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Call to Action Against LB-58 - RED FLAG LAW

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Range Mom:
Contact Your Senator Today!

Activists are visiting your senators and lobbying this week in support of LB-58, Morfeld's Red Flag Law!
Ensure they protect your civil rights!
Find your Senator and their contact information here: https://nebraskalegislature.gov/senators/senator_list.php

Feel free to use our Legislative Alert Sheet posted below

LJUnaTIC:
Senator,
I write today to express my vehement opposition to LB58.
Existing Nebraska law currently provides for protecting the public from mentally ill or dangerous persons. In doing so it provides for fair and proper treatment of the subject and upholds important legal requirements concerning constitutional rights, evidentiary requirements, due process rights to a fair trial and to face your accuser.

LB58 would remove many of these protections and would only remove firearms from the accused,  leaving them free to use any of a multitude of possible weapons to continue their alleged acts.

Would you not agree that a mentally ill or dangerous person would better be treated by licensed professionals under the auspices of the courts to address their mental illness or treat their addictions while at the same time the patient is removed from all available tools they might use to commit violent acts. The only thing LB58 does is remove critical constitutional protections of the accused from the process to accomplish a less than desirable end that leaves an allegedly dangerous mentally ill person on the streets to do whatever they please.
I urge you to oppose LB58 .
Xxxxxxxxx
District 28



 71-908.
Mentally ill and dangerous person, defined.
Mentally ill and dangerous person means a person who is mentally ill or substance dependent and because of such mental illness or substance dependence presents:

(1) A substantial risk of serious harm to another person or persons within the near future as manifested by evidence of recent violent acts or threats of violence or by placing others in reasonable fear of such harm; or

(2) A substantial risk of serious harm to himself or herself within the near future as manifested by evidence of recent attempts at, or threats of, suicide or serious bodily harm or evidence of inability to provide for his or her basic human needs, including food, clothing, shelter, essential medical care, or personal safety.

Source
Laws 1976, LB 806, § 9;
Laws 1977, LB 204, § 26;
Laws 1985, LB 252, § 2;
R.S.1943, (1999), § 83-1009;
Laws 2004, LB 1083, § 28.
Annotations
1. Requirements of section

2. Evidentiary issues

3. Standard of proof

4. Constitutionality

5. Appeal

1. Requirements of section

Involuntary commitment as a mentally ill dangerous person is improper when, although a person is clearly mentally ill, there is no showing of dangerousness. Petersen v. County Board of Mental Health, 203 Neb. 622, 279 N.W.2d 844 (1979).

Showing that a person is a spendthrift and improvident is insufficient to demonstrate dangerousness as required by this statute. Petersen v. County Board of Mental Health, 203 Neb. 622, 279 N.W.2d 844 (1979).

The requirements of this section, which defines a mentally ill dangerous person, are met when medical diagnoses of paranoid schizophrenia and an unprovoked assault and threatening behavior are shown by clear and convincing proof. Lux v. Mental Health Board of Polk County, 202 Neb. 106, 274 N.W.2d 141 (1979).

Before a person may be committed for treatment by a mental health board, the board must determine that the person meets the definition of a mentally ill and dangerous person as set forth herein. In re Interest of Verle O., 13 Neb. App. 256, 691 N.W.2d 177 (2005).

2. Evidentiary issues

There is no definite time-oriented period to determine whether an act is recent for the purposes of this section. Each case must be decided on the basis of the surrounding facts and circumstances. In re Interest of Kochner, 266 Neb. 114, 662 N.W.2d 195 (2003).

To meet the definition of a mentally ill dangerous person, the State must show that the person suffers from a mental illness and that the person presents a substantial risk of harm to others or to himself or herself. In re Interest of Kochner, 266 Neb. 114, 662 N.W.2d 195 (2003).

A person who is mentally retarded does not fall within the definition of "mentally ill dangerous person" unless there is a secondary diagnosis of mental illness. In re Interest of Wickwire, 259 Neb. 305, 609 N.W.2d 384 (2000).

Actions and statements of a person alleged to be mentally ill and dangerous which occur prior to the hearing are probative of the subject's present mental condition. However, in order for a past act to have any evidentiary value, it must form some foundation for a prediction of future dangerousness and be, therefore, probative of that issue. In re Interest of Rasmussen, 236 Neb. 572, 462 N.W.2d 621 (1990).

In proving the dangerousness of a mentally ill person as manifested by "evidence of inability to provide for his basic human needs," within the meaning of this section, expert testimony may be used to prove such a condition. In re Interest of Kinnebrew, 224 Neb. 885, 402 N.W.2d 264 (1987).

