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Andrew Cuomo Pushes Bill That Would Make It Easy to Take Away People's Gun Rights

New York's governor favors "extreme risk protection orders" that could be obtained by a wide range of people based on little evidence.

Office of the GovernorOffice of the GovernorYesterday the New York State Assembly approved a bill authorizing "extreme risk protection orders" forbidding firearm possession by people who allegedly pose a threat to themselves or others. A11148, which Gov. Andrew Cuomo is pushing, is similar to laws enacted in recent years by California, Washington, and Florida, and it poses similar due process issues.

It is tempting to think that would-be murderers can be identified before they act on their homicidal impulses, in which case taking away their guns or stopping them from buying guns could save lives without impairing the Second Amendment rights of law-abiding Americans. But such predictions are apt to be wrong more often than not, meaning that innocent people who intend no harm to anyone will lose their constitutional rights, either temporarily or indefinitely. How frequently that happens depends on the rules for issuing extreme risk protection orders, a.k.a. gun violence restraining orders (GVROs). In writing those rules, there is an unavoidable tradeoff between protecting the rights of respondents and protecting the public from individuals who might (but probably won't) use guns to injure or kill people.

The New York bill, which still needs to be approved by the state Senate, allows a wide range of people to seek GVROs, including police officers, prosecutors, family or household members, and school employees such as guidance counselors, teachers, coaches, and administrators. It allows a judge to issue a temporary GVRO if he determines there is "probable cause to believe the respondent is likely to engage in conduct that would result in serious harm" to himself or others. That is a low threshold.

Probable cause, the requirement for a warrant or an arrest, is usually defined as a "fair probability"; it has no precise meaning, but in practice probabilities lower than 50 percent often count as "fair." If we assume that probable cause is equivalent to a 40 percent likelihood (a generous assumption), the bill requires a 40 percent chance that the respondent is "likely" to hurt himself or others, meaning the chance that he will do so is more than 50 percent. Multiplying 40 percent by 50 percent, we get the threshold for a GVRO: a 20 percent likelihood of harm. To put it another way, four out of five people who temporarily lose their Second Amendment rights will be harmless.

That's assuming judges carefully weigh probabilities. It seems more likely that they will err on the side of what seems to be caution. Given the low standard of proof and the scary prospect of being blamed for a respondent's violence, judges will tend to rubber-stamp applications for temporary GVROs, especially since at this stage the so-called respondent has no opportunity to respond.

A11148 requires a hearing within six business days, and that is when the respondent gets a chance to present his side of the case. If the judge decides there is "clear and convincing evidence" that the respondent is "likely" to hurt himself or someone else, he can issue a "final" GVRO that lasts up to a year. That standard is more demanding than the one for a temporary GVRO, but it still could amount to a probability of less than 50 percent. If clear and convincing evidence is equivalent to 75 percent confidence and 51 percent counts as "likely," for example, the odds that the subject of a final GVRO would actually have used a gun to harm himself or someone else might be something like 38 percent.

In practice, lower probabilities might suffice. A11148 says judges can consider "any evidence," including "evidence of recent or ongoing abuse of controlled substances or alcohol" or "evidence of recent acquisition [within the previous six months] of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor." The fact that someone smokes pot or takes a relative's pain pills hardly suggests he plans to murder anyone, but it would still be a strike against him in these proceedings. Even more remarkably, owning guns by itself counts as evidence that the guns should be taken away. Given those examples and a license to consider any other evidence, a judge who wants to take away a respondent's Second Amendment rights, if only to avoid criticism for failing to disarm someone who eventually kills people, will have little trouble doing so.

The GVRO can be renewed annually, and it can be lifted before it expires only if the respondent demonstrates by clear and convincing evidence "any change of circumstances that may justify a change to the order." In other words, the respondent has the burden of proving he is not likely to hurt himself or anyone else.

