No 2A rights for restraining order?

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stchman

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In a thread that detailed about people having their 2A rights taken away from having a misdemeanor conviction for a domestic violence, what about people with restraining orders?

As far as I know, a restraining order is NOT a conviction. Should someone have their rights taken away for a restraining order?
 
stchman said:
...Should someone have their rights taken away for a restraining order?...
How people think things should or should not be is off-topic for the Legal Forum. As we say in the description of the Legal Forum on the Index Page:
In the Legal Forum we try to understand what the law is (including court decisions and proposed laws), how it works, and how it applies to RKBA issues. We focus on the way things are – not the way we think they should be.....

I will leave the thread open for the purposes of discussing when and if a restraining order can disqualify one from possessing a gun or ammunition.

And indeed there may well be circumstances under which a restraining order or productive order can disqualify one from possessing a gun or ammunition. For example, under federal law (18 USC 922(g)(8)) a 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;...​
may not lawfully possess a gun or ammunition. Note that for the purposes of disqualification from possessing a gun or ammunition the court order must satisfy certain criteria.

There migh also be state laws to similar effect. Information on those laws could be interesting and useful.

But if anyone wants to comment, he should provide citations to the laws and direct us to any applicable legal authority. Unsupported, conclusory statements aren't helpful.

And remember we are discussing what the law actually is and how it actually works -- not whether anyone thinks it's right or whether the law should be different.
 
In Alabama a restraining order is a civil matter and I cannot comment on the details of them since I don't deal with them, but from what I have seen of those that are issued they tend to be Domestic Violence related.

With that said, I can comment on the change in how municipal courts are dealing with Domestic Violence crimes. For misdemeanor DV cases (3rd degree), once a defendant is arrested it is up to a judge or magistrate to impose conditions of release and one of those conditions is the prohibition of a firearm or other weapon as long as it isn't necessary for employment as a peace officer or military personnel. That ability is granted in 15-13-190 with use of state form CR-48.

Alabama is starting to toughen up on DV related incidents and ensuring the safety of parties involved. This particular instance of prohibiting firearms is prior to conviction and is a temporary one until the case has been adjudicated. Additionally any violation of the conditions set by a judge or magistrate can be prosecuted as a violation of a protection order, even though it is not an order granted through civil procedure. This is granted by 13A-6-141.

And the granddaddy of them all in Alabama is 13A-11-72(a) which states:

"No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violent offense as listed in Section 12-25-32(15), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control."

That statute is what includes the protection orders.
 
Texas has had that law for quite some time.



Sec. 25.07. VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE, STALKING, OR TRAFFICKING CASE. (a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Chapter 7A, Code of Criminal Procedure, an order issued under Article 17.292, Code of Criminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte order has been served on the person, or Chapter 85, Family Code, or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally:
(1) commits family violence or an act in furtherance of an offense under Section 20A.02, 22.011, 22.021, or 42.072;
(2) communicates:
(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;
(B) a threat through any person to a protected individual or a member of the family or household; or
(C) in any manner with the protected individual or a member of the family or household except through the person's attorney or a person appointed by the court, if the violation is of an order described by this subsection and the order prohibits any communication with a protected individual or a member of the family or household;
(3) goes to or near any of the following places as specifically described in the order or condition of bond:
(A) the residence or place of employment or business of a protected individual or a member of the family or household; or
(B) any child care facility, residence, or school where a child protected by the order or condition of bond normally resides or attends;
(4) possesses a firearm;
(5) harms, threatens, or interferes with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order or condition of bond; or
(6) removes, attempts to remove, or otherwise tampers with the normal functioning of a global positioning monitoring system.
 
A restraining order is a "Civil" action.. Here in Ga. at least.
You still keep all your CCW and toys..

Violating the order WILL result in arrest and loss of 2A
for the duration of the order.

If it's "domestic" or "family" violence and it sticks, kiss 2A good-bye.. FOR GOOD.
EVEN if it's a misdemeanor.. DOES NOT HAVE TO BE A FELONY!
 
Here in FL a domestic violence restraining order prohibits procession of a firearm or ammunition for the duration it is in effect. If the person subject to the order has a CCW permit that is also suspended for the duration of the order.
 
gbran said:
How does all this differ from the existing Lauttenberg Amendment?
First, everything being discussed in this thread is, or should be, existing law.

The Lautenberg Amendment is only one of a number of federal and state laws disqualifying persons with domestic violence convictions and/or certain types of court orders from possessing guns.

Specifically, the Lautenberg Amendment added subparagraph (9) to 18 UCS 922(g). That subparagraph provides essentially that anyone:
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,...
may not lawfully possess a gun or ammunition. 18 USC 922(g)(9) is subject to 18 USC 921(a)(33) defining “misdemeanor crime of domestic violence.”

