The 2A and domestic abuse

[WCCPHD]

Maybe the last phrase below should have something do do with lifetime loss of 2A rights when other rights are restored????

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

14th Amendment to the US Constitution

 

[HeyJoe]

Washinton has expanded the list of misdemeanors that impact firearms rights. Other than DV, I suspect that most of them are feel good stuff without any empirical foundation.

can you give some examples of what those misdemeanors are?

 

[Doug M.]

It is one of the amendments to RCW 9.41.040(2)(a) (UPF 2nd). It is not on the RCW page yet, just the updates, and it is quite unpleasant to copy and paste.

(2)(a) A person, whether an adult or juvenile, is guilty of the
crime of unlawful possession of a firearm in the second degree, if
the person does not qualify under subsection (1) of this section for
the crime of unlawful possession of a firearm in the first degree and
the person owns, accesses, has in ((his or her)) the person's
custody, control, or possession, ((or has in his or her control)) or
receives any firearm:
(i) After having previously been convicted or found not guilty by
reason of insanity in this state or elsewhere of ((any)):
(A) Any felony not specifically listed as prohibiting firearm
possession under subsection (1) of this section((, or any));
(B) Any of the following crimes when committed by one family or
household member against another or by one intimate partner against
another, as those terms are defined by the statutes in effect at the
time of the commission of the crime, committed on or after July 1,
1993: Assault in the fourth degree, coercion, stalking, reckless
endangerment, criminal trespass in the first degree, or violation of
the
any provisions of a protection order or no-contact order restraining person or excluding the person from a residence (RCW 10.99.040 or of the former RCW 26.50.060, 26.50.070, and 26.50.130);
(((ii) After having previously been convicted or found not guilty
by reason of insanity in this state or elsewhere of)) (C) Harassment
when committed by one family or household member against another or
by one intimate partner against another, as those terms are defined
by the statutes in effect at the time of the commission of the crime,
committed on or after June 7, 2018;
(((iii) After having previously been convicted or found not
guilty by reason of insanity in this state or elsewhere of a)) (D)
Any of the following misdemeanor or gross misdemeanor crimes not
included under (a)(i) (B) or (C) of this subsection, committed on or
after the effective date of this section: Domestic violence (RCW
10.99.020); stalking; cyberstalking; cyber harassment, excluding
cyber harassment committed solely pursuant to the element set forth
in RCW 9A.90.120(1)(a)(i); harassment; aiming or discharging a
firearm (RCW 9.41.230); unlawful carrying or handling of a firearm
(RCW 9.41.270); animal cruelty in the second degree committed underRCW 16.52.207(1); or any prior offense as defined in RCW
46.61.5055(14) if committed within seven years of a conviction for any other prior offense under RCW 46.61.5055;

A violation of the provisions of a protection order under chapter 7.105 RCW restraining the person or excluding the person from a residence, when committed by one family or household member against another or by one intimate partner against another, committed on or after July 1, 2022; or
(((iv))) (F) A violation of the provisions of an order to surrender and prohibit weapons, an extreme risk protection order, or the provisions of any other protection order or no-contact order not included under (a)(i) (B) or (E) of this subsection restraining the person or excluding the person from a residence, committed on or after the effective date of this section;
(ii) During any period of time that the person is subject to a ((court order)) protection order, no-contact order, or restraining order by a court issued under chapter 7.105, 9A.40, 9A.44, 9A.46, 9A.88, 10.99, 26.09, 26.26A, or 26.26B RCW or any of the former chapters 7.90, 7.92, 10.14, and 26.50 RCW that:
(A) Was issued after a hearing for which the person received actual notice, and at which the person had an opportunity to participate, whether the court then issues a full order or reissues a temporary order. If the court enters an agreed order by the parties without a hearing, such an order meets the requirements of this subsection;
(B) Restrains the person from harassing, stalking, or threatening the person protected under the order or child of the person or protected person, or others identified in the order, or engaging in other conduct that would place the protected person in reasonable fear of bodily injury to the protected person or child or others identified in the order; and
(C)(I) Includes a finding that the person represents a credible threat to the physical safety of the protected person or child or others identified in the order, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the protected person or child or other persons that would reasonably be expected to cause bodily injury; or
(II) Includes an order under RCW 9.41.800 requiring the person to surrender all firearms and prohibiting the person from accessing, having in his or her custody or control, possessing, purchasing, receiving, or attempting to purchase or receive, firearms.

