The 2A and domestic abuse

[Rodan]

That's not even slightly true.

I honestly don't understand why you're trying to obfuscate how these orders work in the real world.

While the 'no firearms' clause in protective/restraining orders is technically optional, it's very rare that it is not invoked when those orders are between husband/wife/domestic partners.

 

[biku324]

Sorry - that's not true either.

 

[steelslaver]

It is however true that most of us do not live in New Mexico.

Plus, it sure looks like it is a lot more than remotely true if the information provided by the ATF is correct.

ATF Information 3310.2
Revised September 2011
P ROTECTION O RDERS AND FEDERAL FIREARMS PROHIBITIONS
Persons subject to a qualifying protection order under federal law are generally prohibited from possessing any firearm
or ammunition in or affecting commerce (or shipping or transporting any firearm or ammunition in interstate or foreign
commerce, or receiving any such firearm or ammunition). Violation of this prohibition while the order remains in effect
is a federal offense punishable by up to ten years imprisonment. Title 18 U.S.C. §§ 922(g)(8), 924(a)(2)

For the complete text from the ATF please visit
https://www.atf.gov/resource-center...al-firearms-prohibitions-atf-i-33102/download

 

[biku324]

"...qualifying protection order...." is a permanent, not temporary, restraining order.

If no one threatened or used a firearm in a DV incident, firearms can't be legally seized. For non-DV incidents, 'red flag' criteria would have to be met to seize firearms.

The notion that a DV incident call, a TRO, or a simple divorce proceeding where use of a firearm was NOT threatened is going to always, very often, or even fairly regularly result in firearms being seized by police is just untrue. And not only in New Mexico.

 

[Rodan]

The notion that a DV incident call, a TRO, or a simple divorce proceeding where use of a firearm was NOT threatened is going to always, very often, or even fairly regularly result in firearms being seized by police is just untrue. And not only in New Mexico.

You're just flat out wrong.

Or, you're trying to play lawyer, parsing things into some obscure circumstance to prove your point. Firearms are rarely "seized by police" in these circumstances. They must be surrendered, or given to a third party for safekeeping, but the end result is they cannot be possessed by the subject of the order under the law as currently written. Which is the whole point of this thread.

I worked uniform patrol right up to the day I retired and dealt with this stuff daily. The vast majority of domestic protective orders in the real world make the defendant a prohibited possessor.

 

[biku324]

No - the vast majority of protective orders are temporary and absent evidence of the use or threatened use of a firearm in some DV incident do not make the respondent to the order a prohibited possessor. If they are instead a defendant (criminally charged), that's another entirely different matter.

I'm not yet retired, thanks.

 

[Rodan]

New Mexico DV Protective orders are good for 6 months. Do you consider that "temporary"?

Under Federal law, a person who is the subject of a New Mexico DV Protective order is a prohibited possessor. The only requirement is that the protective order prohibits acts or threats of physical violence. There is NO Federal requirement that a firearm was used or threatened to be used.

 

[biku324]

NM TROs are good for 72 hours. See post 60.

 

[Rodan]

NM TROs are good for 72 hours. See post 60.

Once again, you're talking tangerines while the rest of us are talking apples.

 

[steelslaver]

If you would take time to READ the ATF statement I linked to you would see there is NO mention of firearms in the list of things necessary to make it a qualifying order.