In addition to 18 USC 922(g)(9), 18 USC 922(g)(8), as quoted above in post 2, prohibits persons subject certain types of protective orders or restraining orders from possessing a gun or ammunition.

As a number of people have indicated in this thread there are other, state laws of similar or related effect.
 
My friend has a delay in his NICS check right now and is a bit worried. He tried to purchase a gun after many, many years of not even owning any firearms. I believe he had a court restraining order issued against him during a rough divorce trial a while back. He was issued a restraining order, but never had any conviction of any sort and is squeaky clean. His wife made all types of false accusations during the divorce trail and tried to remove custody of his kids , etc.

Assuming the restraining order is expired or not active, would there be any issues with him acquiring the firearm? He is in the state of Washington. The restraining order was issued I think over a decade ago during his divorce. He told me the restraining order was never renewed and is no longer active. Although, he says he may want to do more checking on the official information about that.
 
Evergreen said:
My friend has a delay in his NICS check right now and is a bit worried.....
Sorry, but we can't really help --

  1. We don't have all the facts. The details matter.

  2. You might not have all the facts, so getting everything second or third hand doesn't help.

  3. You should not be discussing your buddies personal legal problems with a bunch of strangers in public. Nor should your friend do so. Everyone in the world with Internet access doesn't need to know about your friend's private business.

  4. If he's really concerned, he needs his own lawyer. His own lawyer can get all the facts, and communications with his lawyer are confidential.
 
Sorry, but we can't really help --

  1. We don't have all the facts. The details matter.

  2. You might not have all the facts, so getting everything second or third hand doesn't help.

  3. You should not be discussing your buddies personal legal problems with a bunch of strangers in public. Nor should your friend do so. Everyone in the world with Internet access doesn't need to know about your friend's private business.

  4. If he's really concerned, he needs his own lawyer. His own lawyer can get all the facts, and communications with his lawyer are confidential.
Frank, can you suggest what type of lawyers (field of law) who have more in-depth knowledge on firearm laws? I am amazed by the number of ignorant lawyers I have talked to on various subjects. I've also heard some bad advice recited by other people from their lawyers, who ended up not being particularly well versed in firearm laws. For example, I met a guy who said his lawyer said it was ok for him to own a firearm and do gun transfers in Idaho, even though he had a drug felony on his record a long time ago from Texas. However, I have found it is bad advice, as people who were knowingly aware of his past felony were selling him guns. I'm assuming what they are doing is illegal on federal level. Yet, he received the blessing of his "lawyer" who was handling other types of cases for him. It would be interesting to know who is a reputable and reliable attorney on these matters.. I've found sometimes I meet lawyers who say they know about an issue only to get a totally conflicting opinion from another lawyer who may have more specialized knowledge in that field.
 
Last edited:
Frank, can you suggest what type of lawyers (field of law) who have more in-depth knowledge on firearm laws?...
In general there's no simple "litmus test." Some lawyers have chosen to concentrate on certain sorts of matters.

The issue your friend has involves both family law and firearms law issues. Probably the best bet would be to see if any of the Washington RKBA advocacy groups could suggest anyone. Perhaps there is a WA focused gun forum (such as is found in a number of States).
 
Evergreen said:
....I met a guy who said his lawyer said it was ok for him to own a firearm and do gun transfers in Idaho, even though he had a drug felony on his record a long time ago from Texas. However, I have found it is bad advice, as people who were knowingly aware of his past felony were selling him guns....
And maybe he was lying in order to convince people to sell him guns.

Evergreen said:
....I've found sometimes I meet lawyers who say they know about an issue only to get a totally conflicting opinion from another lawyer who may have more specialized knowledge in that field.
And lawyers hear this sort of stuff all the time. Sometimes lawyers don't always agree. And sometimes stories change.

Digression over.
 
State of Nebraska has two separate "Protection Orders"

1.) Domestic Violence Protection Orders (Ex Parte)

2.) Harassment Protection Order

The former is granted between involved parties in a family type situation... beit spouse, significant other, friend with benefits.... basically any family member or person with whom your relation has sexual relations or "dating" connotations to it. The later is granted between any parties. The later is a MAY Arrest for violations, the former is a SHALL arrest for violations.

As for firearms themselves...
NRS §28-1206 - Possession of a deadly weapon by a prohibited person; penalty said:
(1)(a) Any person who possesses a firearm, a knife, or brass or iron knuckles and who has previously been convicted of a felony, who is a fugitive from justice, or who is the subject of a current and validly issued domestic violence protection order and is knowingly violating such order, or (b) any person who possesses a firearm or brass or iron knuckles and who has been convicted within the past seven years of a misdemeanor crime of domestic violence, commits the offense of possession of a deadly weapon by a prohibited person.

(2) The felony conviction may have been had in any court in the United States, the several states, territories, or possessions, or the District of Columbia.

