Protective orders; How far should they go?

[Brett Bellmore]

Since some of us here seem to think that it's actually reasonable to disarm people subject to protective orders, while others think it's insane, let's have it out.

I'm on the "it's insane" side of things.

1. It's way too easy to get a protective order. No proof needed, it's routine boilerplate in divorces in some places.

2. If I'm verbally harassing you, a protective order won't demand that I take a vow of silence, just that I not talk to YOU! If it's alleged that I'm threatening you with violence, (If it could be credibly proven I could be prosecuted, not subjected to an order, it's my understanding.) isn't the appropriate response that I be ordered to avoid you, not that I be flatly disarmed?

3. Stripping someone of a basic right is something no judge should be able to do by themselves, it should require a jury trial. After all, it's really a punishment, right up on a par with conviction for a felony.

Your thoughts?

 

[DAVID NANCARROW]

Pretty much my sentiments. If the prosecutor has a case for an alleged threat, then it should go in front of a jury-and thats that.
I cannot see how any citizen can take away your rights without due process. If that were the case, why don't we file a peace bond against Swinestein and all the elitests of this land and disarm them without benefit of their constitutional rights? I'm gritting my teeth when I say this in their case, but its just flat wrong.
Bottom line: If we give the goverment the right to revoke our rights without due process, we are in huge trouble!

 

[RenegadeX]

The linkage between protective order and guns is purely political, to make yet another class of law-abiding Americans not law-abiding. What about access to blunt objects, knives, or 767 training, or ANFO? All these can be used to kill too. What if you make your living via guns, such as a dealer or LEO?


The bottom line is this:

If you really think somebody is about to use a weapon to kill someone, then Call the Police and have them LOCKED UP IMMEDIATELY!!!! To do anything else is complete and utter negligence.

 

[bruels]

Any temporary restraining order issued is supposed to be followed up by a hearing to see if the order should be continued by a more permanent order. In the PDRK(CA), the order could be extended up to three years.

Hopefully at the hearing, saner heads will prevail and the restrained person is able to present evidence that he or she has never harmed or threatened anyone with bodily harm. Of course, if you are the restrained person and are known for having a hot temper, this hearing may not go in your favor.

If the hearing goes in the favor of the restrained person, the order can be modified to not include prohibition of possession of weapons, or the order dismissed because the petitioner has not presented sufficient evidence that the restrained person is a danger to their safety.

 

[Betty]

As I have been through this situation before, I can say that my process in getting an Order of Protection was a slow one.

My psychotic ex-boyfriend (you can do a search to read about that little story) had it coming to him, and I am not sorry. As for his rights to legally purchase a gun being permanently winged, that was the result of his actions, not mine. Had he left me alone, had he not threatened to “take everybody down” at my workplace, had he not threatened my co-workers, employer, and client, he would not have been arrested for harrassment and had the Order filed against him. He did it to himself.

I already had three police reports against him, and none of these did anything, or even faze my ex. He lived in a different county, and the logistical and lack of manpower problems prevented a cop from driving an hour away to nail him for a misdemeanor harrassment warrant. It could be months or even years before he would get arrested for the warrant! And what was I supposed to do in the meantime? Dragging him into court for the Order of Protection was the only legal recourse I had, and I only managed that after months of frustration. I didn’t start out wanting the order, I wanted to throw his butt in jail for a few nights, but that wasn’t going to happen.

I got an Ex Parte Order of Protection, a temporary and immediate order filed until a court date was set. He was served about a month later. When the trial came around, he decided not to show up to defend himself. I got my one year order or protection by default, (it expires on the 23rd of this month) and have to carry a copy wherever I go. I do the same with my gun.

Months afterwards, he must’ve wandered into my county, and a cop probably did a routine license plate check and found out he had an outstanding warrant. The trial was set for a few months later, and as the prosecution’s witness, I was there to confront him. BellSouth played games and didn’t turn over phone records in time, so the trial was rescheduled two months later. He had no lawyer, so he was the one to question me directly. He tried every maneuver, every evil stare, intimidating gesture, nonsensical questions and snide comments to scare and discredit me. He got 6 months probation and anger management classes. The judge saw he was full of crap, and asked if he had been in trouble with the law before. The response was a quick, downcast look.

And then I saw his criminal record. Turns out he probably wouldn’t have been able to legally buy a gun anyways, since he has numerous DUI’s and .... assault. Funny what you find out after the fact.

The scary thing? He knows very well that I am armed. He’s seen my guns before. He never liked me carrying one because “he was there to protect me”. And what was to protect me against him?