The interesting one to me is the prior offenses under 46.61.5055. Our DUI laws have long been a laughing stock, and it took years to get a felony DUI law. The first version required 4 priors in 10 years; the current version requires 3. A friend of mine had an offender get his TWELTH while pending trial for his 11th. Even at this wimpy level, there are a lot of felony DUIs in this state. Still too weak, and the lack of prosecution resources is a disgrace (it often takes well over a year for results from a blood draw; the system needs to be staffed and equipped to make it a 2 week turn around). A second offense in 7 years is still not a felony (growing up in NY, a second was; in Illinois, a 3rd in twenty years was), but appears to have firearm rights consequences.

 

[steelslaver]

Besides all this, I am sure that TROs are every bit as effective as "gun free zones" or background checks are at preventing criminals from having guns.

 

[Racer X]

It is one of the amendments to RCW 9.41.040(2)(a) (UPF 2nd). It is not on the RCW page yet, just the updates, and it is quite unpleasant to copy and paste.

(2)(a) A person, whether an adult or juvenile, is guilty of the
crime of unlawful possession of a firearm in the second degree, if
the person does not qualify under subsection (1) of this section for
the crime of unlawful possession of a firearm in the first degree and
the person owns, accesses, has in ((his or her)) the person's
custody, control, or possession, ((or has in his or her control)) or
receives any firearm:
(i) After having previously been convicted or found not guilty by
reason of insanity in this state or elsewhere of ((any)):
(A) Any felony not specifically listed as prohibiting firearm
possession under subsection (1) of this section((, or any));
(B) Any of the following crimes when committed by one family or
household member against another or by one intimate partner against
another, as those terms are defined by the statutes in effect at the
time of the commission of the crime, committed on or after July 1,
1993: Assault in the fourth degree, coercion, stalking, reckless
endangerment, criminal trespass in the first degree, or violation of
the
any provisions of a protection order or no-contact order restraining person or excluding the person from a residence (RCW 10.99.040 or of the former RCW 26.50.060, 26.50.070, and 26.50.130);
(((ii) After having previously been convicted or found not guilty
by reason of insanity in this state or elsewhere of)) (C) Harassment
when committed by one family or household member against another or
by one intimate partner against another, as those terms are defined
by the statutes in effect at the time of the commission of the crime,
committed on or after June 7, 2018;
(((iii) After having previously been convicted or found not
guilty by reason of insanity in this state or elsewhere of a)) (D)
Any of the following misdemeanor or gross misdemeanor crimes not
included under (a)(i) (B) or (C) of this subsection, committed on or
after the effective date of this section: Domestic violence (RCW
10.99.020); stalking; cyberstalking; cyber harassment, excluding
cyber harassment committed solely pursuant to the element set forth
in RCW 9A.90.120(1)(a)(i); harassment; aiming or discharging a
firearm (RCW 9.41.230); unlawful carrying or handling of a firearm
(RCW 9.41.270); animal cruelty in the second degree committed underRCW 16.52.207(1); or any prior offense as defined in RCW
46.61.5055(14) if committed within seven years of a conviction for any other prior offense under RCW 46.61.5055;

