Domestic Violence Orders - what qualifies?


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KyJim
August 20, 2009, 05:35 PM
I often see discussion about some sort of order entered by a court which may or may not bar a person from owning, possessing, or buying a firearm by operation of federal law. There is a lot of misinformation as to what type of court order the statute envisions. I thought it might be helpful to set out the statute in question. Title 18 U.S.C. 922(g) provides in relevant part:

(g) It shall be unlawful for any person-- . . .

(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The first thing to notice is that the court order qualifies only if there has been notice and an opportunity to participate in the proceedings. Thus, ex parte orders are excluded. Of course, a person must still follow the court order.

Next, the court order must prohibit specified activity. This includes harrasment, stalking, threatening or other conduct would place a partner or child in reasonable fear of bodily injury.

The order must also include one of two alternate provisions. It must either specifically find the person is a credible threat to the partner or child OR the order prohibits the use of force or threatened force.

Anyone questioning whether a particular order disqualifies them from owning, possessing, or buying a firearm should have a lawyer review it under this statute.

There are other provisions which also disqualify a person from possessing a firearm under 18 U.S.C. 922(g). Also, note that the statute also prohibits possession of ammunition.

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KenW.
August 20, 2009, 06:04 PM
This is the Laughtenburg amendment. Items A, B, and C are interpetted as "OR" by my County attorneys. An ex-parte is a temporary order that fits the bill. It is only in effect from the moment of service to the hearing. Which in my state is required to be held within fourteen days.

I never like seizing guns from responents, nor did my Sheriff who eventually told me NO MORE, regardless of the order. The Sheriff is elected, the judges are appointed, and I was to follow the Sheriff's wishes. Worked well enough for me.

If they wanted to kill the petitioner there are plenty of ways to do it without a gun. And a couple of respondents in my County proved it.

divemedic
August 20, 2009, 06:24 PM
I post this story from time to time, to show you how the DV injunction system works (this actually happened to me):

This is a story of events that occurred to me about 5 years ago, events which resulted in my CWP being revoked. It took me six months, multiple hearings, an administrative appeal, and several thousand dollars in attorney fees to finally clear my name. I have posted this on a few other sites in the past, but it has been some time since I last mentioned it. Let this serve as a warning to others that this can happen to you. Sorry if this is a long story.

It began when my live in girlfriend announced that she wanted to see other people, and moved out. While we were living together, her car had broken down, and I had been letting her drive my second car while she was awaiting repairs. She had also been using a second cell phone on my Nextel account. (Trust me, I am not rambling- this is all important later)

When she moved out, I turned off the cell phone and I asked for my car back. She refused. I called the cops, they told me that since I had given her the keys, it was a civil matter. I didn't know where she moved to, so my car was gone. A month later, I saw the car parked at the mall, but there was a "club" on the steering wheel. I had it towed to my house.

The next day, there was a sheriff's deputy at my door with a domestic violence injunction that had been awarded at an ex parte hearing, ordering me to appear at yet another hearing a week later. The order said that I had 48 hours to turn my guns in to the Sheriff's office. The deputy, who was a friend of mine, warned me that if I turned in my guns I would probably not ever see them again. He said the Sheriff would tie them up in red tape, testing them ballistically to see if they matched other crimes, and other excuses, so that I would not get them back. An hour later, I sold them all to my brother in law.

At the hearing, she produced a statement that I had hit her while we were together. No proof, no witnesses, no police reports, no medical records, no marks on her, no corroborating evidence of any kind, just her say-so. It turns out that there is a "domestic violence victims advocates office" at the court house that coaches these women in what to say, and makes sure they get sympathetic judges by juggling the judicial calendar.

While in court, she began crying, and told the judge that I had taken away her phone, and that I had taken back my car, and left her with no way to get to work. She complained that it was unfair that I had two cars, and she had none.She also told the judge that she was afraid of me because I owned a lot of guns. This infuriated the judge, and he ordered me to turn my guns in to the police, revoked my CCW, and ordered me to provide her with a car and a phone. Then he came out of his seat and he said, "You have TWO cars? Not any more! Give her one! In fact, give her the car that you came here in today!" (There was no way in hell I was giving her my brand new truck- I stalled and told the judge that a friend had driven me to court. He told me to deliver a car to the Sheriff by 5 pm that day, or go to jail. He also said that it better be full of gas, and that I would still be required to maintain plates and insurance on the car for as long as the GF had it)

He also said that since my 2 jobs as a firefighter/paramedic could potentially bring me near her, that I was prohibited from going to work. One job was willing to work with me and temporarily reassigned me to administrative duties, the other one fired me the next day.

My attorney pointed out that we were never married, and the car was mine. The judge told him to sit down, be quiet, and be glad his client (me) wasn't going to jail. Luckily, I had been prewarned about the anti-gun attitude of the judge, and I had sold all of my guns to my brother in law earlier. Since this was not a final judgment, we could not appeal. The judge also said that my taking away "her" car and phone was a kind of violence, in that I was using my financial influence and the threat of firearms to control her.