ATF Information 3310.2
Revised September 2011
P ROTECTION O RDERS AND FEDERAL FIREARMS PROHIBITIONS
Persons subject to a qualifying protection order under federal law are generally prohibited from possessing any firearm
or ammunition in or affecting commerce (or shipping or transporting any firearm or ammunition in interstate or foreign
commerce, or receiving any such firearm or ammunition). Violation of this prohibition while the order remains in effect
is a federal offense punishable by up to ten years imprisonment. Title 18 U.S.C. §§ 922(g)(8), 924(a)(2).
A qualifying court order may be issued by a criminal court or a civil court, such as divorce court, family court, magistrate
or general jurisdicition court. The following list enumerates the elements that define a qualifying protection order under
the Federal firearms prohibition. Generally, a defendant/respondent subject to a protection order that includes one
element (indicated by a diamond) from each section listed below is covered by the Federal firearms prohibition.
FOR FURTHER INFORMATION ABOUT SECTION 922(g)(8) OR FEDERAL FIREARMS PROHIBITIONS GENERALLY , CONTACT YOUR
LOCAL FIELD DIVISION OF THE B UREAU OF A LCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES BY CALLING 1-800-800-3855, OR
VISIT WWW . ATF . GOV/ FIELD /. FOR FURTHER INFORMATION ABOUT DOMESTIC VIOLENCE , PLEASE CONTACT THE NATIONAL
CENTER ON PROTECTION ORDERS AND FULL FAITH AND CREDIT AT 1-800-903-0111, PROMPT 2, OR VISIT THEIR WEB SITE AT
WWW .BWJP. ORG .
I. HEARING
 Defendant/Respondent received actual notice and had an opportunity to participate.
II. INTIMATE PARTNER
Plaintiff/Petitioner is an intimate partner of the Defendant/Respondent,
(18 U.S.C. § 921(a)(32)). An intimate partner may include:
 A spouse or former spouse of the Defendant/Respondent;
 A person who cohabitates or who has cohabitated with the Defendant/Respondent
(i.e., who resides/resided together in sexual/romantic relationship); or
 A person with whom the Defendant/Respondent has or had a child in common
(regardless of whether they ever married or cohabitated).
III. RESTRAINS FUTURE CONDUCT
 The order restrains Defendant/Respondent from harassing, stalking, or threatening the
intimate partner, child of the Defendant/Respondent, or child of the Defendant/Respondent's
intimate partner; or
 The order restrains Defendant/Respondent from engaging in other conduct that would place
the intimate partner in reasonable fear of bodily injury to the partner or child.
IV. CREDIBLE THREAT OR PHYSICAL FORCE
 The order includes a finding that Defendant/Respondent is a credible threat to the physical
safety of the intimate partner or child; or
 The order, by its terms, explicitly prohibits the use, attempted use, or threatened use of
physical force against the intimate partner or child that would reasonably be expected to
cause bodily injury



Your experiences in NM and the rest of the world have no bearing on the rest of the US. Obviously Rodan's experience in nearby AZ differs from yours.

 

[biku324]

Once again, you're talking tangerines while the rest of us are talking apples.

It's law - details matter.

 

[biku324]

If you would take time to READ the ATF statement I linked to you would see there is NO mention of firearms in the list of things necessary to make it a qualifying order.

ATF Information 3310.2
Revised September 2011
P ROTECTION O RDERS AND FEDERAL FIREARMS PROHIBITIONS
Persons subject to a qualifying protection order under federal law are generally prohibited from possessing any firearm
or ammunition in or affecting commerce (or shipping or transporting any firearm or ammunition in interstate or foreign
commerce, or receiving any such firearm or ammunition). Violation of this prohibition while the order remains in effect
is a federal offense punishable by up to ten years imprisonment. Title 18 U.S.C. §§ 922(g)(8), 924(a)(2).
A qualifying court order may be issued by a criminal court or a civil court, such as divorce court, family court, magistrate
or general jurisdicition court. The following list enumerates the elements that define a qualifying protection order under
the Federal firearms prohibition. Generally, a defendant/respondent subject to a protection order that includes one
element (indicated by a diamond) from each section listed below is covered by the Federal firearms prohibition.
FOR FURTHER INFORMATION ABOUT SECTION 922(g)(8) OR FEDERAL FIREARMS PROHIBITIONS GENERALLY , CONTACT YOUR
LOCAL FIELD DIVISION OF THE B UREAU OF A LCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES BY CALLING 1-800-800-3855, OR
VISIT WWW . ATF . GOV/ FIELD /. FOR FURTHER INFORMATION ABOUT DOMESTIC VIOLENCE , PLEASE CONTACT THE NATIONAL
CENTER ON PROTECTION ORDERS AND FULL FAITH AND CREDIT AT 1-800-903-0111, PROMPT 2, OR VISIT THEIR WEB SITE AT
WWW .BWJP. ORG .
I. HEARING
 Defendant/Respondent received actual notice and had an opportunity to participate.
II. INTIMATE PARTNER
Plaintiff/Petitioner is an intimate partner of the Defendant/Respondent,
(18 U.S.C. § 921(a)(32)). An intimate partner may include:
 A spouse or former spouse of the Defendant/Respondent;
 A person who cohabitates or who has cohabitated with the Defendant/Respondent
(i.e., who resides/resided together in sexual/romantic relationship); or
 A person with whom the Defendant/Respondent has or had a child in common
(regardless of whether they ever married or cohabitated).
III. RESTRAINS FUTURE CONDUCT
 The order restrains Defendant/Respondent from harassing, stalking, or threatening the
intimate partner, child of the Defendant/Respondent, or child of the Defendant/Respondent's
intimate partner; or
 The order restrains Defendant/Respondent from engaging in other conduct that would place
the intimate partner in reasonable fear of bodily injury to the partner or child.
IV. CREDIBLE THREAT OR PHYSICAL FORCE
 The order includes a finding that Defendant/Respondent is a credible threat to the physical
safety of the intimate partner or child; or
 The order, by its terms, explicitly prohibits the use, attempted use, or threatened use of
physical force against the intimate partner or child that would reasonably be expected to
cause bodily injury