(3)(a) Possession of a deadly weapon which is not a firearm by a prohibited person is a Class III felony.

(b) Possession of a deadly weapon which is a firearm by a prohibited person is a Class ID felony for a first offense and a Class IB felony for a second or subsequent offense.

(4)(a)(i) For purposes of this section, misdemeanor crime of domestic violence means:

(A)(I) A crime that is classified as a misdemeanor under the laws of the United States or the District of Columbia or the laws of any state, territory, possession, or tribe;

(II) A crime that has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon; and

(III) A crime that is committed by another against his or her spouse, his or her former spouse, a person with whom he or she has a child in common whether or not they have been married or lived together at any time, or a person with whom he or she is or was involved in a dating relationship as defined in section 28-323; or

(B)(I) Assault in the third degree under section 28-310, stalking under subsection (1) of section 28-311.04, false imprisonment in the second degree under section 28-315, or first offense domestic assault in the third degree under subsection (1) of section 28-323 or any attempt or conspiracy to commit one of these offenses; and

(II) The crime is committed by another against his or her spouse, his or her former spouse, a person with whom he or she has a child in common whether or not they have been married or lived together at any time, or a person with whom he or she is or was involved in a dating relationship as defined in section 28-323.

(ii) A person shall not be considered to have been convicted of a misdemeanor crime of domestic violence unless:

(A) The person was represented by counsel in the case or knowingly and intelligently waived the right to counsel in the case; and

(B) In the case of a prosecution for a misdemeanor crime of domestic violence for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:

(I) The case was tried to a jury; or

(II) The person knowingly and intelligently waived the right to have the case tried to a jury.

(b) For purposes of this section, subject of a current and validly issued domestic violence protection order pertains to a current court order that was validly issued pursuant to section 28-311.09 or 42-924 or that meets or exceeds the criteria set forth in section 28-311.10 regarding protection orders issued by a court in any other state or a territory, possession, or tribe.


NRS §42-924 Protection order; when authorized; term; violation; penalty; construction of sections said:
(1) Any victim of domestic abuse may file a petition and affidavit for a protection order as provided in subsection (2) of this section. Upon the filing of such a petition and affidavit in support thereof, the court may issue a protection order without bond granting the following relief:

(a) Enjoining the respondent from imposing any restraint upon the petitioner or upon the liberty of the petitioner;

(b) Enjoining the respondent from threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of the petitioner;

(c) Enjoining the respondent from telephoning, contacting, or otherwise communicating with the petitioner;

(d) Removing and excluding the respondent from the residence of the petitioner, regardless of the ownership of the residence;

(e) Ordering the respondent to stay away from any place specified by the court;

(f) Awarding the petitioner temporary custody of any minor children not to exceed ninety days;

(g) Enjoining the respondent from possessing or purchasing a firearm as defined in section 28-1201; or

(h) Ordering such other relief deemed necessary to provide for the safety and welfare of the petitioner and any designated family or household member.

(2) Petitions for protection orders shall be filed with the clerk of the district court, and the proceeding may be heard by the county court or the district court as provided in section 25-2740.

(3) A petition filed pursuant to subsection (1) of this section may not be withdrawn except upon order of the court. An order issued pursuant to subsection (1) of this section shall specify that it is effective for a period of one year and, if the order grants temporary custody, the number of days of custody granted to the petitioner unless otherwise modified by the court.

(4) Any person who knowingly violates a protection order issued pursuant to subsection (1) of this section or section 42-931 after service or notice as described in subsection (2) of section 42-926 shall be guilty of a Class I misdemeanor, except that any person convicted of violating such order who has a prior conviction for violating a protection order shall be guilty of a Class IV felony.

(5) If there is any conflict between sections 42-924 to 42-926 and any other provision of law, sections 42-924 to 42-926 shall govern.

Having read and enforced several DVPO's, I've seen a few that specifically outline firearms as prohibited to purchase, but usually because they were part of the original domestic violence call we got that had the DVPO put in place to begin with. IE: Someone threatened someone else with a firearm...

Now the bog standard Harassment Protection Order that anyone can get on anyone else... I have yet to ever see such a provision of the order... most of them revolve around contacting or otherwise disturbing the peace of the petitioner.
 
Frank, can you suggest what type of lawyers (field of law) who have more in-depth knowledge on firearm laws?

The Washington Arms Collectors has a monthly magazine. In it, there are typically one or two ads for firearms specialty lawyers. Here are two:

  • Rainier Law Group rainierlaw.com (based in Bellevue)
  • Mark Knapp firearmslawyer.net (based in Federal Way)

The first one may be a better choice. There is also an interesting blog to read on their website.

Arrests or other potentially disqualfying things can trigger a background check delay. Happens to me every time and I don't know why. If his comes back as deny, then he should look at getting things fixed or restored.
 
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