Lawmakers discuss role of due process in confiscating guns under new gun bill

The Senate Judiciary Committee on Thursday took testimony on a bill that would allow guns to be confiscated from Vermonters having a restraining order against them, and potentially without constitutionally required due process.

Under H.133 — an act relating to emergency relief from abuse orders and relinquishment of firearms — if a court grants a Relief from Abuse Order (RFA), a judge could also order confiscation of the alleged abuser’s firearms, even if the accused has not yet had a formal court hearing.

An exchange between Sen. Joe Benning, R-Caledonia, and Legislative Counsel Erik FitzPatrick confirmed that, in some cases, guns will be taken without due process if H.133 becomes law.

“What this bill is calling for is to enable that property be removed in an emergency situation where there is no due process for the defendant?” Benning asked.

Wikimedia Commons/Tim Dobbelaere

NO JUDGE OR JURY: According to a bill now before the Senate Judiciary Committee, there could be instances where Vermonters have their guns taken away without due process.

FitzPatrick responded that some cases would require “pre-hearing deprivation” — meaning, guns taken without a hearing first.

“I would agree with you to the extent that you are right that it permits the relinquishment of the firearm without notice to the defendant and without a hearing,” FitzPatrick said. “But I think under the due process precedents that there are circumstances under which short-term, brief denials of property can be done at what’s known as pre-hearing — in other words, it’s a pre-hearing deprivation.”

The point was made again when Sen. Philip Baruth, D-Chittenden, asked FitzPatrick about due process.

“Correct me if I’m wrong, but the judge has to find, on the basis of the evidence, that there has been abuse,” he said.

FitzPatrick answered the plaintiff does not need to be found guilty of any crime for the RFA and subsequent confiscation of the firearms to occur.

“Yes, not a crime necessarily,” he said.

FitzPatrick described the court process for getting a restraining order, and said “more likely than not” the decision is made based on an evidence standard.

“So it’s a preponderance of the evidence standard more likely than not. If the court finds by the preponderance standard that the plaintiff, the family or household member has been abused by the other family or household member in the past, and there is a danger of future abuse — they have to make those two findings — then it can issue the RFA.”

FitzPatrick said issuance or denial of RFAs are decisions to be made by the court. “The terms of the order are discretionary,” he said.

Sen. Dick Sears, D-Bennington, questioned if this proposed legislation would work as intended.

“I think there’s a lot of questions here about how this would actually work in real-time and how they would prevent somebody from acquiring [a gun],” he said.

William Moore, Firearms Policy Analyst for the Vermont Traditions Coalition, submitted a letter to lawmakers saying that there may be legal grounds for a plaintiff to refuse compliance with confiscations.

“With Defendants being noticed for an RFA demanding firearms relinquishment,
would not the Defendant at the Time of Service of the initial RFA Order have a Due
Process right to refuse compliance and demand an ERPO [Extreme Risk Protection Order] procedure under the law? Or at least, a valid Search Warrant under VRCP [Vermont Rules of Civil Procedure] 41?” Moore wrote.

Committee members agreed to continue taking testimony on Tuesday.

Michael Bielawski is a reporter for True North. Send him news tips at and follow him on Twitter @TrueNorthMikeB.

Image courtesy of Wikimedia Commons/Tim Dobbelaere

13 thoughts on “Lawmakers discuss role of due process in confiscating guns under new gun bill

  1. As a woman, this scares me. I’m also a gun owner. I have a family to protect. If this law gets passed, then it sets a standard that will be used to go after anyone they want for no reason.
    This is what happens when people allow even small freedoms, to be taken. The government wants to control everything…our health, our ability to defend ourselves, the way our kids are educated, etc. People best start waking up and taking a stand before it’s to late AND STOP VOTING FOR THESE CORRUPT POLITICIANS!!

  2. Mr. Baruth, When some citizen takes exception to having his firearms confiscated without due process, without a hearing and decides not to relinquish his property and uses his weapon(s) to defend his rights as he sees them, and he or a law enforcement officer is injured or killed trying to enforce an unconstitutional law you helped pass, the blood is on your hands.

    4th Amendment – The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    • Agreed. I’m a woman and find this troubling. I know females in particular that have filed RFOs for NO reason other than they wanted to get back at an ex or something childish. I understand if someone files against someone who has a history of violence…but it is a slippery slope because once a law like this is allowed, then what’s next?

  3. Great comments and truths. Restraining orders are simple to obtain if you’re a woman in VT and go to a liberal judge (all?). I know of two instances where restraining orders were issued with zero evidence of anything. In one, claims made by the woman were made up to make it seem as though she was “afraid”; the man was forcibly removed from the house he had been paying on for 20 years. She had dropped divorce papers that morning due to an ongoing affair she was having and quickly went to get the RO. The judge signed off with no evidence and the man’s life was turned upside down. If this can happen with zero evidence I’m pretty sure they’ll grab your guns too.

    • You’ll be lucky if you EVER get them back either even if absolved of any wrong doing.

      • It’s a certainty the State drones will make the return process difficult, frustrating, expensive and lengthy.

  4. There goal is of course to take all the guns away, without due process, it’s the only way they can do it.

    See this is the problem with a democracy. They should throw out every representative that states we are a democracy for going against their sworn duty. Treason. Enemies from within on both sides.

  5. The power of a corrupted political judge is no different then a corrupted leftist gun grabber.. No to baruth the flatlander gun grabber with a psychological problem. How about a Shrink test on his obsession with taking away gun rights. I don’t think he’s
    competent enough to be making laws on Vermonters. While we’re at it lets do one on
    all the drones in Montpeculiar

  6. H.133, are these elected officials actually circumventing due process as stated
    in the US Constitution ??

    Who and the hell do these buffoons think they are, and you wonder why this state
    is headed done the liberal toilet.

    All gun owners in Vermont, no matter what your political party is need to stand up
    contact your legislator this is pure nonsense, just one person has a problem with you
    and you’re reported and RFA is issued, this is nothing more than a gun confiscation
    nothing legal about it !!

    • the took my guns from me i was the second person in the state
      thier precursor argument was i asked for a warrant and they called it obstruction and then they charged me and gave me 3 years and .. the supreme court has the audacity to argue if asking for a warrant is the same as taking a gun from a officer… the system is rigged … they pulled all this crap because i stood up for my right and they labeled me a sovereign citizen

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