red flag rights due process
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By Ryan Frasor

On September 28, 2019, The Daily Signal published an article written by Amy Swearer of the Heritage Foundation describing a hypothetical version of a “Red Flag” gun confiscation law that would be acceptable to gun owners.

The article argues that if such a law incorporated “meaningful” due process and “safeguards against abuse or misuse,” it would become an acceptable compromise form of gun control.

“Red flag” with due process is impossible

The problem with Swearer’s premise is that “red flag” laws, by their very nature, are the antithesis of due process. They require guns to be taken and constitutional rights to be deprived by the government before anything that resembles an adjudicative process kicks in.

There is no way to preemptively confiscate someone’s private property or deny constitutional rights based on a mere accusation while protecting meaningful due process.

Of the 17 states that have already passed “red flag” gun confiscation laws, none provide for pre-seizure due process.

In fact, even policy makers in Ohio, who initially supported the concept of “red flag,” found the actual process of drafting one in response to the Dayton shooting to be “unworkable.”

In every state that has a “red flag” law, the subject may only challenge the issuance of the order and beg for their rights and their guns back after seizure of the firearms has occurred and after the initial ex parte (one-sided) order is issued against them.

This is not adequate due process; rather, it should be a fatal flaw for any policy expert who claims to support the Constitution.

In states that have “red flag” laws, the processes that kick in after guns have been seized are a tall order for anyone maliciously or falsely stripped of their Second Amendment rights, starting with the immense legal fees associated with defending cases like this. Only one state’s law — Colorado’s, (which has not yet gone into effect) — theoretically provides for an attorney at state expense to persons who are indigent. None provide for expert witness help, like a psychiatrist or psychologist, at state expense, for those who cannot afford one.

According to law professor Donald Kilmer, “Experienced counsel to defend you in a ‘due process’ hearing will run about $15,000 in fees. If you lose and want to appeal, expect to spend another $25,000 to $100,000 in fees and costs. And even with all of that, you might still lose.” 1

“Red flag” laws, such as the one in Colorado, have more lenient standards of evidence for initiating gun confiscation orders (“preponderance of the evidence”) than they do for one to get their rights restored (“clear and convincing evidence”).

That is like trying to convince a judge to overturn an order already set by another judge, with the deck stacked against you, after a guilty verdict has already been reached.

Ripe for abuse by accusers and bureaucrats

No matter how many so-called safeguards against abuse by the accuser are implemented, it would be impossible to prevent abusive partners and criminals from using “red flag” laws to disarm their partners, neighbors, and potential victims.

In most states, there is no recourse for the victims or punishment of the perpetrators of a falsely filed “red flag” complaint. Experienced lawyers should already know that laws against perjury are not enforced. Case law on perjury suggests even if a “red flag” proposal included the addition of such a provision it would rarely be enforced.

States that did pass “red flag” laws heard testimony from women who feared for their lives that ex-partners would file one of these orders to disarm them.

Conversely, a partner who files an order against an abusive spouse may find their own firearms — and only means of self-defense — are subject to the gun confiscation order as well. That’s because under “red flag” laws, firearms belonging to innocent third parties, (not the accused) such as household family members, can also be seized if the police think the subject of the order can access them.

“Red flag” laws also open the door for overzealous bureaucrats to misuse these laws to push their own anti-gun agendas. Florida’s “red flag” law has already been used against numerous children as young as eight years old, (in one case, because the child was reportedly prone to frequent temper tantrums), despite the fact that it is already illegal for children in Florida to own firearms.2

This begs the question: what will happen to these children’s gun rights when they become adults? Have they lost their gun rights permanently? And was that the intention of the anti-gun left all along?

It is hardly farfetched to assume these laws will be used by corrupt government officials to strip innocent citizens of their gun rights. It’s already happening.

Dangerous for law enforcement officers and gun owners

In a different article, Ms. Swearer also claimed that serving “red flag” orders is not any more dangerous to police officers than normal police work.3

Good guys don’t draft gun control

Ms. Swearer is making the classic mistake of trying to compromise with and appease gun control advocates by trying to come up with an “acceptable” way to infringe on constitutional rights. As the history of gun control in the United States shows us, our freedoms are never revoked all at once. Rather, a death by a thousand cuts strategy, implemented by the gun-grabbers, has gradually reduced the rights of law-abiding citizens to keep and bear arms.