An act occurring five years prior to the mental health commitment hearing is recent within the meaning of this section where: (a) There is evidence that the act is still probative of the subject's future dangerousness; (b) the subject has not had an opportunity to commit a more recent act because he has been in confinement; and (c) there is reliable medical evidence that there is a high probability of repetition of such act by the subject. Under Mental Health Commitment Act, the determination of whether an act of violence is recent must be decided on the basis of all the surrounding facts and circumstances. In re Interest of Blythman, 208 Neb. 51, 302 N.W.2d 666 (1981).

An act or threat is "recent" within the meaning of this section, if the time interval between it and the hearing of the mental health board is not greater than that which would indicate processing of the complaint was carried on with reasonable diligence under the circumstances existing having due regard for the rights and welfare of the alleged mentally ill dangerous person and the protection of society in general. Hill v. County Board of Mental Health, Douglas County, 203 Neb. 610, 279 N.W.2d 838 (1979).

Although this section refers to "recent violent acts," commitment may be based upon evidence of only one violent act or threat. Lux v. Mental Health Board of Polk County, 202 Neb. 106, 274 N.W.2d 141 (1979).

Pursuant to subdivision (1) of this section, acts committed over 10 years prior to the filing of the petition seeking commitment can still be sufficiently recent to be probative on the issue of dangerousness where the subject's lengthy incarceration prevented him from committing a more recent act and where the subject had not completed any offense-specific treatment while incarcerated. In re Interest of Michael U., 14 Neb. App. 918, 720 N.W.2d 403 (2006).

3. Standard of proof

The State must prove by clear and convincing evidence that an individual poses a substantial risk of harm to others or to himself to have that individual declared mentally ill and dangerous under the Nebraska Mental Health Commitment Act. In re Interest of Dickson, 238 Neb. 148, 469 N.W.2d 357 (1991).

Evidence must be clear and convincing to support a finding that a person is mentally ill and dangerous. In re Interest of Rasmussen, 236 Neb. 572, 462 N.W.2d 621 (1990).

4. Constitutionality

The definitions of mentally ill dangerous persons in the Nebraska Mental Health Commitment Act and the statutes governing persons acquitted of a crime on grounds of insanity are constitutional and do not violate equal protection guarantees. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991).

5. Appeal

An order adjudicating an individual as a mentally ill dangerous person pursuant to this section and ordering that person retained for an indeterminate amount of time is an order affecting a substantial right in a special proceeding from which an appeal may be taken. In re Interest of Saville, 10 Neb. App. 194, 626 N.W.2d 644 (2001).

Range Mom:
Lunatic that's an outstanding letter! Thank you for sharing and taking action

Jito463:
Just sent the following e-mail to both Sen. Morfeld (my district's rep) and Sen. Lathrop (the Judiciary Committee chair).

--- Quote ---As one of the law abiding gun owners living in District 46 (also CC'd to the chair of the Judiciary Committee), I wish to strenuously protest the advancement of LB58.  This bill will not provide any additional protection to those in danger from someone seeking to do harm to another, it will only serve to erode the civil liberties of those practicing their rights, as protected by the second amendment and by our own state Constitution.

For people with mental health issues, there are already adequate laws in place that simply need to be properly enforced.  If you are truly concerned for people's safety, why would merely taking guns away provide any protection?  If an individual wishes to do harm to another, all they need is a car, a hammer, a knife, a piece of 2x4 or even just their fists.

Firearms are just a tool, and yes, in the hands of a psychotic individual, they are a dangerous tool.  However, they are just one tool.  A deranged or enraged individual doesn't care if you take away one means for them to inflict harm, they will simply find another way.

On the other hand, this bill - besides being useless for the purpose it purports to convey - will only serve to make life more difficult for the law abiding citizen.  There is no protection under the law with a bill like this.  There is no 'innocent until proven guilty', despite our system of justice being entirely based around that principle.  Instead, there is a presumption of guilt, where you must then prove your innocence.  This is completely opposite of what our legal system represents, and at least one individual has already lost their life because of bills like this.  That there hasn't been more incidents, is the true miracle.

https://www.thenewamerican.com/usnews/constitution/item/30567-law-abiding-gun-owner-killed-during-red-flag-confiscation-raid

https://www.cbsnews.com/news/maryland-officers-serving-red-flag-gun-removal-order-fatally-shoot-armed-man/

These bills are dangerous, not only because of the possibility of future incidents such as this, but because they directly erode the God-given rights of the law abiding.  Virtually anyone can bring up a claim - false or otherwise - and there's all likelihood that a judge will order the firearm removal.  What judge wants to say that they chose to ignore a claim, only to have the accused potentially do something later?  This is done without the accused being present, and the removal order is made without the accused having even committed a crime.  That you can't see the inherent dangers in that, is the part that scares me the most about this bill.

As a law abiding citizen who lives in your district, I implore you to shelf this bill, for the safety of the law abiding gun owners and for the security of the Constitution you swore to uphold.
--- End quote ---

Range Mom:
Excellent job Jito!

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