A violation of the provisions of a protection order under chapter 7.105 RCW restraining the person or excluding the person from a residence, when committed by one family or household member against another or by one intimate partner against another, committed on or after July 1, 2022; or
(((iv))) (F) A violation of the provisions of an order to surrender and prohibit weapons, an extreme risk protection order, or the provisions of any other protection order or no-contact order not included under (a)(i) (B) or (E) of this subsection restraining the person or excluding the person from a residence, committed on or after the effective date of this section;
(ii) During any period of time that the person is subject to a ((court order)) protection order, no-contact order, or restraining order by a court issued under chapter 7.105, 9A.40, 9A.44, 9A.46, 9A.88, 10.99, 26.09, 26.26A, or 26.26B RCW or any of the former chapters 7.90, 7.92, 10.14, and 26.50 RCW that:
(A) Was issued after a hearing for which the person received actual notice, and at which the person had an opportunity to participate, whether the court then issues a full order or reissues a temporary order. If the court enters an agreed order by the parties without a hearing, such an order meets the requirements of this subsection;
(B) Restrains the person from harassing, stalking, or threatening the person protected under the order or child of the person or protected person, or others identified in the order, or engaging in other conduct that would place the protected person in reasonable fear of bodily injury to the protected person or child or others identified in the order; and
(C)(I) Includes a finding that the person represents a credible threat to the physical safety of the protected person or child or others identified in the order, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the protected person or child or other persons that would reasonably be expected to cause bodily injury; or
(II) Includes an order under RCW 9.41.800 requiring the person to surrender all firearms and prohibiting the person from accessing, having in his or her custody or control, possessing, purchasing, receiving, or attempting to purchase or receive, firearms.

The interesting one to me is the prior offenses under 46.61.5055. Our DUI laws have long been a laughing stock, and it took years to get a felony DUI law. The first version required 4 priors in 10 years; the current version requires 3. A friend of mine had an offender get his TWELTH while pending trial for his 11th. Even at this wimpy level, there are a lot of felony DUIs in this state. Still too weak, and the lack of prosecution resources is a disgrace (it often takes well over a year for results from a blood draw; the system needs to be staffed and equipped to make it a 2 week turn around). A second offense in 7 years is still not a felony (growing up in NY, a second was; in Illinois, a 3rd in twenty years was), but appears to have firearm rights consequences.

That 12 DUI situation, there was an oldster in West Seattle like this maybe 20-30 years ago. It was a complete joke. And another older woman. She was councilwoman Gene Godden. no complete records on her. Numerous times the SPD just drove her home. And a wrecker made her car dissapear. She parked in a neighbor's rockery once. I saw it on the rocks before it was gone.

 

[BC38]

For me, this is a tender subject. I see the problem with DV and ROs, is an unspoken institutional prejudice.

For a few months before the accident that disabled me, and for almost a year after it while I was barely ambulatory, I had to flee my home because I was the victim of both physical, verbal, and emotional abuse. Every time I went to the local law enforcement office, I was told to go to the superior court the next business day to seek a TRO. I ended up going back because I could better protect my children there. That happened between 6 to 8 times before TSHTF. Every time the LEOs had difficulty accepting that the man could be the victim. Even after a PRO was issued, the police and state agencies that were drawn in had difficulty accepting that a disabled man was the victim. I was later told by a victim advocate that every time that I approached the police , I could/should have been issued an ETRO.

Until the institutional bias towards who could be the victim of DV is removed, I can't support any legislation linking DV with the loss of 2A rights.

4 words
Amber Heard, Johnny Depp

If due process is followed and a qualifying conviction results, I have no issue with restricting the DV perpetrator's 2A rights. BUT until those things are true, I disagree with the idea in the strongest terms.

Not only is a TRO an ineffective piece of paper, it is obviously too easy to make false accusations that have no repercussions on the accuser, but have huge consequences for the accused.

If the accuser really believes they are in physical danger, what is there to stop them being armed and prepared to defend themselves? Most of us carry every day, even though we aren't facing a threat from a specific, identifiable individual. You can bet your bottom dollar that if I thought one specific individual were interested in doing me harm, I'd be armed and ready.

TROs and LEOs are really only effective for arresting, charging, and prosecuting bad actors after the fact. They can't really protect you unless you are in protective custody.

 

[biku324]

The realities of DV are far, far different than you suggest.

 

[Borderboss]

Count me in the camp that a TRO should not remove your 2A rights. If you haven't been charged with a crime and found guilty by a jury of your peers, you aren't guilty of a crime. We're not living the movie Minority Report here, where someone is guessing you're going to commit a crime (AI anyone?).

