Any legislation that will infringe upon a citizen's individual liberties guaranteed under the 2A, 4A, 5A and 6A of the US Constitution and our state constitution such as ERPO's are fraught with pitfalls and will cause irreparable harm to the victim of an ERPO. Enacting imperfect legislation today and “fixing it” later ignores the potential negative outcomes that are far too dire to risk, even one tragic mistake is one mistake too many.
Elected representatives will craft ERPO legislation that does nothing to hold false accusers accountable for harming a law abiding citizen.
Law enforcement officers and judges will not be held to account for not doing their due diligence to ensure that they do not abridge and deprive a law abiding citizen of his rights without clear and unquestionable evidence.
The old adage that cops will do their job "and let a judge work it out later" must not be the default position for law enforcement.
The ERPO takes for granted that the law abiding citizen is dangerous simply for legally owning firearms and remains a danger until the law abiding citizen proves that he is not dangerous. Absence evidence of a crime, the state must not act to abridge and deprive a citizen of his property and his rights.
Ironically, the law abiding citizen is not a danger to himself or others if he owns a chainsaw, knives, a motor vehicle, a baseball bat, a Bic® lighter, a plastic 2 gallon container of gasoline or any other number of items that can be very effective lethal weapons. Nope, the law abiding citizen is only dangerous to himself or others simply because he legally owns a gun.
I understand that any citizen who is the victim of an ERPO will have his day in court. Likely in front of the very judge that ordered his property confiscated even though he did not commit any crimes.
Unfortunately that day in court will be long after the irreparable harm has been inflicted on the law abiding citizen, he will not be able to enjoy the remedy that he believes he is owed, and he must accept the remedy the state mandates he must enjoy...if he receives a remedy at all.
Perjury statutes provides the penalty for a false statement to the judge and I’ll wager that there is not a prosecutor in any state that will prosecute, vigorously and to the fullest extent of the law, the accuser for making a false claim. Let alone prosecuting a state actor for his bad acts. Will a judge “throw the book” at the accuser for lying in court? Prosecutors and judges will not do so when a cop perjures himself in court.
Example: The law abiding citizen now has an equally dreadful choice to make if he convinces the judge he is not a danger to himself or others;
1. Advise the prosecutor to seek a conviction under the applicable statutes for the accuser and if the accuser is immediate family member lose his guns if the accuser is convicted of a felony?
2. Advise the prosecutor or judge to show leniency, keep his guns and set the example that the consequences for filing a false ERPO are not meaningful.
3. Does the law abiding citizen seek a civil/criminal remedy from a family member at all?
In conclusion, ERPOs are a prior restraint on our 2A. I suspect that no elected representative would advocate for legislation that places a prior restraint on our 1A.