The National Firearms Act of 1934, the Gun Control Act of 1968, the Hughes Amendment, the Gun Free School Zones Act, the Brady Act, and many others are just some of the examples of the politics of appeasement.

Pro-gun organizations like the National Association for Gun Rights do not waste valuable time trying to make bad bills better. Instead, those championing the Second Amendment should be working to defeat “red flag” legislation, as was the case when bills in places like North Dakota, Utah and New Mexico were scrapped this past spring.

The truth of the matter is, the only good “red flag” bill is no bill at all.

Hopefully Ms. Swearer and the Heritage Foundation will reverse course and come to the same conclusion, before the anti-gun left twists their position into a blow against freedom.


Ryan Frasor is a senior contributor and Firearms Policy Specialist for the National Association for Gun Rights, a 501(c)4 organization representing 4.5 Million Second Amendment members and supporters nationwide.



1 Kilmer Donald. The enforcement problems with gun grabbing ‘red flag’ laws are even worse than you think. Washington Examiner. Aug 17th, 2019.
2 Knighton Tom. FL Red flag Orders Issued to Shocking Number of Children. Oct 3rd, 2019.
3 Swearer Amy, Answers to Common Questions About “Red Flag” Gun Laws. Aug 16th, 2019.
4 Manchester Julia. Colorado Sheriff warns ‘red flag’ gun laws could put officers at risk. The Hill. April 8th, 2019.

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  1. The only good red flag law is one that does not exempt cops, legislators, judges, prosecutors, Governors, etc. etc. etc.
    That way the elites will get a taste of red flag abuse and kill the law.

    • A red flag-law without immediate ex-parte confiscation isn’t a red-flag law. If you provide for appropriate due-process what you actually have is something like a competency hearing. Where red-flag laws are treated as civil-rights issues with immunity for people making the complaints, competency hearings are not. If you try to have someone declared mentally incompetent, something that ought to be the first requirement for taking someone’s guns, you’d better have compelling evidence on your side. If you don’t, you may find yourself being sued instead. Of course, doing this upends the whole rationale for having red-flag laws which are intended to treat all gun owners as dangerous social deviants.

    • I agree. In addition if anyone from Heritage is reading this you had best get that young ladys thoughts together OR don’t be asking me for anymore donations!

  2. No Red Flag GVRO/GVPO law is acceptable as they are all un Constitutional and a step towards government confiscation,Period.

  3. These red flag laws are just ripe for abuse.

    These can be used by a spiteful family member, people that don’t agree with your politics, or others who may hold a grudge against you.

  4. All laws in relation to firearms are a violation. Shall not be infringed is very specific. You should be able to sell guns out of your garage, pick one up off the shelf at Walmart and bring it to the check out or pick up a cheap 100 dollar gun from your local gas station.

    It’s 90% infringed and we are still talking about expanding the infringements.

    Good article. I largely agree. I think all ex parte orders are wrong.

  5. “They require guns to be taken and constitutional rights to be deprived by the government before anything that resembles an adjudicative process kicks in.”

    I hate to break it to you, but an arrest deprives people of their liberty — their freedom! — and many arrests happen before anything that resembles an adjudicative process kicks in. In such cases, the arrest triggers the adjudication, not the other way around.

    But I agree that it’s not possible to craft a decent “red flag” law due to the nature of the people drafting and administering those laws. Those people simply cannot be trusted. They will run over anyone who does not share their world view. They will run over us, and all the due process in the world won’t stop it.

    • Ralph,

      I came to say the same thing: arrest warrants are based on accusations just like Red Flag orders are based on accusations.

      There is a GINORMOUS distinction, however, between an arrest warrant and a Red Flag order. An arrest warrant is an order to arrest someone based on credible evidence that the subject of the order actually committed a CRIME. Whereas a Red Flag order deprives someone of their rights based merely on SPECULATION.

      Red Flag orders deprive us of our inherent human dignity and are thus utterly and totally unacceptable.

      • Yep. Totally agree with you. if there is credible proof of criminal intent or a crime you would never need a red flag law to begin with.

      • “arrest warrants are based on accusations just like Red Flag orders are based on accusations.”

