Truth of HB696 - 2019

LTE published in Brentwood Newsletter - Sept 2019

Did HB696 create a “guilty until proven innocent standard?” Yes, but that isn’t the only thing wrong with the bill and should “sow reflexive doubt” on the ability of some to understand the ramifications of a bad bill and vote accordingly. In HB696 under RSA 173-D:6, it states “showing…by a preponderance of the evidence, the court shall grant such relief as is necessary” but not limited to barring the person out from their home, including the use of some household possessions, if they share it with the defendant and confiscating all firearms (references to firearms were removed after 2/27/19 and 4/4/19 votes, but “not limited to” remained). The “preponderance of the evidence” is understood to be 50% plus a feather, which is not enough to get a conviction of a crime because “beyond a reasonable doubt” is 90-95% confidence. So under a “preponderance of the evidence” standard, the defendant must have evidence which reaches 50% plus a feather to avoid being kicked out of a home they share with the plaintiff and the loss of use of shared possessions for the duration of the order.

Some chose to focus on the fact that the defendant needs to come up with evidence which amounts to 50% plus a feather to avoid issuance of the protective order against them, but I have always highlighted that HB696 (along with all types of “Red Flag Law’s” I have seen) violates due process by depriving someone of their property without being found guilty of a crime beyond a reasonable doubt and could even deprive them of their property with an ex parte order. This happens in HB696 under RSA 173-D:5, it states “the court may enter temporary orders to protect the plaintiff with or without actual notice to defendant” and such temporary relief may include but not limited to the same list of items as if the defendant was present. So it is possible for someone to have their property removed without being able to defend themselves or even submit evidence at an ex parte hearing. Under the Fifth and Fourteenth Amendments of the US Constitution, the state shall not deprive any person of life, liberty, or property, without due process of law which includes being able to speak in defense of charges against the person and a standard of beyond a reasonable doubt. An innocuous title like “establishing a protective order for vulnerable adults,” while accurate as a description of the subject, whitewashes the throwing out of the rules of evidence and violations of the Fifth and Fourteenth Amendments found within the bill.

The final bill removed a court's ability for the court to order for confiscation of all firearms but instead left a requirement for officers to use all means (not limited to the list provided in the bill which includes removal of weapons) to prevent further neglect if they have probable cause of a belief that someone withheld support of a vulnerable adult. Even worse, it removed the method for getting the property seized back which was in the bill. I think being able to find problems in a bill when someone informs you of potential issues is a basic requirement of a legislator, if not to find them first. Thankfully, Governor Sununu vetoed it for reasons like these so it can be worked on in the future.

State Representative Josh Yokela