For the next five months, we had numerous hearings, and I got to go back to work in my regular job. My second job was still gone. I had to endure her showing up everywhere I went and she would use the restraining order to force me to leave, sometimes while I was in the middle of dining in a restaurant. I started making sure I had witnesses wherever I was, so that she couldn't accuse me of anything. I hung out with friends and family, so that way it wouldn't be my word against hers.

It would go like this: I would be at a sports bar owned by my partner, and she would show up, and call the police. Since I was there first, they couldn't arrest me, but they would make me leave. She would go grocery shopping at the store across the street from my house, and tell the cops I was watching her from my window, and they would come over and hassle me. She called the cops and told them her doctor's office was in my mom's neighborhood, and they would even throw me out of my mom's house, and make me leave until she was finished at the doctor.

One night, she called me and told me that the whole thing would go away if I paid her $10,000 in cash, and let her keep the car. I refused. My attorney was finally able to trip the judge on a legal technicality, and got him recused from the case. With a new judge, we got the whole thing thrown out, and I got my car back. By the time I got it, it had been damaged by some sort of tool.

Another month, and some administrative appeals later, I managed to get my CWP back. I bought the guns from my brother in law, and my life returned to normal.

All of this was done on a statement filled out by her, with no witnesses, and no proof whatsoever. I discovered that when you get in front of these judges, you are at their mercy. They can ruin your life. One of the deputies told me that most of the domestic violence injunctions he serves are not really violence, but women trying to gain the upper hand in divorce proceedings, or out to get revenge.

wishin
December 18, 2009, 01:18 PM
Divemedic, I found myself getting angrier and angrier as I read your post. It's just not right that a judge has that kind of arbitrary power over a defendant! We see such abuse of power depicted on TV all the time, not realizing that it happens in real life. Glad to hear you were victorious. I'm sure you realize how lucky you were to have that particular attorney. I wonder what percentage of lawyers who handle domestic cases, or any other type of litigation, would have challanged the judge as he did to the point of recusal.

metallic
December 28, 2009, 10:41 PM
What state was this in so I can avoid it like the plague?

Snakum
December 28, 2009, 10:57 PM
DiveMedic ... you're a better man than me. That's all I'll say about that.

Maverick223
December 28, 2009, 11:01 PM
Divemedic, I found myself getting angrier and angrier as I read your post. It's just not right that a judge has that kind of arbitrary power over a defendant!I know this is kind of old (but I didn't BUMP it ;))...but I don't hang around here (legal) much, but it caught my eye...and I am *somewhat* glad it did.

Dive, I am saddened, and honestly enraged to hear about your situation, the judge should be imprisoned for abusing his blatant disregard for the law and in particular the Constitution of the United States. I hope you filed suit against your ex for any damages (including damage to your vehicle, lost wages, and pain & suffering), and garnish her wages from now until eternity.

Divemedic, I found myself getting angrier and angrier as I read your post. It's just not right that a judge has that kind of arbitrary power over a defendant!Damn skippy!

danbrew
December 28, 2009, 11:19 PM
'Ya think the judge ever worries about somebody coming for payback? There are a lot of guys that would make it their mission in life to execute the judge. Could you really blame one that had been treated in such a poor fashion for looking for vengeance? I wouldn't.

mljdeckard
December 28, 2009, 11:24 PM
It does suck, but remember this well. Short of a flagrant felony, a judge has absolute immunity on the bench. Even if he's overturned, he doesn't owe you so much as an apology.

At the risk of nudging the topic, this is why I tear my hair when guys in here say that they can shoot within the law, and their 'stand your ground' and 'castle doctrines' will protect them, and they don't need lawyers. All it takes is a D.A. trying to make a name for himself and a judge who has been sleeping on the couch for a while, and your kids' college money is going to your lawyer's kids.

If you want justice; go to a whorehouse. If you want to get screwed, go to a courthouse.

Maverick223
December 28, 2009, 11:32 PM
It does suck, but remember this well. Short of a flagrant felony, a judge has absolute immunity on the bench. Even if he's overturned, he doesn't owe you so much as an apology.I didn't say it would (or could) happen...just [part of] what I wish had...ask me what I really think. :evil:

divemedic
December 29, 2009, 02:57 PM
I hope you filed suit against your ex for any damages (including damage to your vehicle, lost wages, and pain & suffering), and garnish her wages from now until eternity.

Abused women are exempt from liability for reporting abuse. Even falsely. I can no more PROVE that she lied than she can PROVE she was telling the truth. It is my word against hers.

Just like she had to prove that I abused her in order to get the DVI, I would have to prove that she lied. I moved on. Life is too short to relive such episodes.

lpd843
December 31, 2009, 08:54 AM
KY Jim

the statue you quoted is for domestic violence order, emergency protection order is where your guns are first taken and the respondant does not have to be a participant in a hearing to have one issued upon them, the hearing comes next and that is when a judge finds sufficient evidence of domestic violence to issue the domestic violence order. In KY epo's are good for two weeks, dvo can be indefinatly with specific instruction e.g. no further acts of violence, no contact etc.

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