The 2A and domestic abuse

[ladder13]

“On the last day of its latest term, the Supreme Court announced plans to hear arguments in a case that asks whether the government can prohibit domestic violence offenders from owning firearms, setting up another major Second Amendment test before the nation’s highest court.”



Should domestic abusers have the right to be armed? The Supreme Court could upend protections for survivors | The Independent

 

[mtgianni]

The last time this came around many LEO's were to be ineligible to pack a firearm as someone had filed a restraining order against them. Disgruntled spouse in a divorce, separation or similar situation. It takes almost nothing to get one.

 

[deadin]

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

 

[biku324]

Many, many murders I had to deal with were DV homicides committed with whatever firearm was available. A TRO is fairly easy to get for good reason. They often don't do much to stop violence, and victims who got a TRO before being murdered or beaten and raped aren't uncommon.

 

[TheTinMan]

Due process and innocent until proven guilty. Include those 2 concepts and I’m OK. Leave either out and I object.

 

[glowe]

I guess the question is what is the definition of "domestic violence offenders". If it means a convicted felon, then existing laws should be applied that already deny a felon from purchasing or possessing a firearm.

Most sources state that one in four women in relationships or marriages are victims of physical abuse. Those men get absolutely no respect from me. Police officers are not immune to the issue, dealing with domestic violence calls and dealing with other officers who are abusers as well.

 

[BSA1]

Disgruntled spouse in a divorce, separation or similar situation. It takes almost nothing to get one.

The legal problem with TRO’s is when they are based on unproven allegations. Divorces are often very emotional cases especially if there is another woman involved. Wive’s can have a lot of anger over the feeling of betrayal by their husband. Then things can get ugly with a lot of he said / she said back and forth.

Some (many?) divorce lawyers feed this anger to their client. I know of a lawyer that files for a TRO in most of his cases. It doesn’t matter if the allegations are true. It is a strategy to make the husband look bad to the judge increasing the amount of the settlement. The longer and nastier a divorce drags out the more money the lawyer makes.

So let’s agree the embattled soon-to-be ex’s should not have contact with each outside of the Courtroom. What does that have to do with loss of the 2A’s rights? By possibly protecting the battered/endangered spouse justifies denying the other partner their right of self-defense or employment?

 

[Doug M.]

The only thing the paper does is support the self-defense claim when there is a significant use of force later. I've seen a couple of those. In most cases, if the paper actually has an effect, it was not needed.

 

[biku324]

I was on rhe board of two separate domestic violence shelters. Nearly all of the victims, almost all women, tried everything they could to stop the violence without getting strangers involved, including with TROs. My experience is that falsely accused DV perpetrators are a lot like police psychogical crime profilers - they exist a lot in popular culture, not so much in real life.

 

[pawngal]

In a true abusive situation, a restraining order is nothing but a piece of paper. Most abusers will continue the same pattern whether with the same "protected" person or will move on to another victim.
I agree on banning firearms sales to anyone convicted, even if a misdemeanor as those are often plea bargained down.
Are there different types of restraining orders? Like permanent/temporary?
Is a No Contact Order different?

 

[326MOD10]

I believe the overturning of this law would be a mistake.

Having seen first hand and second hand the effects of an abusive spouse, served with a restraining order who had access to a firearm, I can assure you this is in place for a reason.

In the rare instance it is a vindictive ex-spouse those things tend to get washed out in the long run. I would rather see someone get inconvenienced while this gets worked out than to find another loved one murdered that could have been avoided.

But like said above a TRO is only a piece of paper and ultimately won't be the protecting factor.

 

[ISCS Yoda]

Well, it wasn't two weeks after she got married that
Wanda started gettin' abused
She'd put on dark glasses and long sleeved blouses
And makeup to cover a bruise
Well, she finally got the nerve to file for divorce
She let the law take it from there
But Earl walked right through that restraining order
And put her in intensive care

Songwriters: Dennis Linde
Goodbye Earl lyrics © Kobalt Music Publishing Ltd., Sony/ATV Music Publishing LLC

I despise domestic abusers but innocent until proven guilty is a critical foundation of American law.

 

[Rodan]

It all comes down to due process.

