Originally published at: New Hampshire Red Flag Laws Have Got To Go | Free Keene
The following article was written by a friend of Free Keene anonymously. Please enjoy.
The Live Free or Die state has garnered a reputation for being extraordinarily pro-gun over the past few years. New Hampshire is either the best state in the union for gun rights or it’s tied with one or more other states for the coveted top spot. Granite Staters never need a permit to carry any firearm concealed or openly, and courts are the only places where guns aren’t allowed. The state government doesn’t restrict any magazines, ammunition, or accessories, and local governments in the state can’t do anything to restrict gun rights, either. Upon deeper analysis, however, one may find that New Hampshire is far from the best state for gun owners and supporters of liberty and due process. In fact, it may be the most tyrannical state in the union when it comes to the confiscation of firearms by police.
Over the past few years, 21 states have enacted “red flag” laws, which generally allow the government to seize firearms from people who exhibit warning signs of being a potential danger to the public or to themselves. Such laws typically allow law enforcement agents to petition a court for an “extreme risk protection order.” If approved by the judge, police may then go to the defendant’s home and confiscate their firearms and ammunition before he has a chance to defend himself in court. This Orwellian policy flips due process on its head by presuming persons to be guilty, punishing them, and then giving them a chance to defend themselves in court at a later time. It seems that the entire right side of the aisle has condemned red flag laws, especially when it was politically popular to do so. But when asked about such policies shortly after a tragic shooting, the same people express support for preemptive gun confiscation in order to remain politically popular.
And that’s the key: politics.
Republican politicians love saying things like:
“We will never let the Dems take your guns! We have a 2nd Amendment right gosh dangit! Red flag gun confiscation will never have my support!”
But nearly every Republican legislator in New Hampshire changes their tune dramatically when presented with ex parte gun confiscation if it’s wrapped in a different type of box, one which nearly nobody on the planet would dare oppose: the restraining order.
According to the mainstream dogma, anything under any restraining order statute could never be loosened. Anyone who supports amending the restraining order/gun confiscation law (RSA 173) must support violence against women. That’s what the conservatives would have you believe. Yet, RSA 173 is New Hampshire’s restraining order statute and it may be the union’s most expansive and anti-liberty red flag gun confiscation law. There are a few ways in which it’s the worst:
- As opposed to the other states, New Hampshire’s legislators support granting any human the opportunity to file a restraining order against another person. Other states only allow police officers, spouses, romantic partners, and sometimes other relatives to file restraining orders or Extreme Risk Protection Orders (EPRO).
- Judges in New Hampshire seem to approve the restraining order in 100% of cases. Evidence is not necessary, and one does not even need to make any allegation of wrongdoing against someone for the judge to approve their request. Judges figure that it’s best to err on the side of public safety over individual liberty and due process.
- It is standard practice in New Hampshire for all restraining orders to include an order to the police to confiscate all firearms, ammunition, and weapons from the subject by force. No person with a restraining order can possess or have any access to any of these items. Any refusal to cooperate with the police searching the person’s home is met with arrest and a subsequent search and seizure. Within 30 days, the defendant may have an opportunity to attend a hearing and convince the judge that the restraining order should be lifted. If successful, he can then file a motion with the court asking for his firearms back from the police and he is granted a future hearing to argue that matter.
In New York, only a district attorney, a police officer, a school official, a healthcare professional, or a member of the respondent’s family or household can file ERPOs. They also must be filed in the defendant’s court, while anyone in New Hampshire can go to their local court or just call the cops to file the ERPO.
In New Jersey, a family or household member or law enforcement officer may file a petition for a temporary ERPO alleging that the respondent poses a significant danger of bodily injury to themselves or others by having a firearm. The law states that “A judge shall issue the order if the court finds good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or others by having custody or control of, owning, possessing, purchasing, or receiving a firearm.” This is a higher standard than New Hampshire judges utilize; they seemingly approve every red flag request, even those that don’t make any allegations whatsoever.
In California, only those with certain relationships to the defendant can file ERPOs, while New Hampshire allows any person to do so. Their law states that:
At the hearing, the petitioner has the burden of proving, by clear and convincing evidence, that both of the following are true: (1) The subject of the petition poses a significant danger of causing personal injury to themselves or another and (2) A gun violence restraining order is necessary to prevent injury because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances.
New Hampshire does not even require a hearing for a red flag gun confiscation. Any person in NH can tell a cop they want someone’s guns taken, at which time the cop calls a judge who gives them the approval, and the ERPO is executed immediately.
Some states have red flag gun confiscation policies that are similar to New Hampshire’s but none are worse.
In the 2024 session, the Republican-controlled legislature unanimously killed two bills that would have reformed the state’s gun confiscation laws. The Criminal Justice and Public Safety Committee unanimously voted to recommend killing the bills, and the House subsequently killed them both by voice votes.
House Bill 1064 (filed by pro-liberty Rep Matt Santonastaso) would have eliminated the gun confiscation element from restraining orders while keeping all of the other provisions intact. Any person would still be able to file a restraining order against anyone else for any reason. Judges would continue to approve nearly 100% of temporary ex parte restraining orders, which would forbid the defendant from contacting or coming near the plaintiff. The Committee killed the bill. House Bill 1337 (filed by pro-liberty Rep Tom Mannion) would have made it a little easier for the defendant to get his property back from the police after the expiration of the restraining order. It also would have prohibited police from charging storage fees for the guns and ammunition they confiscated, and it would have removed the absolute immunity from liability for property lost or damaged while in police custody. The Merrimack County prosecutors testified against both bills, implying that women would die if either of the bills passed into law.
The State Representatives on the Committee are:
Terry Roy
Jennifer Rhodes
Alissandra Murray
Kevin Pratt (R)
John Sytek (R)
Mark Proulx (R)
Jason Janvrin (R)
Dennis Mannion (R)
Karen Reid (R)
Jonathan Stone (R)
Jeffrey Tenczar (R)
Linda Harriott-Gathright (D)
David Meuse (D)
Amanda Bouldin (D)
Amy Bradley (D)
Nancy Murphy (D)
Ray Newman (D)
Jodi Newell (D)
Loren Selig (D)
Jonah Wheeler (D)
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AZ is almost as bad as NH
CO is similar to NH
Petition for extreme risk protection order, Colo. Rev. Stat. § 13-14.5-104
DC is almost as bad. Must show immediate danger. And it lasts 7 days.
https://www.womenslaw.org/laws/dc/restraining-orders/anti-stalking-orders#node-73939
FL is similar. Cops can file ERPOs. Citizens can ask cops to do it, seemingly.
Chapter 790 Section 401 – 2021 Florida Statutes
Anyone can file a restraining order, and people with restraining orders generally can’t have guns in HI, seemingly.
Section 134-7 – Ownership, possession, or control prohibited, when; penalty, Haw. Rev.
IN – judges have full discretion for ex parte orders
State Gun Laws: Guns and Orders for Protection | WomensLaw.org
VA – red flag law is ex parte but has more process and higher standard than NH: In determining whether probable cause for the issuance of an order exists, the judge or magistrate shall consider any relevant evidence, including any recent act of violence, force, or threat as defined in §19.2-152.7:1 by such person directed toward another person or toward himself. No petition shall be filed unless an independent investigation has been conducted by law enforcement that determines that grounds for the petition exist. VA does not seem to require another motion/hearing to get guns back. The law explicitly allows the defendant to transfer his guns to a friend.