Firearms Prohibition Orders

[Warrigal]

One way to get guns out of the hands of crime gangs and to keep them out. It involves stop and search without a warrant for targeted individuals and their families. A loss of a certain amount of freedom for some to make things safer for the general population.

Firearms prohibition orders increase by 200% as gun crime falls in Sydney

• Ava Benny-Morrison

Whether it was driving to university or down the road with his wife, odds were Youseff Hamze was about to be pulled over. The sports science graduate lost count of the amount of times his car was searched during the several months he was subject to a wrongfully-issued firearms prohibition order (FPO).

Police search the home of the Alameddine family, some of whom are subject to firearms prohibition orders, in December 2015. Photo: Peter Rae "Where ever I would go, I would be pulled over," said the 26-year-old, whose relatives included members of the now-defunct Brothers for Life gang. "They searched my car and the family in my car. Even if I was driving with my friends and they knew I had the FPO they would search me.

A man is arrested over a plot to shoot Merrylands Police Station Photo: NSW Police Media Unit "It was embarrassing, especially for someone who didn't do anything wrong, being pulled over and searched on the street. "Sometimes it was twice a day."

Mr Hamze wasn't part of a gang but suspects he was slapped with a FPO because of his family associations, which included cousin and Supermax inmate Bassam Hamzy. Mr Hamze, who had a conviction in 2012 for resisting and intimidating police, eventually had the order overturned on review after successfully arguing there was no basis for him having one two years ago.

Police scour through cars at a Merrylands house in 2015 as part of a FPO search. Photo: Peter Rae "In relation to challenging the FPO we argued our client was a fit and proper person and the delegate agreed," his solicitor Fadi Abbas said. "Our client's premises and vehicle was searched in excess of five times a week with no adverse findings against him."Mr Hamze was one of hundreds of people served with an order after legislative reforms boosted police powers three years ago, allowing officers to search FPO targets - including their cars and homes - without a warrant.

Since then, the number of orders handed out by NSW Police has soared. FPOs issued between 2014 and 2015 increased by more than 200 per cent, according to figures obtained through a Freedom of Information request.
Just over 250 FPOs were issued in 2014 and 520 were handed out the following year.

Detective Chief Superintendent Ken Finch attributed the increase to a "deliberate strategy" to target emerging crime figures, including bikies and Middle Eastern organised crime targets.

"We have used that as a deliberate strategy to look at people who in the past may well have been eligible to have a FPO but the focus wasn't on them as much as it was in November 2013," the NSW Police Organised Crime director said.
When the search powers were introduced in 2013, public place shootings were an alarmingly regular occurrence in Sydney. NSW shootings are now at the lowest level in 20 years, according to the Bureau of Crime Statistics and Research.

Superintendent Finch believes the past two years has clearly demonstrated the efficacy of the FPO regime.
"It has value added and focused us more because we have had some tools we can actually utilise to try and disrupt and prevent gun-related violence," he said.

"We would say that the FPOs...not withstanding the extraordinary nature of the powers, we do not tread with them in a cavalier or heavy-handed way. We exercise them judiciously and responsibly." However the "extraordinary" scope of those search powers and "potential for abuse" has drawn concern from legal groups.

The NSW Bar Association pointed out that the criteria for issuing a FPO did not have to rely on a person having a firearm history and could be based on untested police intelligence. Raiding the house of someone with a FPO does not need to be based on the suspicion that the person actually had a gun either, the association argued in its submission to the NSW Ombudsman's two-year review of FPO search powers.

The review, which was finalised last month, found guns were found in two per cent of all searches, with 35 guns taken off the streets in two years. However, it also found more than 200 people were put through potentially unlawful searches as they weren't subject to FPOs. Despite the criticism, police claim the orders are a very effective way of disrupting the activities of serious criminals or "keeping crooks on their toes".

After crime figure Walid "Wally" Ahmad was shot dead in April, the FPO search powers helped police in its bid to quell the real threat of retaliation. Fairfax Media understands one threat police were told of was that associates of the Ahmads had explosives and were intending to firebomb the homes of a rival family in response to Mr Ahmad's murder in Bankstown.