Possession of firearms is a constitutionally recognized right that should not be abrogated for misdemeanor convictions. A conviction for a felony offense should be the bar for being a prohibited possessor. In many states a misdemeanor DV offense is prosecutable as a felony for serial offenders, so it is possible to prevent truly violent individuals from legally possessing guns.

Court orders prohibiting the possession of firearms as part of a restraining or protective order should also be subject to due process, and should not be enforceable prior to hearings where the plaintiff must justify the order, and the defendent has the right to appear. Currently, in most jurisdictions the defendent has no notice until they are served and the demand is made for firearms to be surrendered, usually within 24 hours.

This is widely abused, and the defendent then has to 'prove their innocence' to a judge to get the order quashed, and deal with all the expenses thereof, in addition to the hassle of surrendering or storing their firearms in the meantime.

In 27 years on the job, it was my experience that court orders of this type were about as effective as gun control legislation in stopping violent offenders.

 

[Bald1]

I’m confused????? If you are a domestic violence offender doesn’t that mean you were convicted of domestic violence? If so aren’t you already prohibited?

 

[erikpolcrack]

When my sister-in-law was finally dumping her good-for-nothing husband years ago in California, her lawyer wanted her to sign a request for a restraining order claiming domestic abuse of her and their three kids. She initially refused, pointing out that no such abuse had ever taken place. He told her not to worry, that it was just SOP at their law firm, since it put the other party on the defensive, and looked good when the actual divorce/custody/alimony hearings took place. She finally relented and signed. He ended up losing the couple of guns he owned. Things like that make me sympathetic to those opposed to the no-guns-for-abusers laws, but I'd sure hate to see more domestic violence, armed assaults, and homicides because it was declared unconstitutional. Whichever way it goes, some innocent people are going to be wronged, but that seems to happen a lot in our current society. Gone are the days you could bring your rifle or shotgun to school and stick it in the cloakroom to go hunting with your buddies right after school.

 

[LoboGunLeather]

I’m confused????? If you are a domestic violence offender doesn’t that mean you were convicted of domestic violence? If so aren’t you already prohibited?

The discussion is related to restraining orders (aka: protective orders, peace bonds, several other nomenclatures in various jurisdictions). Such orders require no conviction and are typically issued as an ex parte action; i.e.: no trial, no public hearing, only the statement of the complainant considered in a private proceeding, no prior notice to the respondent, no right to contest, no right to legal counsel, basically no rights at all. Whether or not a domestic violence prosecution follows is of no consequence; once such an order is served it remains in effect until further action of the court.

Contesting such an order is a civil proceeding, completely separate from any criminal actions arising from the alleged acts. The named respondent must seek redress by formal petition, a process that can take many months and generate thousands of dollars in legal fees and costs. Frequently, the respondent is placed into a position of proving that the original allegations were false (in other words, guilty until proven innocent). Even when such an order is quashed, vacated, overturned (whatever terminology might be applied in a specific jurisdiction) the residual effects may linger in court records (publicly obtainable), and may trigger disqualifications of firearms acquisitions, licenses, permits, etc, for years. Not all courts are fastidious in publishing every action or sealing outdated or superceded documents.

In some states (Colorado is one) every petition for divorce includes a Temporary Protective Order as a matter of form, whether requested by the petitioner or not. Even uncontested actions filed by mutual consent may create a public record branding one party (or both) as being subject to a restraining order and thus prohibited from possessing, acquiring, or owning a firearm.

Over the years I have dealt with domestic violence victims many times, frequently assisting in obtaining and serving protective orders. I don't have a problem with the processes, but I do have a problem with applying results in such a way that due process of law is effectively denied to anyone not having the wherewithal to overturn and bury unwarranted results in perpetuity, leaving them branded for life without so much as a trial in open court.

 

[Rpg]

The legal problem with TRO’s is when they are based on unproven allegations. Divorces are often very emotional cases especially if there is another woman involved. Wive’s can have a lot of anger over the feeling of betrayal by their husband. Then things can get ugly with a lot of he said / she said back and forth.

Some (many?) divorce lawyers feed this anger to their client. I know of a lawyer that files for a TRO in most of his cases. It doesn’t matter if the allegations are true. It is a strategy to make the husband look bad to the judge increasing the amount of the settlement. The longer and nastier a divorce drags out the more money the lawyer makes.