A law like this would give a long list of people, including ex-spouses, third cousins, current or former housemates, current or former lovers, and gym teachers, the power to harass someone who has pissed them off. The NRA worries that "teachers with differing political opinions or personal differences could initiate these court proceedings with little proof that an actual threat exists." But the bigger problem is likely to be people who sincerely but mistakenly believe that someone they know poses a danger to himself or others. The possibility that something horrible will happen if they do not act will loom large, while the downside of taking away someone's gun rights will seem trivial by comparison. The same will be true for the judges who evaluate these petitions.

Those incentives endanger the constitutional rights of morose misfits, prickly oddballs, and college students who say stupid stuff on the internet. This sort of law may or may not stymie anyone who actually poses a threat to public safety, but it certainly will hurt people who don't.

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  • ThomasD||

    Is it part of the Reason Template that when a Democrat threatens your liberty it's limited to a named individual, rather than ascribed to the whole party?

    Because it's not like Cuomo is an outlier from all the other Democrats with this effort.

  • damikesc||

    Hell, he's more moderate about it than a lot of other Dems.

  • BambiB||

    Which is like saying it's better to be stabbed than shot.
    I don't really have a problem with these laws - provided the person whose firearms are taken are paid $100,000 per firearm, $5000 per magazine/clip and $50 per round of ammunition confiscated if they are not proven guilty beyond a reasonable doubt of a crime that would otherwise deprive them of the right to keep and bear arms. That money must be paid and everything returned in pristine condition absent proof within 60 days. And 10% of the penalty must be paid out-of-pocket by the person making the false complaint - the rest by the state.

    If I were deprived of my RTKBA under these conditions, it would cost the state just south of $7 million... which would be fair.

  • Just Say'n||

    Reason is full ancap, but only on immigration.

  • Just Say'n||

    Everything else must bow to state authorities who always have good intentions

  • The Last American Hero||

    You forgot about the pot and ass sex.

  • Entropy Drehmaschine Void||

    "You forgot about the pot and ass sex."

    NEVER.

  • IceTrey||

    Not at all. As soon as all humans accept and live by the NAP we are completely in favor of open borders.

  • Zeb||

    Right. They never name names and always blame it on the whole party when it's republicans

    Now, in this article they didn't put a (D) after Cuomo's name. But do we really need to be told that Cuomo is a Democrat?
    Do you really have nothing better to add to the comments than to look for hints that Reason is secretly in the tank for Democrats?

  • Cynical Asshole||

    Do you really have nothing better to add to the comments than to look for hints that Reason is secretly in the tank for Democrats?

    That seems to apply to about half the commenters here.

  • $park¥ leftist poser||

    I think half is an overly conservative estimation.

  • Juice||

    overly conservative

    I see what you did there.

  • KevinP||

    No one wants to ban or confiscate guns. Ever! It's a crazy and paranoid idea!

    Survey: Majority of Democrats want to ban semi-automatics, half want to ban all guns


    Quotes:
    When pro-gun control advocates tell you they don't want to take your guns, they actually want to take your guns.

    A YouGov survey released this week shows a significant number of self-identified Democratic respondents support the idea of total gun confiscation.

    82 percent of Democrats say they favor a ban on semi-automatics, which would include not just rifles like the one used in the Feb. 14 Parkland massacre, but also most handguns.

    That's a hell of a ban.

    On the question: "Do you favor or oppose … [banning] the sale of all handguns, except those that are issued to law enforcement officers."

    If you can believe it, Democratic respondents were split on this question. Forty-four percent said they would support such a ban, while a oh-so-slightly larger 46 percent said they would oppose it.

    That's not all! The survey also found that Democratic respondents were loosely split on whether the Second Amendment ought to be repealed. Thirty-nine said they'd oppose it, while 41 percent said otherwise. The broader population, on the other hand, overwhelmingly opposed the idea by 60 percent to 21 percent.

  • Chipper Morning Baculum||

    Democrats are tearing our babies from our breasts!