The threat never eventuated but police say FPO search powers come in handy in disrupting such retribution plots.
After threats were made to shoot up Merrylands police station, officers last December raided the homes of two known western Sydney families, several of whom had members slapped with FPOs.


http://www.smh.com.au/nsw/firearms-...un-crime-falls-in-sydney-20161014-gs2i3k.html

 

[Butterfly]

I feel certain that this warrantless searching would be unconstitutional as all get-out over here under the Fourth Amendment. Our courts have been quite strict in enforcing the Fourth.

 

[Robusta]

Wow!!!! Guilt by association, warrantless searches. Can be based on untested suspicion. Sounds totalitarian. All this and yet Australia still has a gun problem.

What is the process for LE to get an FBO on a citizen?

I think I just lost a bit of the admiration I have always had for your country.

 

[Jackie22]

Compared to the US, Australia does not have a gun problem.

"Safer for the general population" is most important.

 

[Warrigal]

I'm not really sure what the process is in detail but the police can make a case for declaring some groups to be illegal gangs based on a history of drug or weapons trafficking or violence and mayhem. This has happened with certain bikie groups and some Middle Eastern gangs, one of which was mentioned in the article. Brothers for Life have been linked to drugs, shootings and gang rapes.
Members are not permitted to congregate wearing their club/gang colours and some or all of them are subject to FPO orders. If an FPO is in operation then the police are permitted to stop at search without obtaining a further search warrant. Just as a search warrant requires judicial approval, so does the FPO but it is not a one off approval. Like an apprehended violence order, it remains in effect until it is challenged or lifted.

I'll try to clarify the conditions.

 

[tnthomas]

I'm not really sure what the process is in detail but the police can make a case for declaring some groups to be illegal gangs based on a history of drug or weapons trafficking or violence and mayhem.

This has been done before in the U.S.; unsure if any court challenges have modified the practice.

 

[Warrigal]

Some US states do have stop, question, frisk policies though without the need for a search warrant.
Just paperwork to be submitted afterwards.

 

[WhatInThe]

Some US states do have stop, question, frisk policies though without the need for a search warrant.
Just paperwork to be submitted afterwards.

It can be used as 'a' tool but there have been too many problems/complaints of abuse and is a politically uncorrect measure at this time. And as noted warrantless searches are not acceptable. Many jurisdictions have even stopped the confiscation of personal property without a criminal trial as well.

Arbitrary stops and/or detainment are what criminals do, that's why many countries put provisions in their laws to prevent it. Police check points tend to be found in totalitarian regimes. Today they are stopping and detaining for guns. what's tomorrow? That's a dangerous and extremely slippery slope.

 

[Carla]

It is a drastic step and I would hate to see the US do this, but there are citizens that deserve the right to move freely without being afraid of someone roaming the streets with a loaded firearm. There are children that deserve the right to play outside and parents that should feel comfortable with their safety. Going to school or shopping at the mall should not present the need for our "vilgence", it should be safe. I think in this country, the right to bear arms has been abused and I strongly disagree with the right to go about with open carry or a concealed weapon without special permit. I do believe we have a right to own weapons and even use them if their life or the lives of loved ones are in jeopardy. AKA "self protection". If you want to practice shooting, if you are a hunter--we have this right to be move about in society legally with a firearm.

I used to advocate the NRA, as I believe this is an important right we don't want stripped away. We will lose that right, I'm afraid, if we continue along the path that others have chosen. Some people actually believe that murders only happen with guns that are not registered properly, as if legal guns do not fire bullets. That is about as weak as the argument that pain killers can not cause addiction to the patient in pain. To all of those who think threatening someone's life with a gun is perfectly OK, I say to you, you deserve to be stripped of that right indefinitely. For anyone that fires in a public area where it jeopardizes the safety of others-mandatory jail sentence. Stolen guns or illegal possession, same deal.

