Posts Tagged fifth amendment

Redflags The New Redcoats

From The Truth About Guns:

The First, Second, Fourth, Fifth, Sixth, and Fourteenth Amendments are all impacted by proposed red flag laws. We know what these laws look like. Where implemented, these laws generally allow the removal of firearms from someone’s home, without notice or an opportunity for the gun owner to be heard in court in advance of the removal, based on the allegations of a third party.

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Red Flag Fallout In Colorado

From Reason:

Commonly referred to as a “red flag law,” this type of legislation is part of a state-by-state strategy pushed by gun control activists who were galvanized by the 2018 shooting at Stoneman Douglas High School in Parkland, Florida. Prior to the Parkland shooting, five states had some sort of red flag law on the books; not including H.B. 1177, there are now 14.

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“Red Flag” Laws Rigged Against Gun Owners

From Reason:

Depending on what counts as a “significant risk,” the probability that the subject of a temporary order actually would have used a gun to hurt himself or someone else may be quite low. If 10 percent is significant, for example, that probability might be around 5 percent (51 percent times 10 percent). So even if judges are weighing the evidence with such precision, they will be taking away the Second Amendment rights of people who almost certainly would not have committed suicide or murder.

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What To Do During A “Red Flag Order”

From The Truth About Guns:

These “extreme risk protection orders” or “gun violence restraining orders” — whatever they may be called in your state — while grossly unconstitutional, are temporary. Every state where this is law has a specified hearing date, usually about ten to fourteen days after confiscation. At that hearing, the gun owner who’s been temporarily stripped of his or her gun rights has an opportunity to contest the initial complaint in front of a judge. If the judge adjudicates the complaint as unfounded, your rights are restored and you’ll soon get your guns back.

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Bump Stock Manufacturers Sue Feds

From Guns.com:

Two former retailers of now-banned bump stock devices are suing the federal government for damages they incurred after having to destroy their inventory.
The plaintiffs include two companies, Minnesota’s Modern Sportsman and Texas-based RW Arms, as well as two individuals, Mark Maxwell and Michael Stewart, who in all lost 74,995 bump stocks to the ban which took effect late last month. The case, filed in a Washington, D.C. federal court, argues that the ban’s requirement that bump-stocks be surrendered or destroyed within a 90-day period, with no opportunity for registration, violated the Takings Clause of the Fifth Amendment which states that private property can’t be taken for public use without compensation.

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“Red Flag” Laws A Bad Idea

From The Washington Examiner:

But the laws are more complicated than usually discussed in the press. Depending upon the state, anyone from a family member, intimate partner, ex, house or apartment mates, or police can file a complaint. Under Colorado’s proposed law, anyone can make a phone call to the police. They don’t even have to be living in the state. There is no hearing. All the judge has before them is the statement of concern.

Fourteen states have now adopted these laws. Nine states adopted these laws last year after Parkland. Colorado will be the second state this year to adopt the law. U.S. Sens. Dianne Feinstein, California Democrat, and Marco Rubio, Florida Republican, have similar laws that they are pushing.

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Police Can’t Use Biometrics To Unlock Phones

From Reason:

In an opinion published January 10, a federal magistrate judge in Oakland, California, ruled that the Fifth Amendment’s protections against self-incrimination extend to phones equipped with biometric locks. Federal police can search a residence, the court ruled, but may not force anyone present during a search to hold their finger, thumb, iris, or other body part up against a phone to try to unlock it.

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Gov’t Settles Case With Defense Distributed

From Reason:

The Justice Department has reached a settlement with the Second Amendment Foundation and Defense Distributed, a collective that organizes, promotes, and distributes technologies to help home gun-makers. Under the agreement, which resolved a suit filed by the two groups in 2015, Americans may “access, discuss, use, reproduce or otherwise benefit from the technical data” that the government had previously ordered Defense Distributed to cease distributing.

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The Apple Case Could Violate The Thirteenth Amendment

If Apple is compelled to create a program that doesn’t exist for the government, that would be a type of slavery.

From Reason.com:

Instead, the DOJ has obtained the most unique search warrant I have ever seen in 40 years of examining them. Here, the DOJ has persuaded a judge to issue a search warrant for A THING THAT DOES NOT EXIST, by forcing Apple to create a key that the FBI is incapable of creating.

There is no authority for the government to compel a nonparty to its case to do its work, against the nonparty’s will, and against profound constitutional values. Essentially, the DOJ wants Apple to hack into its own computer product, thereby telling anyone who can access the key how to do the same.

If the courts conscripted Apple to work for the government and thereby destroy or diminish its own product, the decision would constitute a form of slavery, which is prohibited by our values and by the Thirteenth Amendment.

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California Passes Law That Ignores Due Process, Strips Guns

From Southern California Public Radio:

Family members who believe a loved one poses a danger to themselves or others will be able to ask police to seek a temporary “gun violence” restraining order from a judge beginning Jan. 1. The order would allow police to seize the person’s guns for 21 days.

Under the new law, a restraining order could be issued without prior knowledge of the person. In other words, a judge could issue the order without ever hearing from the person in question, if there are reasonable grounds to believe the person is a threat based on accounts from the family and police.

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Cody Wilson Versus The United States

From Fox News:

The (15) members of Congress, led by Rep. Thomas Massie, R-Kent., signed onto an amicus brief in the Fifth Circuit Court of Appeals, where Texas inventor Cody Wilson is fighting a lower court ruling in favor of the government agency. The State Department in 2013, citing a law allowing it to regulate international arms trafficking, blocked Wilson and his nonprofit group Defense Distributed from posting technical data for 3-D printing of legal handguns.

Wilson has received more “friend of the court” backup from policy think tank Cato Institute and various free speech organizations.

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Ares Armor vs ATF

From Ammoland.com:

The United States District Court for the Southern District of California ruled against Ares Armor in its lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives in a decision filed Thursday. United States District Judge Janis L. Sammartino, a George W. Bush appointee, ordered dismissal of plaintiff claims.

Ares claimed First, Second and Fifth Amendment violations by ATF, as well as a violation of the Firearm Owners Protection Act.  ATF argued for dismissal, citing “lack of subject matter jurisdiction …  [and] failure to state a claim,” as well as for summary judgment on the claim by Ares that classifying the part as a firearm was “arbitrary.”

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Forced Hard Drive Decryption Is Unconstitutional, Appeals Court Rules

From: Threat Level

Forcing a criminal suspect to decrypt hard drives so their contents can be used by prosecutors is a breach of the Fifth Amendment right against compelled self-incrimination, a federal appeals court ruled Thursday.

It was the nation’s first appellate court to issue such a finding. And the outcome comes a day after a different federal appeals court refused to entertain an appeal from another defendant ordered by a lower federal court to decrypt a hard drive by month’s end.

Thursday’s decision by the 11th U.S. Circuit Court of Appeals said that an encrypted hard drive is akin to a combination to a safe, and is off limits, because compelling the unlocking of either of them is the equivalent of forcing testimony.

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Woman Ordered To Give Up Password

From Wired.com:

The authorities seized the Toshiba laptop from defendant Ramona Fricosu in 2010 with a court warrant while investigating alleged mortgage fraud. Ruling that the woman’s Fifth Amendment rights against compelled self-incrimination would not be breached, U.S. District Judge Robert Blackburn ordered the woman in January to decrypt the laptop.

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