        Many arrests are not based on a warrant. I thought I was clear on this.

        • Arrests are made when an officer of the peace witnesses a criminal act or is acting on foreknowledge of a law being broken.

          A Red Flag firearm confiscation order can be as loose as one person’s hearsay (i.e. complete fabrication), without fear of punishment for bearing false-witness and without anyone witnessing a law being broken or having any provable foreknowledge of a law being broken.

          These are two completely different instances and one should be EXTREMELY cautious in any attempts to draw parallels between the two.

        • Ralph,

          Purists try to claim that due process does not allow government to arrest us — depriving us of our liberty — until AFTER our trial and a jury of our peers convicts us.

          I was speaking to that general line of thinking, pointing out how arrests deprive us of our liberty BEFORE our trial and conviction, although such arrests have to be based on credible evidence that the accused actually committed a crime.

          Whether that credible evidence and accusation takes the form of a prosecutor — grand jury — arrest warrant process or a law enforcement officer seeing the crime occur is neither here nor there. In either case the legal justification for the arrest is credible evidence that the accused committed a crime.

          And because there is a factual basis for the arrest, the accused can immediately challenge the facts and secure his/her liberty if the evidence excludes him or her. That is NOT the case with a Red Flag order since there are no facts that the accused could possibly use to to exclude him or herself. (The accused has no way of refuting speculation which is the basis of Red Flag orders.)

          That is why people who accept the idea of arrests before a trial and conviction should categorically reject Red Flag laws. That is what you touched upon and what I expanded upon.

        • “A Red Flag firearm confiscation order can be as loose as one person’s hearsay”

          First of all, I think you are misusing the legal word “hearsay.” You might want to check that. Plus, there are about 17 exceptions to the hearsay rule, depending on the jurisdiction.

          Second, we were trying to contemplate a Red Flag order that respected the rights of the accused. My point is that such a law could be drafted with no difficulty whatsoever, but the Crushers and the politicians cannot be trusted to administer it.

      • An arrest is based on probable cause whereby a peace officer or citizen has a reasonable belief that a crime has, will, or been committed. That is the standard for an arrest. There are consequences for making a false application for an arrest warrant. The red flag laws have none of these standards. There is no recourse for one falsely accused. A baseless allegation is all that’s required. It flys in the face of due process which is the foundation of our innocent until proven guilty standard. Red flag laws turn this standard on its head.

    • Excuse my ignorance, but don’t the police have to have some sort of probable cause or see/suspect a crime being committed to arrest someone?
      If my neighbor calls the cops and states that I have committed a felony, don’t the cops have a duty to investigate that the charge is true, or at least probably true before they arrest me?

      • Yes, the same gang in blue that shoots innocent people through their doors have a duty to investigate that the charge is true, or at least probably true before they arrest you.

        Are you really comfortable with that?

        The bottom line is that if you’re arrested, you are going to suffer even if you win in the end.

    • Ralph,

      While I certainly do not trust the intentions or ability of Red Flag legislation authors, that is not why I reject Red Flag legislation. Rather, I reject Red Flag legislation because the entire premise is fatally flawed.

      And that fatal flaw: the basis of a Red Flag order is PURE SPECULATION that someone MIGHT commit a crime IN THE FUTURE.

      That is a heinous and totally unacceptable standard for government to seriously disrupt someone’s life.

      Using that same standard, we could enforce “Sure to Rape” orders against any post-pubescent male. And because there is no standard, anyone who is an acquaintance, friend, coworker, peer, educator, or relative of that post-pubescent male can trigger the order based on claimed hearsay.

      We must oppose Red Flag orders because they are just plain wrong, not because we cannot trust authors of Red Flag legislation to write that legislation correctly.

      • “the basis of a Red Flag order is PURE SPECULATION that someone MIGHT commit a crime IN THE FUTURE.”

        It need not be so speculative. An order can be based on threats or conduct.

        But the bottom line for me has not changed. While it is perfectly possible to create a Red Flag law that respects the rights of the accused, I don’t trust the system to do anything other than abuse it.

        • Ralph,

          If someone issues a credible threat against another person, that is misdemeanor or felony assault depending on the severity of the threat, correct?

          If that is correct, then we do not need Red Flag legislation to handle credible threats because we already have laws in place for misdemeanor and felony assault.

