With all things the devil is in the details and when we look at the details of red flag laws we find they give arbitrary power of your constitutional rights to a government official which is bound to abuse that power. As I am a, now retired, career law enforcement officer, a parental rights activist for over 25 years, and a victim of these red flag laws I can speak to the abuses I’ve both seen and experienced. Here’s my personal horror story which is not unique and my humble opinion on the matter.
I was involved in a bitter 3 year custody battle with my soon to be ex wife (late 1990s). In an effort to gain an advantage she, obviously coached, resorted to filing abuse petitions and in many of them she claimed I threatened her by “reaching back on his waist where he carries his off duty gun.” Luckily for me my neighbors witnessed many of the incidents and testified in family court on my behalf resulting in an order of protection for me against her abusive instigating behavior.
Next she resorted to withholding my parenting time with my children. Due to bias in the system police do not enforce custody orders for non custodial parents even though it is a violation of penal codes and they refer you back to family court for resolution. On one occasion I arrived at the head of her driveway as she had just pulled in with the children and standing in the road calmly demanded my parenting time. She exited the vehicle and left the children in the car with her boyfriend announcing she was going to call the police to which I responded “good, I’ll wait right here in the road.” As the State Trooper arrived she came back out I began walking towards the children expecting the usual mediation and referral back to family court.
I was three steps onto the driveway when I was grabbed by the Trooper and slammed onto the back of her car as my ex quickly spirited the children into the house. The Trooper yelled, “where do you keep your gun” to which I responded it was in an ankle holster and I lifted my leg so he could take possession of the firearm. I then had a few heated words with that Trooper regarding the excessive force in lieu of verbal discussion or commands and my treatment by him. A second Trooper arrived and advised we could go to the barracks which was 5 minutes away and “straighten things out.” I had filed multiple custodial interference complaints at this barracks over the months only to be referred back to family court and thought the same would occur.
Supervisors from my agency began to arrive and I was sitting in the Troopers office with one of them and several Troopers discussing the flawed system when the original Trooper arrived and began to yell at me that I had no right to my children and I was harassing my ex, at which point I advised I would make no statements without my attorney. The Trooper had taken possession of my wallet and he left the office but shortly returned and handed me two appearance tickets for minor violations, trespass and simple harassment, and he threw my wallet at me which I noted was missing my badge and police ID. So I went to my supervisor and asked what my status was and he said suspended without pay.
As I had my court appearance tickets and suspected my pistol was being held as “evidence” I started to leave as the walk from there to my girlfriends house was only 5 minutes. I was grabbed at the back door and told that they had decided to take me to immediate arraignment and off I went to see the Judge. I was “lucky” he said as he wasn’t going to set bail but he did issue an order of protection ,among other things, seizing my firearms. My supervisor then drove me to my house in an adjoining county and took possession of all my work and personal firearms and then to my girlfriends house to get firearms I leave there as that was where I stayed when not working.
Here’s where the ironic hypocrisy begins. My girlfriend was a licensed pistol permit holder and kept a pistol in both night stands on either side of the bed. Additionally her son was a hunter and kept long guns in the house which were readily available to me. I had managed to not be arrested at the 10 plus times she said I “reached to his waist where he keeps his off duty gun” due to insufficient evidence and in 3 years of child custody litigation hadn’t laid a hand on her, much less threatened her but now I was a threat to her and society, the prior false allegations ignored. Amazingly I didn’t take possession of these readily available firearms and go on a rampage. I’m sure the order made me not do it.
I had a copy of my ex’s statement which was included in the charging documents. She claimed I was screaming and swearing and “reached around to my waist where I keep my off duty gun” and she feared I was going to grab it so she ran to call the police. Unknown to her or the Troopers was the fact I recorded every interaction I had with her and this incident was no different and I had an audio recording rebutting her allegations of verbal abuse and the fact my off duty pistol was in an ankle holster and was where I normally carried it undermined the argument I reached for a gun on my waist. I demanded a hearing on the seizure of my firearms and a speedy trial in 30 days which I was entitled to by law but was given neither and in fact had it postponed for month’s.
I scraped together my last $2500 and hired a criminal attorney. We arrived at the court date, an afternoon trial with me the only case docketed. As I was charged with only simple violations I was NOT entitled to a jury trial, the one case docketing certain to keep the process in the dark. I was left in the hall as my attorney went into a room with the Judge, the Assistant District Attorney for that Town, the Assistant District Attorney for Domestic Violence, and my ex. He came back out, visibly shaken, and advised when he told the Judge about the recording he ruled it inadmissible as “there was no chain of custody,” that if I demanded a trial and “if” found guilty he would sentence me to jail time and issue a lifetime order of protection. I had heard through my law enforcement contacts that the Judge was going to sentence me to consecutive 15 day sentences (30 days the maximum) and that I was to not be segregated from the regular population as was customary so I believed he would follow through on his threat.