If the person committed domestic violence, that sounds like assault to me. Charge them with assault and try them. The spouse doesn't want to press charges? Then the person isn't guilty.

 

[crstrode]

Equal justice under law.
If that is the rule, then the weapons restriction must apply equally as well.
Baseball bats, frying pans, 2x4 lumber, lead pipes, ropes, knives, dogs, cars, fists, feet, teeth, etc, etc, etc, must be restricted also.

 

[biku324]

Here are the actual questions.

Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from
harassing, stalking, or threatening your child or an intimate partner or child of such partner?

Have you ever been convicted in any court of a misdemeanor crime of domestic violence, or are you or have you ever been a member of
the military and been convicted of a crime that included, as an element, the use of force against a person as identified in the instructions?

So TROs are only good for a few days...if, and only if, the court has decided after a hearing to extend the order are you inconvenienced for more than a few days. You can appeal the order as well.

 

[BC38]

Here are the actual questions.

Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from
harassing, stalking, or threatening your child or an intimate partner or child of such partner?

Have you ever been convicted in any court of a misdemeanor crime of domestic violence, or are you or have you ever been a member of
the military and been convicted of a crime that included, as an element, the use of force against a person as identified in the instructions?

So TROs are only good for a few days...if, and only if, the court has decided after a hearing to extend the order are you inconvenienced for more than a few days. You can appeal the order as well.

At your own expense of course.

And IF you can prove you are NOT a danger (hard to prove a negative) and your rights are restored, what happens to the person who frivolously or fraudulently filed the TRO against you in the first place?

ABSOLUTELY NOTHING!

 

[Borderboss]

Here are the actual questions.
So TROs are only good for a few days...if, and only if, the court has decided after a hearing to extend the order are you inconvenienced for more than a few days. You can appeal the order as well.

A right delayed is a right denied. Let the court system do their job expeditiously. Nobody should be "inconvenienced for a few days" where their God-given rights are involved.

 

[biku324]

So; who pays attorney fees if you are involuntarily committed to a mental health institution? That's also a civil process. Don't you have rights that are lost, at least for a while, then?

 

[BC38]

So; who pays attorney fees if you are involuntarily committed to a mental health institution? That's also a civil process. Don't you have rights that are lost, at least for a while, then?

Not the same thing. Can your wife (or anyone else) go to a judge and get you involuntarily committed based solely on a statement that she *thinks* you're crazy?
Of course not.
But she can get a TRO against you simply by claiming you said something threatening and she *thinks* you may do something to hurt her.
That's where the due process piece comes in.

 

[biku324]

Both situations require some evidence; both involve fundamental rights; both are civil law.

And an ex parte TRO is temporary until a hearing wherein there is due process. Exactly like involuntary commitment.

"a peace officer can detain you and take you to an inpatient mental health facility without a court order or a warrant.

The decision to detain you on an emergency basis must be based on either personal observation or another person's reliable observation of your recent behavior that makes them believe that:

you are mentally ill,

you pose a substantial and imminent risk of serious harm to yourself or others if you are not immediately detained, and

there is not sufficient time to obtain a warrant before taking you into custody. "

 

[Rodan]

You are conflating two entirely different processes.

 

[Muss Muggins]

Like most things. If you retain an attorney, you pay . . .

So; who pays attorney fees if you are involuntarily committed to a mental health institution? That's also a civil process. Don't you have rights that are lost, at least for a while, then?

 

[BC38]

Both situations require some evidence; both involve fundamental rights; both are civil law.

And an ex parte TRO is temporary until a hearing wherein there is due process. Exactly like involuntary commitment.

"a peace officer can detain you and take you to an inpatient mental health facility without a court order or a warrant.

The decision to detain you on an emergency basis must be based on either personal observation or another person's reliable observation of your recent behavior that makes them believe that:

you are mentally ill,

you pose a substantial and imminent risk of serious harm to yourself or others if you are not immediately detained, and

there is not sufficient time to obtain a warrant before taking you into custody. "

One requires involvement of a professional (LEO) and observed EVIDENCE. A cop that arrests you and hauls you off to the mental health ward because someone points at you and says "he's crazy" isn't going to be a cop for long, and just set his department up for a HUGE lawsuit. Therefore they DON'T do it without significant evidence.