So let’s agree the embattled soon-to-be ex’s should not have contact with each outside of the Courtroom. What does that have to do with loss of the 2A’s rights? By possibly protecting the battered/endangered spouse justifies denying the other partner their right of self-defense or employment?

Temporary restraining orders or orders of protection are temporary. They expire after a couple of weeks UNLESS extended or made permanent AFTER A HEARING BEFORE THE JUDGE IN WHICH YOU HAVE THE RIGHT TO APPEAR AND PRESENT EVIDENCE AND THE PETITIONER HAS TO PROVE they are entitled to extend or make the order permanent. Due process is provided and protected.

That being said, one of the first issues any competent divorce attorney must consider is whether a temporary order of protection should be sought on filing the divorce. It’s not uncommon for folks discovering that their spouse is divorcing them to respond with violence or threats of violence. When the OP has a history of violence, drug or alcohol abuse, has a closet full of guns, or has made threats, it’s malpractice not to seriously consider applying for one.

A temporary order of protection has the immediate effect of separating the parties and preventing one of them from accessing the home. It effectively awards the home (and kids) to the applying spouse until the hearing on making the order permanent.

Some attorneys routinely apply for one as a way of temporarily obtaining the home and kids for their client. Clients love lawyers who get immediate results.

Judges are under a lot of pressure not to refuse to issue the temporary order. No judge wants to read about the unsuccessful applicant and kids being murdered shortly after refusing the order. That’s not a good move for a judge who wants a lengthy career on the bench.

 

[BSA1]

Temporary restraining orders or orders of protection are temporary. They expire after a couple of weeks UNLESS extended or made permanent AFTER A HEARING BEFORE THE JUDGE IN WHICH YOU HAVE THE RIGHT TO APPEAR AND PRESENT EVIDENCE AND THE PETITIONER HAS TO PROVE they are entitled to extend or make the order permanent. Due process is provided and protected.

That being said, one of the first issues any competent divorce attorney must consider is whether a temporary order of protection should be sought on filing the divorce. It’s not uncommon for folks discovering that their spouse is divorcing them to respond with violence or threats of violence. When the OP has a history of violence, has a closet full of guns, or has made threats, it’s malpractice not to seriously consider applying for one.

A temporary order of protection has the immediate effect of separating the parties and preventing one of them from accessing the home. It effectively awards the home (and kids) to the applying spouse until the hearing on making the order permanent.

Some attorneys routinely apply for one as a way of temporarily obtaining the home and kids for their client. Clients love lawyers who get immediate results.

Judges are under a lot of pressure not to refuse to issue the temporary order. No judge wants to read about the unsuccessful applicant and kids being murdered shortly after refusing the order. That’s not a good move for a judge who wants a lengthy career on the bench.

Divorce is a CIVIL Court proceeding not a CRIMINAL one. The rules of evidence is much lower and as is the standard for a finding for the plaintiffs. Even a finding of guilty doesn’t result in the defendant losing his 2A rights. (For example consider the O.J. Simpson case. Not guilty of murder in Criminal Court but the jury believed he did it and found for the plaintiffs in their Civil lawsuit).

With TRO the rule of evidence is even lower. As pointed out some lawyers include filing for a TRO just as normal matter of divorce paperwork.

As you point out during the time period the TRO is granted and the defendant has a hearing in Court the accused is denied the right to possess a firearm(s). If the Police has possession of the firearm(s) imagine what kind of condition they may be in. Or maybe the Police is slow to comply with the Court Order to release the firearm(s).

The Principle of protecting a woman from a abusive ex-partner is noble but in actual practice badly abused by lawyers and willing judges.

 

[stansdds]

I view TRO's and ERPO's as good intentions, but bad outcomes as civil rights are violated.

 

[pantannojack]

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

Read the James Mitchner novel: "The Source"; About forming Jewish social laws and concerning "The Fifty" hottest days of Summer. Not saying I support it but, I was involved with a woman who had been married three times before. All of the guys had beat her. She kicked me out because I would not fight with her. She married again later and the forth guy beat her up.