As far as the ability to stop and search anyone, well we do have a problem with that in our country. This has even become a campaign issue, but the problem or objection is often racial profiling and we certainly have a lot of problem with that. That would be a drastic step in trying to resolve an issue that should be able to be controlled with stricter gun laws. I do like the mandatory training, that isn't too much to require. Backround checks--automatic. It will not stop terroristic threats but it may help to curtail at least some of it. We all have rights in our country, and I don't denounce anyone's right to own a firearm but I don't want to feel threatened by that right as I too, have a right to a peaceful existence. For those who take issue with that, I say, be angry with the many who have chosen to abuse that right, not with those seeking a restoration of peace. Don't blame those who have had their own rights whisked away and have lost family members and friends and their peace of mind.

 

[Butterfly]

Some US states do have stop, question, frisk policies though without the need for a search warrant.
Just paperwork to be submitted afterwards.

Not just generally -- they do not. The Fourth Amendment is federal constitutional law and is a VERY big deal. States cannot enact laws or policies that violate the Constitution. To stop and search (including frisk) is only allowed in exigent circumstances, like reasonable suspicion that the detainee has committed a crime, or is engaged in criminal activity, or in the course of an arrest, or parolees or probationers. In no state can police just stop and frisk people because they think they are members of a group or gang, or have family members in prison, etc. Not in the US, they can't, because of the Fourth Amendment.

Check your facts. The Fourth Amendment has been litigated to death in our courts, and is a frequent flier in our Supreme Court.

 

[Carla]

Not just generally -- they do not. The Fourth Amendment is federal constitutional law and is a VERY big deal. States cannot enact laws or policies that violate the Constitution. To stop and search (including frisk) is only allowed in exigent circumstances, like reasonable suspicion that the detainee has committed a crime, or is engaged in criminal activity, or in the course of an arrest, or parolees or probationers. In no state can police just stop and frisk people because they think they are members of a group or gang, or have family members in prison, etc. Not in the US, they can't, because of the Fourth Amendment.

Check your facts. The Fourth Amendment has been litigated to death in our courts, and is a frequent flier in our Supreme Court.

They were doing it in NY but I believe they were forced to stop this practice. I don't think it should be done, however, it they have reasonable cause to suspect something very serious such as murder or terrorism, I would have a hard time believing anyone would object, do you? I think the cameras were being put in place to keep tabs on how the police are handling these situations. They should not be permitted to stop anyone randomly as they were in NY. They claim it did reduce some of the gun violence but they also say there were a lot stopped due to racial profiling and subjected many people to be treated like criminals.

 

[Warrigal]

I understood that Stop, Question, Frisk applied to New York

This scholarly paper talks about temporary detention/arrest and reasonable suspicion at length.



The paper is very long and talks about issues such as the difference between arrest and temporary detention but I haven't read it all. Perhaps someone could explain why stopping a person known to be under a firearms prohibition order imposed by a court to search for illegal firearms would be a human rights issue.

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1818&context=flr

It would seem to me to be preferable to what we see in the news too often which seems to be stop and shoot because the suspect may be armed.

 

[Butterfly]

I understood that Stop, Question, Frisk applied to New York

This scholarly paper talks about temporary detention/arrest and reasonable suspicion at length.

View attachment 32832

The paper is very long and talks about issues such as the difference between arrest and temporary detention but I haven't read it all. Perhaps someone could explain why stopping a person known to be under a firearms prohibition order imposed by a court to search for illegal firearms would be a human rights issue.

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1818&context=flr

It would seem to me to be preferable to what we see in the news too often which seems to be stop and shoot because the suspect may be armed.

This is really not much different than what the Constitution provides; note that it specifies a reasonable suspicion that a crime is being or has been committed, etc., not just random stops of persons believed to be belonging to gangs or anything like that.

Our Patriot Act changed some of this a little, but not much. You can't mess with the Fourth Amendment. I bet the NY law got slapped down because it required the person to state what they are doing "there." If memory serves, that would violate the Fifth, against self-incrimination, as we have the right to remain silent, and silent means just what it says.

It's a CIVIL rights issue because the police can't go around stopping you for no reason at all -- that's targeting and harassment. Now, if they have reasonable suspicion to think you're committing a crime, that's a different matter; but they don't just have carte blanche to go around stopping convicted felons (who are barred for life from possessing firearms) to see if they MIGHT have a gun. ALL Americans, even those who have been convicted of a felony, have the right to be free from unreasonable search and seizure.