The other requires only the say-so of a vindictive spouse, or girlfriend or anyone else who happens to be ticked off at you. And there is no repercussions on them when their accusations are unjustified.

Not the same at all. Any fool can see that. Or maybe not.

 

[Doug M.]

I firmly advocate that anyone who can rely on such an order does not need it, but the order is at least a judicial finding that the offender who ends up getting shot was a person doing bad stuff.

I see some pretty poor drafting of lots of things, and our legislature is just flat awful about it. Their provisions on 10.99.030(3) about seizing firearms at a scene are ... flawed. Likewise one of the provisions about information that prosecutors are mandated to provide to a judge at a first appearance (and we don't appear at them in District Court as far as I know); it requires information to which we do not have access as far as I know. I used to be able to find it when I was in LE, but prosecutors simply do not.

If they screw up stuff with which I am familiar, what errors are being made in other areas? They don't listen to people who actually know ...

ETA: the mental health proceedings will require a public defender. I've detained a few people and seen some others detained. The actual standard is rarely met. I did once see a kid who had to be sedated and taken to detention in an ambulance because there were no beds at the MH facilities. Most of the ones in this state over crowded and devoid of anything that looks like adequate resources. The Department of Social and Health services just got hit for $100 MILLION in contempt due to delays in getting those in the criminal system in need of evaluation and treatment into facilities. Takes well over a year. It's a disgrace.

 

[biku324]

One requires involvement of a professional (LEO) and observed EVIDENCE. A cop that arrests you and hauls you off to the mental health ward because someone points at you and says "he's crazy" isn't going to be a cop for long, and just set his department up for a HUGE lawsuit. Therefore they DON'T do it without significant evidence.

The other requires only the say-so of a vindictive spouse, or girlfriend or anyone else who happens to be ticked off at you. And there is no repercussions on them when their accusations are unjustified.

Not the same at all. Any fool can see that. Or maybe not.

Some fools know and use law, then marvel at those who only speculate.

40-13-3.2. Ex parte emergency orders of protection.

A. The district court may issue an ex parte written emergency order of protection when a law enforcement officer states to the court in person, by telephone or via facsimile and files a sworn written statement, setting forth the need for an emergency order of protection, and the court finds reasonable grounds to believe that the alleged victim or the alleged victim's child is in immediate danger of domestic abuse following an incident of domestic abuse. The written statement shall include the location and telephone number of the alleged perpetrator, if known.

B. A law enforcement officer who receives an emergency order of protection, whether in writing, by telephone or by facsimile transmission, from the court shall:

(1) if necessary, pursuant to the judge's oral approval, write and sign the order on an approved form;

(2) if possible, immediately serve a signed copy of the order on the restrained party and complete the appropriate affidavit of service;

(3) immediately provide the protected party with a signed copy of the order; and

(4) provide the original order to the court by the close of business on the next judicial day.

C. The court may grant the following relief in an emergency order of protection upon a probable cause finding that domestic abuse has occurred:

(1) enjoin the restrained party from threatening to commit or committing acts of domestic abuse against the protected party or any designated household members;

(2) enjoin the restrained party from any contact with the protected party, including harassing, telephoning, contacting or otherwise communicating with the protected party; and

(3) grant temporary custody of any minor child in common with the parties to the protected party, if necessary.

D. A district judge shall be available as determined by each judicial district to hear petitions for emergency orders of protection.

E. An emergency order of protection expires seventy-two hours after issuance or at the end of the next judicial day, whichever time is latest. The expiration date shall be clearly stated on the emergency order of protection.

F. A person may appeal the issuance of an emergency order of protection to the court that issued the order. An appeal may be heard as soon as the judicial day following the issuance of the order.

G. Upon a proper petition, a district court may issue a temporary order of protection that is based upon the same incident of domestic abuse that was alleged in an emergency order of protection.

H. Emergency orders of protection are enforceable in the same manner as other orders of protection issued pursuant to the provisions of the Family Violence Protection Act.