        • Ralph,

          Can you please clarify how someone’s conduct would justify pre-emptive infringement of someone’s rights? An example would be really helpful.

        • “If someone issues a credible threat against another person, that is misdemeanor or felony assault depending on the severity of the threat, correct?”

          Maybe, or maybe not. If so, then do they take the guns away? And what happens when the accused posts or the DA doesn’t prosecute? Or what happens when the Crushers are too lazy to do anything, and the threatened party is killed?

          So-called Red Flag laws can have a valid purpose. So do a lot of laws that are abused every day. Frankly, I’ve had enough of the system’s hypocrisy. I practiced law in that system for over 30 years and know first hand what a sham it is.

          At its best, the law is a beautiful thing. At its worst, it’s what we have now.

        • “At its best, the law is a beautiful thing. At its worst, it’s what we have now.”

          reminds me a lot of what Patrick Henry once said:

          “Government is, at its best, a necessary evil and at its worst an intolerable one.”

        • Ralph,

          I certainly understand how the practice of law in our nation is largely a sham. I have experienced it first hand.

          In my state, if the local prosecutor decides to prosecute you for felony assault, state government prohibits you from possessing firearms until the outcome of your trial. (Not sure whether the police would come and take away your firearms or whether they would allow you to send them to relatives for safe keeping.) Thus, we don’t need Red Flag laws for that circumstance.

          I doubt that our state law provides for state government to ban firearm possession while awaiting trial for misdemeanor assault — which is as it should be because misdemeanor assault is nowhere near as serious as felony assault. Once again, we don’t need Red Flag laws for that.

          I am simply failing to imagine a scenario where a Red Flag law is righteous.

  6. You have to be locked up as a convicted criminal to lose your gun rights. Unless a red flag conviction really is a lockemup criminal conviction, it just isn’t good enough.

  7. It would be much easier and less paperwork if they would just complete due process. If someone is involuntarily committed to a mental institution for a 96 hour hold, then they don’t have access to their firearms anyway. After 96 hours, if the physicians at the hospital still thinks a person needs to be involuntarily committed longer, then they have to go to court. The person is assigned an attorney to represent them at the court hearing if they cannot afford one. If the court agrees with the physicians and finds that the person is a danger to themselves and or others, then the person can request an assignment of someone they know (friend or relative) to be a guardian who would be in charge of their estate and legal affairs. Now, if the person doesn’t pick or have anyone, then the court assigns a guardian to said person. At this hearing is when the court should deem the person to be eligible to own a firearm or not and or request for a re-evaluation at a later date. Then the person who’s involuntarily committed could have the guardian either give said firearms they own to a family member and or have the guardian to their estate sell them and deposit the proceeds into the person’s account. If there is going to be a re-evaluation, then the guardian just secures the property. Done.

    • Involuntary commitment is prohibited persons qualifier. I don’t think republicans or democrats would get rid of that to be like what you described either.

      So new laws involuntarily committing people would make them prohibited even after they are released.

      If I said something wrong correct me. Not 100% sure.

  8. I’m still trying to figure out how someone is dangerous enough to disarm, but not dangerous enough to arrest.

    “This guy might kill his ex-wife, but at least he won’t use a gun to do it” is better than “this guy might kill his ex-wife, but only if she comes to the jail and gets too close to the bars”?

  9. If you are a conservative with firearms, do not let that fact get out. There are so many snowflakes out there that would gladly straight up lie about you , spiteful people with nothing better to do than see your “my” rights trampled . I certainly don’t have thousands of dollars to provide myself an attorney. I’m also not willing to hand over my small collection of arms , to anybody. There was a gun buy in my area recently where they were offering $100 for handguns. $200 for so called assault rifles. Whom in their right mind is willing to give up an $800 pistol , a $1,500 AR-15 any legally owned firearm , to these scheisters, for pennies on the dollar ? Red flags , so called buybacks, the great democratic scheme to steal our rights away. They are snakes waiting to strike & they are patient. They want to chisel away at our constitution until there’s nothing left of it. Trump is our only option for 2020 !! If we want any semblance of our rights kept intact.

    • “Whom in their right mind is willing to give up an $800 pistol , a $1,500 AR-15 any legally owned firearm , to these scheisters, for pennies on the dollar ?”