 

[mitchezz]

I'm happy to give up a few of my freedoms if it means it is less likely I'll be gunned down going about my daily business and kids can expect their schools to be gun free zones. I think it's strange when a clause of the Constitution is of more concern than the unwarranted deaths of the citizens whose "freedom" it is supposedly protecting.

 

[WhatInThe]

I'm happy to give up a few of my freedoms if it means it is less likely I'll be gunned down going about my daily business and kids can expect their schools to be gun free zones. I think it's strange when a clause of the Constitution is of more concern than the unwarranted deaths of the citizens whose "freedom" it is supposedly protecting.

Being arbitrarily stopped by police is not freedom which is being protected. In the US many don't even want DUI (driving under the influence) check points even though drunk drivers unfortunately kill thousands. Most people don't want random drug testing in schools or workplaces even though drug problems kill thousands. Freedom: especially from the government is valued as much as a potentially reduced risk. And again, now it's guns they're looking for, it could very easily escalate or expand to other things including the seemingly harmless.

If one wants to give up their freedoms that's their choice, for themselves, not others. It should be anyway.

Can't live in a bubble and alleviate every single potential danger.

 

[Warrigal]

How odd from the perspective of an Australian. As a people we accept random breath tests for alcohol, drug tests for elite athletes, sniffer dogs at airports, scanners to enter certain buildings such as courts and parliaments, apprehended violence orders for people who are a threat to others and firearms prohibition orders for known violent criminals.

In every one of these examples there is an element of stop and search but it is for the common good.
We do not feel less free - quite the opposite in fact.

 

[WhatInThe]

How odd from the perspective of an Australian. As a people we accept random breath tests for alcohol, drug tests for elite athletes, sniffer dogs at airports, scanners to enter certain buildings such as courts and parliaments, apprehended violence orders for people who are a threat to others and firearms prohibition orders for known violent criminals.

In every one of these examples there is an element of stop and search but it is for the common good.
We do not feel less free - quite the opposite in fact.

Some might call that a nanny state and/or mentality. Freedom is different from existence, survival and/or safety. In the US especially people accept certain risks and/or way of life. Setting aside guns if one goes out on the roads and highway people know there are drunk drivers, texting drivers, careless drivers etc. One would rather deal with those POTENTIAL hazards rather than be stopped arbitrarily by the police. Back to guns, people know guns are used in killings but again freedom out weighs the chance they might get shot.

Also when the government takes over too many functions safety or others it starts taking away from individual responsibility and the incentive to learn how to deal with some dangerous situations on their own not relying on a law or government agent to rescue them.

And again now it's guns, what is next? When does it end?

 

[Warrigal]

So, are you telling me that none of the examples that I mentioned are used by law enforcement in the US?

By the way, AVOs and FPOs are not arbitrary. Both require a court order and can be appealed.

RBT and sports drug testing is arbitrary in that it is random, not targeted.
Scanning is not arbitrary because everyone is subject to the sniffer doggies or the metal detector at the airport.

 

[WhatInThe]

So, are you telling me that none of the examples that I mentioned are used by law enforcement in the US?

By the way, AVOs and FPOs are not arbitrary. Both require a court order and can be appealed.

RBT and sports drug testing is arbitrary in that it is random, not targeted.
Scanning is not arbitrary because everyone is subject to the sniffer doggies or the metal detector at the airport.

In many government buildings one is subject to search but people go to government buildings to handle specific business. When one is driving or walking on the street in public that would be an arbitrary or random stop by police if not being chased as a criminal. Stop and frisk has lead to abuse in many cities and in today's socio political climate that would be considered a police state tactic all the way as it is already too close.

At airports it's not just sniffer dogs and empty your pockets they actually make you take off your shoes and belts. I've been set aside for enhanced search and wanding because my dental work set off hand held scanner anytime it approached my upper chest. My carry on got a second search including a chemical detecting wand.

