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Wisconsin state Assembly Speaker Robin Vos, R-Rochester, has a new take on how red-flag gun laws work.
Generally speaking, the laws allow judges to temporarily take guns away from people who are deemed to be a danger to themselves or others. Republicans and Democrats in the state Legislature have been widely divided on a bill that would create such a law in Wisconsin.
Gov. Tony Evers, a Democrat, called the Legislature into special session to consider a red-flag law proposal and a separate measure expanding background checks to cover all gun sales, but the GOP quickly adjourned the session without taking action on either.
In a Nov. 10, 2019 appearance on WISN-TV’s UpFront, Vos told host Adrienne Pedersen:
"What (Democrats) wanted to do was say, ‘I think you might do something so I’m going to take away your gun and make you prove you wouldn’t do it.’ "
In other words, the claim is the proposed law would allow a gun to be taken away, and then put the burden of proof on the gun owner to show they are not a threat in order to get the gun back.
But that’s counter to one of the basic foundations of the U.S. legal system.
It would be akin to saying someone charged with a crime has to prove their innocence -- not that a prosecutor has to convince a judge or jury of the defendant’s guilt.
Is Vos right?
Let’s dig in.
Defense misses the mark
Asked for backup, Vos spokeswoman Kit Beyer pointed to the language of the proposed bill that says once an injunction is issued, a judge can vacate it "if the respondent demonstrates, by clear and convincing evidence, that the respondent is no longer substantially likely to injure the respondent or another person if the respondent possesses a firearm."
The language is accurate, but Vos is misapplying it.
He argues this standard applies to the process from the beginning, when the language actually refers to a step later in the process, when a gun owner can ask the judge to reconsider the original decision.
Joseph Blocher, a law professor at Duke University, said the burden of proof is always with the petitioner when it comes to seeking red-flag seizures.
"What that burden is -- ‘clear and convincing’ or ‘preponderance of the evidence’ -- varies state by state and depending on whether it’s a temporary ex parte order or a final order," Blocher told PolitiFact Wisconsin. "But in all cases, a judge has to be persuaded of the risk."
Indeed, the proposal from Evers would allow guns to be seized if a judge finds "reasonable grounds that the respondent is substantially likely" to harm themselves or others.
How would it work?
The process varies a bit state-to-state, but always begins with a petition to a court that argues an individual is a danger to himself (or herself) or others. Such a petition typically comes from law enforcement officials, but may also come from family members or friends.
Under Evers’ proposal, a judge or court commissioner would hear the request and then decide whether to issue a preliminary order without first having to notify or hear from the gun owner. A temporary order is then put in place for up to 14 days.
So, there would be a short period where a gun could be taken before an owner has a say, but with the burden placed on the other party.
A judge would then schedule a second hearing to make a final determination. The gun owner would have a chance to be present for this hearing. This is where whomever filed the original petition would make their case. The burden would be on them to convince the judge the gun owner was a danger.
The final order would be valid for up to one year, though requests could be made to extend it. Additionally, the gun owner could ask the court for an early end to the order
This is the step the language Vos cited actually refers to. It is then -- when a gun owner is seeking an early end to an order -- that the burden of proof would fall on the gun owner.
Laws are relatively new
The first red-flag law was put in place in Connecticut in 1990, but it wasn’t until 2005 that the second law was approved in Indiana. Following the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., many other states passed similar laws.
Now, at least 17 states and Washington D.C. have a red-flag law in place.
Each state allows law enforcement to seek the removal of guns, while 12 states also allow family or household members to do so.
A handful of states also allow petitions from medical professionals, colleagues or school officials, according to Giffords Law Center to Prevent Gun Violence, a research and gun control advocacy organization.
There are already several spots in Wisconsin law that relate to when guns can be taken.
Under current law, a person is prohibited from having guns or must surrender their firearms if they’re "subject to a domestic abuse injunction, a child abuse injunction, or, in certain cases, a harassment or an individuals-at-risk injunction."
If the person surrenders a firearm because of one of those convictions, the firearm can’t be returned to them until a court determines that the injunction has been vacated or has expired, according to a November 2019 analysis by the Legislative Reference Bureau.
The law also says people must surrender their firearms as a result of certain proceedings, such as mental health commitments and restraining orders.
Vos said of red-flag laws: "What they wanted to do was say I think you might do something so I’m going to take away your gun and make you prove you wouldn’t do it."
The laws in effect now, and the proposal in Wisconsin, would allow guns to be taken away temporarily, until a full court hearing is held. However, Vos is far off when it comes to where the burden of proof falls when a judge is considering a seizure request.
Experts say it would fall on the person seeking the seizure -- not the gun owner.
We rate this claim Mostly False.
WISN-TV, ‘UPFRONT’ recap: Assembly Speaker says governor is playing politics with special session, Nov. 10, 2019
PolitiFact, Do red flag laws allow gun seizure without a judge’s OK?, Oct. 28, 2019
Wisconsin Legislative Council, Firearm Possession "Red Flag" laws, issue brief, Oct. 2019
PolitiFact, Wisconsin firearms coalition misfires with claim against Evers, Kaul and Vos, Jan. 29, 2019
Giffords Law Center, ERPO procedures by state, Sept. 10, 2019
Gov. Tony Evers, proposed red flag law (LRB-4700)
E-mail exchange with Joseph Blocher, law professor at Duke University, Nov. 26, 2019
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