      Druggies, Rick. C’mon, you know that. Drug addicts will burgle and steal for a few bucks to get their next fix. I have several now-deceased friends, family, co-workers, etc. who went that route all the way to the end of the line when they finally died from the lifestyle. Your gun doesn’t mean anything 2A-related to them. It only represents a quick $100 to get the next week’s worth of drugs.

  10. If they had sufficient evidence for probable cause, they would simply arrest the suspect for the crime. This means they are looking to tread on US citizens without even the evidence for an arrest, let alone conviction.

  11. There’s one possibility for a good one: One that can only be used on politicians and their armed enforcers.

    Guess what kind will never be implemented?

  12. A good red flag law would require the accused to have a trial and be proven guilty beyond a reasonable doubt of a crime against complainant such as threat of violence prior to losing their rights and being incarcerated. The prosecutor should have the authority to kill the case prior to going to trial if for example the complainant appears to be abusing the system such as but not limited to a racist attempting to disarm a minority or an abusive ex attempting to disarm their intended victim etc. etc. etc. The trial and lawyer will have to be government funded. Lies of the complainant will have to be treated as perjury and/or fraud to insure those inclined to abuse this system rethink bogging down this system with fraudulent cases.

    • “A good red flag would require the accused to have a trial and be proven guilty beyond a reasonable doubt….. let’s stop right here. The whole idea of a red flag law is to do away with that whole process for the sake of expediency.

  13. Red Flag laws make facts out of fiction by lubricating with emotion. Maybe, if, should, possible, could, might and a bunch of other predictive words form the basis for an iron clad order disarming a person.

    Try fighting that in court.

  14. One of the things POTG ignore, or discount as entirely negligible, is “inevitability”. This is the core of any compromise proposal. It is a realpolitik analysis of the curve of history; rights will inexorably be eroded, the only hope is delay. Maybe delay in order to muster enough votes to turn back some encroachment, but delay rather than be crushed.

    Now, before you start shouting, “RTKBA”, “Shall Not Be Infringed”, “Muh rats”, follow along just a little bit longer.

    ¡Viva la Revolución!

    Yeah, right. Good luck with that.

    Ever stopped to ask why no popularly labeled “gun rights organization” has never called for revolution? Not NRA, GOA, RMGO, SAF, NSSF, Guns Safe Life; not one of them. Do they perhaps understand something about the temper, the mood of the nation? Maybe they grasp that in this time in the republic, maybe for a long time, the appetite of “the people” for war to defend their rights is just not there, never gonna be there.

    What’s that? Only 3% of the public is needed to launch and win a revolution? Really? Is this just bravado, or is there data to support the contention? Ok, let’s develop our own.

    How many presumed legal gun owners in the land? 100 million seems acceptable to most. Why then are we, POTG, constantly on fire about losing “are rats”, but the overwhelming number of gun owners are satisfied with current conditions? These 100 million gun owners won’t vote with us, why would they join the fight to overthrow the existing government? Question: why has there never been a poll of gun owners to determine if the majority would go to war to preserve the Second Amendment? (I’ll just leave that here, for now.)

    We often read, here, of the herd of unicorn non-gun owners who can be persuaded to use their votes to overturn gun control laws, if only we would take them to the range for a fun day of turning money into noise. Ok, here’s a thought…after taking your unicorn to the range, ask if they would like to own a gun. If the answer is “No”, well, you have some work to do. If the answer is “Yes”, then present this follow up, “Would you use your firearm to go to war with government to ensure your rights protected by the Second Amendment”? Do this multiple times throughout the year, coordinate the experiment with dozens, no hundreds, of other gun owners entertaining non-gun owners. Compile the results, and publish the results. Are you, right now, this minute, convinced you will get an overwhelming number of “Yes” responses to the critical question?

    All of this was designed to have people think through the realities of gun ownership, and defense of the constitution in this day and age. It is a required exercise in order to understand the politics of compromise in face of inevitability. The Second Amendment is absolute, just like the First (“Congress shall make no law….”). Reality is, the only absolute principle in the constitution is the magic of “a woman’s right to abortion is absolute, and cannot be suppressed for any reason, period.”