Your experiences in NM and the rest of the world have no bearing on the rest of the US. Obviously Rodan's experience in nearby AZ differs from yours.

TROs are 'ex parte,' meaning no hearing. They are NOT '..qualifying protection orders...' prohibiting firearms possession under Federal law.

 

[Rodan]

It's law - details matter.

Yes, it does.

You're focusing on the very specific circumstance of a TRO in New Mexico. The rest of us are discussing how being the subject of a Protective order abrogates your right to possess firearms under Federal Law, the subject of the court case that this thread is about.

 

[biku324]

That's fair.

I see nothing laudable about the case.

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.1 On December 1, after selling narcotics to an individual, he fired multiple shots into that individual's residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver's car. On December 22, Rahimi shot at a constable's vehicle. On January 7, Rahimi fired multiple shots in the air after his friend's credit card was declined at a Whataburger restaurant.

Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi's alleged assault of his ex-girlfriend. https://cases.justia.com/federal/appellate-courts/ca5/21-11001/21-11001-2023-02-02.pdf

 

[Old cop]

Where does it say that it's legal to beat your spouse?

I had a man ask me why it was against the law for him to "discipline" his wife in his own house. That was the early '70s and we could not make an arrest for an assault not committed in our presence. It's something I've never forgotten and I won't post what I said to him. It'll be interesting to see how the Supreme Court rules, and what their thinking was.

 

[Rodan]

I see nothing laudable about the defendant.

FTFY

The case is not about the defendant (regardless of how unsavory he may be), it's about abrogating a Constitutionally recognized right and whether the bar should be higher than a conviction for a misdemeanor, or a protective order.

IMHO, it should be higher.

 

[biku324]

I'll remain anti-Rahimi.

 

[BC38]

"...qualifying protection order...." is a permanent, not temporary, restraining order.

If no one threatened or used a firearm in a DV incident, firearms can't be legally seized. For non-DV incidents, 'red flag' criteria would have to be met to seize firearms.

The notion that a DV incident call, a TRO, or a simple divorce proceeding where use of a firearm was NOT threatened is going to always, very often, or even fairly regularly result in firearms being seized by police is just untrue. And not only in New Mexico.

And what level of proof is required to say use of a firearm WAS threatened - resulting in the DV or TRO making the person a prohibited person - at least temporarily.
Since a threat is generally verbal, the answer in the majority of those cases, it is simply the word of the person requesting the TRO or DVPO. If they make that claim then the judge is going to act on it because of the potential consequences IF the claim should actually be valid.
And as others have pointed out, ANY and ALL DVPOs render the person they are filed against a prohibited person AUTOMATICALLY under Federal Law. Just because NM doesn't (usually) go to confiscate the person's guns does NOT change the fact that they are at that point in time a prohibited person, and that therefore they are in legal jeopardy if they don't make some kind of arrangement to have their firearms removed from their control.
GET IT?
Not that any of those points are going to change your obvious opposition to the majority of people having gun rights. In this and so many other threads you have made it perfectly clear that you are in favor of most proposals and laws that restrict 2nd Amendment rights for the rest of us.
You've make it quite clear that you are one of those LEO types who sees the issue as an US (Law Enforcement) and THEM (civilians) situation, and us "regular" citizens as being unworthy of the rights you as a LEO should have.

 

[BC38]

I'll remain anti-Rahimi.

...and PRO every other ACCUSED person's rights being suspended just as you believe that his should be.

 

[steelslaver]

I do believe that THE 7 judges shall shortly render the FINAL and binding legal opinion.