My attorney advised I could win on appeal but it would cost between $5000 and $10,000 and take about 4 years. I advised him the lifetime order of protection meant I would be out of work and additionally incarceration, and this incident, would be considered a “voluntary” reduction in income and I would be jailed after 6 months for failure to pay child support waiting for the criminal appeal. I told him to cut any deal which would put me back to work. He told me my ex was incessant that I not be given a deal and when she was told that would mean no more child support payments from me she stated she didn’t care and wanted to see me destroyed. He apologized for not being able to stop the worst injustice he had seen in his long legal career, I’ve never seen anyone get as effed as you”, he said and went back in to see if he could cut a deal.
Back out he advised that the Judge had called my agencies Colonel in charge of uniform personnel to OK the deal and I was to be given a one year order of protection and I would be allowed to carry my duty firearm while working but no long guns or shotguns while on duty. I was to plead guilty to trespass and pay a $50 fine. My personal firearms would remain seized. As a condition of employment I had to maintain a home office and I was to leave my issued sidearm at my home office and not to carry a firearm when off duty. Given my girlfriends possession of firearms this in effect meant I was only unarmed from the time I left my home and travelled to hers. Amazingly the order “prevented” me from driving in my police car with my duty weapon and murdering my ex, I expect as I had my uniform on I was an upstanding member of society but when I took it off I turned into a dangerous threat to society. That’s it, I’m sure.
In divorce court I asked that exchanges of the children occur at a public location which could be monitored by neutral parties and was denied. If you violate an order of protection it is a felony and so I couldn’t risk picking up the children and having the false allegation repeated so in effect, the total exclusion of me from my children she had been fighting for three years to achieve was achieved by making these multiple false allegations when one finally stuck. Bankrupt, reputation destroyed, career almost ruined, and faced with a bad choice of returning to work and losing my children or the worse choice of going to jail and losing my children I chose bad over worse.
My suspension without pay from work was for 60 days, conduct unbecoming an officer for arguing with the Trooper. I was out of work for 4 month’s on the order of protection so when they offered to “take 5 days” I said the 60 days should be concurrent with the 4 month’s. When it went to an arbitration hearing the union attorney felt I had a very good argument but I warned him that they would play the domestic abuser card and they did. The hearing examiner split the difference and ordered a 30 days suspension without pay. Once the red flag is thrown it’ll be thrown time and time again when needed.
Those of us who have suffered in family and matrimonial courts have been sounding the alarm about these abuses of due process and violations of civil rights to no avail. Petitions for orders of protection are filed Ex Parte, meaning by one party without the defendant present. Judges think abundance of caution as no Judge wants to be the one who didn’t issue an order and then have something bad happen so fearing blame and having no rebuttal to the charges they almost never deny the order. Once the order is served any anger or indignation at the violation of your rights will be used as evidence to show you are angry and a danger. You suffer the costs of attorneys to retain your God given rights and the system will drag on painstakingly slow as you suffer financially, emotionally, and reputation-ally.
If you think it can’t happen to you look up “Cowboy’s for Trump” and the plight of their leader Couy Griffin, a New Mexico elected official, who “entered a restricted area” at the Capitol protest on Jan. 6 and held a prayer session outside of the Capitol Building. Regardless how you feel about his political views and alleged simple trespass on restricted capitol grounds his physical arrest and incarceration for 3 weeks with no bail seems extreme on its face. And when he was finally released, RED FLAG, his right to possess firearms was revoked in spite of the fact he has not been violent. When he received multiple death threats the Judge allowed him to possess firearms in his home but not his car or in public. If he’s not a danger to violate that order then the order itself is unnecessary and additionally threats against him are valid away from or in the home.
The view that an order of protection prevents violence flies idiotic in the face of reality as the violent acts are felonies and anyone who is willing to commit violence and face years in prison isn’t worried about violating an order which has less than a one year term. Orders “preventing” the possession of firearms similarly only work on people who legally own firearms and weren’t going to commit acts of violence in the first place. “Red Flag” is a government misnomer for “violate due process” under the guise of government “protecting” society by violating the civil rights of an individual who has not committed any crime and has not been allowed to rebut the allegations against him. Any angry exaggerated excited utterance or public post not meant to be taken literally, such as “Communists should be taken out and shot,” opens the door to anyone with a grudge, or government themselves, to RED FLAG the persons civil rights.
The fathers rights and parental rights movement dates back to the 1960s where advocates have since then and to today been complaining about the lack of due process, ex parte allegations taken as fact (Red Flag), unnecessary orders of protection issued, and individual civil rights violated on a daily basis. Legislators create misnamed bills “to protect the public” which in effect undermine civil rights and due process. Executive branches overcharge, incarcerate with excessive or no bail, issue ex parte orders of protection, and use overbearing and unnecessary police tactics to intimidate citizens. Judicial accountability is an area ignored by most of the public, courts are now where civil rights go to die. Our lack of due diligence to protecting civil rights under the guise of protecting the public and “preventing” crime is now undermining liberty for all of us. Us parental rights activists would like to welcome the rest of America to the unconstitutional nightmare.
James Hays,
Lt. (Ret) NY En-Con Police, past President of the Coalition of Fathers and Families NY, Inc. (FaFNY) and past Director of the NY Men’s Action Network (NYMAN)