If there's a warrant the police would be executing a search warrant.

 

[Robusta]

Inmost of the examples given, such as entering a government building, driving,applying for certain positions; you have voluntarily waived your rights under the fourth amendment.

I don't know what some of you guys think America is like. The thought of being shot or involved in any kind of violence at all is not even in my mind when I leave the house.

I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.

In 61 years of life in our nation I have never seen a firearm used in an inappropriate manner and never have heard a shot outside of a legitimate pastime.

Shessh Louise folks, We are not a war zone.

 

[SeaBreeze]

Also when the government takes over too many functions safety or others it starts taking away from individual responsibility and the incentive to learn how to deal with some dangerous situations on their own not relying on a law or government agent to rescue them.

And again now it's guns, what is next? When does it end?

I don't know what some of you guys think America is like. The thought of being shot or involved in any kind of violence at all is not even in my mind when I leave the house.

I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.

In 61 years of life in our nation I have never seen a firearm used in an inappropriate manner and never have heard a shot outside of a legitimate pastime.

Shessh Louise folks, We are not a war zone.

Same here Robusta, the exaggerated overly-dramatic headlines that get repeated for weeks on end, and brought up yearly like an anniversary celebration to be top headline for another week make us look like a war zone. But fear sells, follow the $$$.

 

[WhatInThe]

Inmost of the examples given, such as entering a government building, driving,applying for certain positions; you have voluntarily waived your rights under the fourth amendment.

I don't know what some of you guys think America is like. The thought of being shot or involved in any kind of violence at all is not even in my mind when I leave the house.

I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.

In 61 years of life in our nation I have never seen a firearm used in an inappropriate manner and never have heard a shot outside of a legitimate pastime.

Shessh Louise folks, We are not a war zone.

That's the thing. Yes death or injury by gunshot would be horrifying. But so are other numerous ways to die or get injured. I'm more worried about the person who decides to use a gun in a criminal manner. Taking the gun only removes a tool. Same for suspending a drunk drivers license. The dangerous and/or criminal people always seem to find the tool of their destruction.

I can't emphasize this enough these stops or stop & frisk type stops are the proverbial slippery slope. Everyone MIGHT be on the same page today but as time goes on the stops could be used as a tool for something else.

To top it off the suspect in the original post was/is subjected to these searches because of his family associations? Guilt and/or punishment by association?

 

[Warrigal]

I do have concerns about meeting a drunk or inattentive driver,but that is my one and only safety concern.

In 61 years of life in our nation I have never seen a firearm used in an inappropriate manner and never have heard a shot outside of a legitimate pastime.

Shessh Louise folks, We are not a war zone.

And yet there is a discussion going on elsewhere on this forum that suggests that all is not well, nor very safe.

https://www.seniorforums.com/showthread.php/25490-Something-That-Really-Scared-Me-Last-Night

 

[Susie]

Yet another righteous gun debate!
Ugh--boring, boring!
Why not have "wagers" on who can kill the most rabbits, pigeons, rare birds, and also people! A GOLD STAR for the winner?
Wouldn't that spice up these "overly earnest"
gun discussions?

 

[Warrigal]

Well, Suzie, it actually started out as a discussion about striking the balance between conflicting values of personal freedom and personal safety.

One way to get guns out of the hands of crime gangs and to keep them out. It involves stop and search without a warrant for targeted individuals and their families. A loss of a certain amount of freedom for some to make things safer for the general population.

This post is in the spirit of the OP, recognising that it is more than just "another righteous gun debate".


In the course of the discussion my attention has been drawn to the Fourth Amendment of the Bill of Rights, something that I was not familiar with before. I do not think that courteous discussion is ever pointless is even one person becomes better educated in the process.

Frequently I hear that law abiding gun owners are not the problem; that it is the criminals who have their illegal guns who are doing all the damage. My OP raised an issue of one way that criminals may be divested of their illegal weapons. I raised the NSW situation to see what the reaction would be. I am pleased to say that the responses have been illuminating.

If you have something to say about the NSW legislation that is primarily aimed at rogue gangs, please feel free to contribute.