerns as you now have a person who is being denied a constitutional right due to an ex parte hearing with no guarantee of a hearing for a period of up to 21 days after they appeal the decision. This means that if a person does not appeal the order until the last minute and a hearing isn’t granted until day 21, they could potentially go up to nearly two months without possession of their firearms having had no hearing.
At the hearing itself, the petitioner or the person seeking the order, has to again prove by clear and convincing evidence that the other person poses a threat. If they are successful, the order remains in effect for that one year period. If they are not, the court must immediately terminate the order. The law also allows for a person to request that the order terminate early and enables the requester of an order to renew it 90 days prior to the expiration of the previous one (requiring a hearing again).
Once an order has been terminated, if the deadly weapon is a firearm, they are returned to the individual after a background check has been conducted. As always, laws like this cause grave concern for the due process rights of those accused. In essence, a person could be accused of being a threat and be denied their Second Amendment rights while the courts sort it out. The only small sliver of silver lining is that a person who knowingly files a false petition against someone is guilty of a Class A Misdemeanor. Time will tell if they actually get prosecuted or not.
If you’re concerned about the rights of your fellow gun owners in Oregon, you need to share this video and let people know about this new law. Don’t forget to hit that like button and if you aren’t subscribed already, you better make that happen. Be sure to ring that bell so you don’t miss an episode. Check out my website adamkraut.com.
And as always thanks for watching!
Links for this episode:
Senate Bill 719 : https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/SB719
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