  • Alcibiades||

    Before the Brady Campaign re-imagined itself and started advocating for "sensible" gun control it was called Handgun Control Inc. and had the explicitly stated mission and strategy of the total banning of the ownership of handguns.

    During the 1970's Handgun Control Inc. came, very, very close in Massachusetts of achieving that goal which, if they had won, they intended to replicate across the US:

    http://davekopel.org/2A/Mags/A.....-odds.html

  • TxJack 112||

    I would love for the Brady Campaign or any other anti gun group to clearly define "reasonable gun control". Everything I have ever heard them propose is nothing more than additional red tape intended to make the possession or use of a firearm almost impossible. Sorry but in my world, that point of view is far from reasonable.

  • TxJack 112||

    I agree it is true many if not all support confiscation. The only part of this issue they always seem to miss is they expect gun owners to simply quietly surrender them. When that didn't happen, then what? They think the police or military will simply turn on the people and take them which I find hilarious because as so often the case, they do not consider than many of those they expect to enforce the law, may simply say NO. Then what?

  • Juice||

    Is it part of the Reason Template that when a Democrat threatens your liberty it's limited to a named individual, rather than ascribed to the whole party?

    No, they just have Cuomo Derangement Syndrome.

  • TrickyVic (old school)||

    "" In other words, the respondent has the burden of proving he is not likely to hurt himself or anyone else"'

    And how does one do that?

  • TrickyVic (old school)||

    Of course if you only need to meet the same threshold that can take them from you, then all you need to do is find a family member to vouch for you.

  • damikesc||

    "Well, your honor, I'm a really bad shot. And I hate going outside"

  • BigChiefWahoo||

    And he has the burden of getting and paying for his own lawyer to defend him. The government has them on retainer, and wives/girlfriends, etc. can(probably) get legal aid lawyers. Think public defenders will be available for such respondents?

    I've seen too many of these ex parte restraining orders and orders of protection abused leaving the respondent to try and get his rights back.

    "What could go wrong?" But then, these respondents will be drawn from the unsympathetic classes (gun owners, etc.) and any actual injustices will be ignored by many of the people who hold themselves out as the great champions of civil rights and civil liberties

  • perlchpr||

    "evidence of recent acquisition [within the previous six months] of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor."

    Seriously, fuck these people.

  • Zeb||

    This is troubling. Where the hell is the Supreme court on this stuff?

  • Unicorn Abattoir||

    They're against it, as long as the gun in question is a flintlock musket manufactured no later than 1789.

    /Hihn

  • Cynical Asshole||

    Of course Hihn would believe that. He's the only person here old enough to actually remember using flintlock muskets.

  • KerryW||

    The NRA worries that "teachers with differing political opinions or personal differences could initiate these court proceedings with little proof that an actual threat exists." But the bigger problem is likely to be people who sincerely but mistakenly believe that someone they know poses a danger to himself or others.

    Given that the educational establishment goes bonkers over anything related to guns, I suspect that the former will be just as much a problem as the latter, if not more so.

  • NoVaNick||

    Don't know why anyone would choose to live in NY. I understand those who are so young and clueless to think that NYC is the be all and end all, but seriously, why would anyone else in their right mind stay there?

  • Zeb||

    Well, I'm sure some do because they believe in the Progressive dream and like shit like this. And NYC, despite the dipshits that run the place, is still a major center of commerce, entertainment and finance. And really is a pretty remarkable place if you like that sort of thing.

  • Rhywun||

    Why would anyone in their right mind live in northern Virginia? :)

  • Cynical Asshole||

    Why would anyone their right mind live anywhere except where I live?

  • $park¥ leftist poser||

    Are you inviting us all to your house? Because if you are I can be there by 6.

  • Cynical Asshole||

    No. And like a true libertarian, all trespassers will be shot. Survivors will be shot again.

  • Fist of Etiquette||

    No one wants to take away your guns.

  • Unicorn Abattoir||

    Is my shocked face on right? It doesn't feel like I'm wearing my shocked face.