Yes, some women have shamefully abused this part of the law, but in my case, I did it because I had to, it was the only thing I could legally do, and it worked. It’s not a kevlar vest, but it got the message through his thick skull that I meant business. It was the paper trail I needed in case this jerk really did end up doing bodily harm to me (I picture shooting him in self-defense and the prosecutor says: “Well, miss, you say this man had been harrassing you for some time, but we don’t see any records of it.”)

I think the lawmakers made it illegal for those with Orders against them to own guns because they believe it keeps the victims from being harmed. But like any law, it is only abided by those who care to follow it. And last time I checked, people were murdered by knives, strangulation, and rat poison. Heck, I could kill you with a whiffle bat if I really wanted too.

My ex has a shotgun under his bed, and I haven’t tattle-taled.

 

[tc556guy]

As indicated in another thread, I am in favor of including the firearms seizure cluse in OOP's. Yes, there have been cases of false reports. That doesn't detract from the fact that there have been far more legitimate complaints.

 

[Destructo6]

runt_of_the_litter, your situation is the proof portion. There was/is a verifiable history to back up your claim.

Almost as a matter of fact, here in CA, that with a legal separation, you get a restraining order for free. It's a rubber stamp affair. I think this is insane.

 

[RenegadeX]

As indicated in another thread, I am in favor of including the firearms seizure cluse in OOP's.

What about knives, or other deadly weapons? Just look Nicole Simpson for an example of someone who needed an PO that included a knife seizure. And why stop there? If we are going for a full court press on prior restraint and denial of due process, why not just throw the person in jail until the divorce is settled? At least then we can be assured s/he will not be able to committ a DV, which as Emerson showed, can march right down to the gun store and buy a gun.

And one more question, what if you are an LEO? Should you be prohibited from firearm possession, and effectively fired? Or do they get special treatment?

 

[USP45]

http://www.txnd.uscourts.gov/PDFs/emers_2.pdf

18 U.S.C. §922(g)(8) is unconstitutional because it allows a state court divorce
proceeding, without particularized findings of the threat of future violence, to automatically
deprive a citizen of his Second Amendment rights. The statute allows, but does not require, that
the restraining order include a finding that the person under the order represents a credible threat
to the physical safety of the intimate partner or child. 18 U.S.C. § 922(g)(8)(C)(i). If the statute
only criminalized gun possession based upon court orders with particularized findings of the
likelihood of violence, then the statute would not be so offensive, because there would be a
reasonable nexus between gun possession and the threat of violence. However, the statute is
infirm because it allows one to be subject to federal felony prosecution if the order merely
“prohibits the use, attempted use, or threatened use of physical force against [an] intimate
partner.” 18 U.S.C. § 922(g)(8)(C)(ii).

I guess this is just too much to ask?

 

[Jim March]

ROs have their place in "making somebody's intent absolutely clear" - especially to the cops.

I know for damnsure it gets abused. Not all the time of course, our ROTL is a good example. But I personally know three guys who've been screwed by false restraining orders. I helped one guy document his story in extreme detail, a portion of which is online here:

http://www.ninehundred.com/~equalccw/johnlaws - warning, long load times, tons of scanned documents, but seriously worth it if you want to see the worst RO abuse case ever recorded.

The disarmament provisions of ROs can of course be argued either way.

Rather than opening that can o' worms, I believe the top priority should be to eliminate the fraud.

How?

Enforce perjury laws. That means letting the person restrained come back into court at any time during the period of restraint with proof that lies backed the original order - and get the order dropped plus get criminal charges put out against the liar, if it's blatant enough.

Go to the link above, and look at the sheer humber of lies Howard wasn't allowed to document.

 

[Betty]

Renegade X: "And one more question, what if you are an LEO? Should you be prohibited from firearm possession, and effectively fired? Or do they get special treatment?"

I know part of the answer to that; my friend who owns a pawn shop has actually seen a couple police officers turned down for firearms purchases through the instant background check. Apparently, whatever these officers did (domestic violence, etc., it didn't even have to be an order of protection) prevents them from purchasing, but they could still legally carry and use their department issued weapons. Interesting, huh!

 

[RenegadeX]

That is a DV conviction. I do not think a NICS check can pick up a PO.

Did the ATF come out and arrest them? It is a felony to even attempt to purchase a firearm if you are not eligible. Just another example of a law with no teeth, that only inconveniences the good guy, while allowing the bad guy to continue to prey....