    So, faced with “inevitability” of the the current sweep of history, is losing utterly better than stalling? Losing is final; stalling can enable gathering of political force to turn back the tide. Unless, of course, for POTG, and regular gun owners, “inevitable” means “hopeless” to the point of abject despair and inaction.

  15. I have personally dealt with one of these ridiculous cases personally in Illinois I had a family member make allegations against me on a totally ex-Parte basis, without any corroborating witnesses or evidence. This claim was also made 3 months after the alleged “incident” had happened and were motivated from my wife and I having shut the person out of our lives. Still the despite the fact my wife and I had numerous witnesses and supporting evidence we spent 13 months and almost $40,000 in legal fees to get a plenary OP denied and the “emergency” one vacated.

    However just as that was ending, the law then allowed for the “victim” to file a civil case for damages against us based on the same allegations while the OP process was still pending. That action took another two years to fight luckily the legal fees in that case were paid by our homeowner’s policy even though the insurance company sued us in federal court as well to try to get out of it.

    I won’t even get into the dismissed criminal case that included a night in jail after I was essentially framed for having violated the OP or all the problems this caused with my federal job at the VA or with my Army Reserves unit. Not to mention losing my 1st, 2nd and 4th amendment rights for almost 14 months all over something I did not do and from cases that were filed as revenge by an extremely mentally ill individual.

  16. No Red Flag Law can protect us against a person who honestly thinks they have been threatened. Theoretically, the government will prosecute perjury after the fact which will be a hard thing to prove. Many prosecutors will decide it is too much work and too unlikely to be a winning case. I’ll bet the perjurer will have due process, the presumption of innocence and all the other rights we supposedly all have.

  17. This would be laughable if it weren’t so serious. Call a cop over and tell him you can read the guy in the brown hoodies mind and he is about to rob Fort Knox, bet you be the one getting locked up. Sure you get locked up before you get found guilty, but you don’t get locked up before you allegedly commit a robbery unless maybe you planning it with an under cover cop. Aah shucks, to hell with the Constitution, who needs all them freedoms anyways. Just makes for too many choices. Most people ain’t smart enough or qualified to make without the great leaders help.

  18. Finally someone wrote a great article expounding on what I’ve been saying for months!

    The term “due process red-flag law” is an oxymoron. It cannot exist because the two concepts are mutually exclusive.

  19. In some states, they can use “red flag laws” to seize your guns (in essence, “arresting” your guns) not just without any crime committed, but based on membership in a politically incorrect group.

    This weekend there was news from the Pacific Northwest (I forget whether it was Washington or Oregon about some white supremacist who wasn’t arrested (no crime committed), but had his guns seized under the state’s “red flag law” simply because he was a white supremacist. Now, I have no sympathy for white supremacist beliefs, but people who have those beliefs ought to have 1st Amendment rights of free speech as well as 2nd Amendment rights just like the rest of us, as long as they’re not a criminal.

    Of course, the news called it a “vast arsenal of military-style weapons” or STLT, but it was only five guns, including a pump-action shotgun and a pistol, which is hardly a vast arsenal of anything (although there were also several stripped lowers, which the news called “gun components”). But the guns were black, and therefore scary-looking, so the TV news called it a “vast military arsenal of military-style weapons” just because all five guns were black! What would Freud say about the media’s fear of things that are long, hard, round, and black, LOL?

    Maybe we should all have our HD weapons painted pink so nobody can call it an “assault” anything, LOL, and so if it gets seized in a “red flag” scheme, the TV cameras won’t have anything scary-looking to film, LOL. Personally, I hate the color pink, so I wouldn’t, and most men would be embarrassed to be seen with a pink gun, but for the ladies reading this, choose a pink gun for your home-defense gun, and even an anti-gun New York, New Jersey, or California jury will have difficulty convicting you with a straight face for using a pink gun to shoot an armed home invader intent on killing or raping you! Because anti-gun people think it’s a gun’s looks that makes it dangerous, so beat them at their own game by choosing pink if you’re a lady, and stainless steel (with pearl-handled grips like General Patton) if you’re a man.

  20. Beside the 2nd amendment, Red Flag laws are a violation of the 1st, 4th, 5th, 6th, 8th & 14th amendments in one way or another. Also, they are a violation of 18 US Code ss242 & 18 US Code 922.
    If this is where the Heritage Foundation stands, my supports ENDS now!

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