  • Cynical Asshole||

    This is where I would normally show you my shocked face, but the damn thing's broken down again from overuse.

  • HGW xx/7||

    On the upside, at least they're finally being up-front about their intentions to repeal 2A. Consider this another case study for why we need an unfettered 1A in order to allow the communists to dig their own graves. (Preet, that is merely a metaphor.)

  • Jerryskids||

    That's assuming judges carefully weigh probabilities. It seems more likely that they will err on the side of what seems to be caution. Given the low standard of proof and the scary prospect of being blamed for a respondent's violence, judges will tend to rubber-stamp applications for temporary GVROs, especially since at this stage the so-called respondent has no opportunity to respond.

    If you're worried they might go too far now, wait until a year or so after this goes into effect and the murder rate doesn't drop. If you keep "the most likely to be dangerous" from getting their hands on guns and yet people still keep killing each other, the obvious conclusion to be drawn is that you're not casting your net wide enough to catch them all.

  • Number 2||

    New Jersey's new governor signed a bill just like this into law yesterday. Curiously, it does not take effect until fifteen months from now. They are obviously expecting a court challenge.

  • IceTrey||

    People demanding less liberty will never make sense to me.

  • Unable2Reason||

    Very easy to make sure they are careful. Every 60 days that the order is in effect that the target doesn't commit violence, he has to be paid $10,000 - adjusted for inflation annually of course.

  • perlchpr||

    This seems reasonable. Restrict someone's liberties before they've actually done anything wrong: pay for the privilege.

  • TxJack 112||

    Set the gun issue aside and look at the true implications of these laws. Basically, what these laws are intended to do is strip of person of their Constitutional rights based on the opinions of a third party. As is suggested, there are people with political agendas who will use this type of law to disarm others by making false allegations. Look at the number of men in universities, who have had their lives destroyed and been expelled from colleges due to rape allegations later proven to be 100% false. There is no reason to think that these laws will not be used the same way. My neighbor is zealous anti-gun and knows that I have a number of guns so now all they will need to do is go to the police and claim I have threatened them. If I find myself before an anti-gun judge, the chances I will be stripped of my 2nd amendment rights are extremely high. When you consider how many politicians, judges and police in states like NY are on the record saying they do not think people have a right to own a gun and that it is almost impossible to get a license to won one, makes the likelihood they will seize them at the first opportunity even higher. The march toward tyranny always begins with reasonable people agreeing to surrender their liberty for safety.

  • Whorton||

    Why does it allude consideration that by taking firearms away from someone, leaves them essentially unable to defend either themselves or anyone else in the home?

    Big difference between a 17 year old punk who posts a youtube video about gunning down schoolmates and a 45 year old man who is accused by a bad egg girlfriend of violence. I am aware of many cases of women, either ex-wives, girlfriends or casual acquaintances that have leveled such baseless charges out of spite.

    The law should err on the side of caution when it comes to rendering someone defenseless. As the old saying goes,

    Police, minutes away when seconds count.

    If even one person loses their life due to this policy, Cuomo should imprisoned for life without parole.

  • BILKER||

    "It is tempting to think that would-be murderers can be identified before they act on their homicidal impulses, " This statement shows how much liberal anti constitution law makers are influenced by hollywoo fiction. see the movie that uses "precon" to identify and preconvict citizens of various laws. GVROs for instance could convict the accusers also. Ref reporting a gang banger with MS-13 tattoed on his neck or forehead. given the gangs proclivities for avenging themselves on "snitches" which the accuser knows could happen would this not be putting one in harms way and therefore subject to GVRO themselves? it is a stupid law by even stupider law makers.
    BTW F*CK DENIRO

  • Rev. Arthur L. Kirkland||

    Absolutist gun nuts may be my favorite wingnuts.

    Religious kooks and racists can't be eliminated from contention, though.

    Fortunately, there is enough overlap that the distinction is not very important.

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