Currently, restraining orders are practically approved automatically by judges. Thirty days later, the subject of the order has a chance to defend themselves in court, telling the judge why the order should not remain in force for a full year. Despite there being zero due process, cops confiscate all firearms, ammunition, and other weapons from the person the order is filed against. Due to other laws, procedures, and practices by the government, it could take substantial time and money for the person to ever get their property back from the police. Some people never see their firearms again. State law also allows police to charge exorbitant ‘storage fees’ for the property they steal, and the law says that they are not liable for damaged or lost property unless they demonstrate extreme recklessness.
To rectify this horrific violation of due process and gun rights, Representative Matthew Santonastaso has proposed House Bill 1064. This bill would prohibit the red flag gun confiscation by the cops in the first place (once amended to fix the language that OLS created). HB1064 had a public hearing in the Criminal Justice Committee on January 12th. In addition to the sponsor, Alu Axelman and Rep. David Love (R-Derry) spoke in favor of the bill.
Proposed by Tom Mannion (R-Hudson), HB1337 would make four modest changes to the current law authorizing police to confiscate firearms without due process.
As it stands, RSA 173 directs law enforcement officers to confiscate all firearms and ammunition from individuals whenever a person files a restraining order against them. The orders are approved practically by default, and the subject is given an opportunity to contest the order of protection after the gun confiscation occurs, generally a month later:
“The court shall hold a hearing within 30 days of the filing of a petition under this section or within 10 days of service of process upon the defendant, whichever occurs later.”
Once the order expires or is dismissed, the person does not automatically get their firearms back. They must go to court again seeking a special court order from a judge compelling the cops to give them their property back. They must then go to the law enforcement station and prove that they truly own the seized property by showing receipts and serial numbers. They must pass a background check, and sometimes pay a storage fee. The process could take years, cost thousands, and some never get their property back at all. Additionally, state law shields cops from liability for damaged or lost property seized from individuals named in restraining orders.
The legislation would:
- require police to give the property back to the rightful owner once the order is no longer in effect
- remove the immunity for damaging or losing firearms and ammunition
- prohibit law enforcement from charging storage fees and holding the property ransom
- allow the property owner to surrender his weapons to a federally licensed firearms store instead of to law enforcement
“It came as a surprise to me to learn that NH has a de facto Red Flag Law within the protective order RSA (173-B:4). There’s pieces of this that require more due process that I am looking to improve. In addition, the method of returning property to its rightful owner upon expiration of the order involves the accused getting a court order. Instead, the police should have to return the items upon expiration, unless a court order exists to the contrary,” Representative Mannion remarked on his website.
The House killed both bills by a voice vote.
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