OK: Courts Rely on Domestic Abuse Defendants’ Word for Surrendering Guns

Craig_AR · Jan 24, 2020

From Oklahoma Watch, we get the 12/10/2019 article Courts Rely on Domestic Abuse Defendants’ Word for Surrendering Guns

[n.b. The article and this post are not about ERPO/Red Flag Laws, but about procedures underlying well established victim protection orders that have followed appropriate due process.]

According to the article, when judge issues a victim protection order, there is a single box to check if the defendant must surrender firearms, and a blank to specify which law enforcement agency is to receive them. The most common agency named is the county sheriff where the defendant resides. Each of the 77 Oklahoma counties has its own procedure for contacting the defendant, but in just about very case, the assigned deputies simply take the word of the defendants about whether they have any guns or ammunition, and how much.

Obviously, this falls into the category of criminals lie and break laws; that is why they are criminals.

I wonder if the situation is similar in other states?
Also, how might the Oklahoma practice influence or inform confiscations under ERPO laws?
Further discussion on the latter might be better placed in the Activism Discussion and Planning forum.

alsaqr · Jan 24, 2020

In some cases the serving officer collects the firearms.

Oklahoma laws are very weak when it comes to enforcing restraining orders and victim protection orders. The federal prosecutor for western Oklahoma has teamed up with county and local law enforcement. The prosecutor sometimes brings federal charges against persons who violate protection orders by possessing firearms.

This guy got ten years in federal prison:

https://www.duncanbanner.com/news/d...cle_885ec9ee-2207-11ea-97e8-979879127b73.html

JohnKSa · Jan 24, 2020

I'd be interested to see a lawyer weigh in, but from what i can tell, a protective order does not automatically include a search warrant.

alsaqr · Jan 24, 2020

JohnKSa said:
a protective order does not automatically include a search warrant.

That is correct. Turnover of firearms in OK depends completely on the honesty of the violator.

Jenrick · Jan 25, 2020

alsaqr said:
This guy got ten years in federal prison:

https://www.duncanbanner.com/news/d...cle_885ec9ee-2207-11ea-97e8-979879127b73.html

Well after reading the article in question, he was convicted of lying on a 4473 and purchasing 2 guns while a prohibited person, as well as being in possession while under a protective order. The fact that he also threatened his second wife with the handguns he purchased probably also helped get him 120 months of federal time. This was not a case of someone merely failing to divest themselves of their firearms when served with a protective order.

lemaymiami · Jan 25, 2020

At the other end of the spectrum we had a close family member going through a serious child custody situation - and we (the family members) made sure that he complied with a no firearms order to ensure that there were no opportunities for the other side of the dispute to use that against him... I believe that many strong families do similar things when a member has run afoul of the law and does not need any additional complications in what usually turns out to be a long running situation... At least that's my take on it.

None of our actions involved law enforcement - the weapons went to other family members for safe keeping until the situation was resolved... Similarly as a police supervisor, then commander, years ago... I always advised my officers involved in domestic difficulties (divorces, separations, child custody problems) to get their personal weapons out of their houses until problems were resolved. Weapons at hand in emotional situations don't ever make anything better in my experience.

JohnKSa · Jan 25, 2020

Turnover of firearms in OK depends completely on the honesty of the violator.

I think that may actually be true more often than not, even outside of OK. I'd love to see some lawyers weigh in with more authoritative information.

dbz77 · Jan 26, 2020

In my opinion, the Lautenberg Amendment did not go far enough.

Persons convicted of misdemeanor domestic violence should have

had any license to practice law or medicine revoked.
been required to register as a domestic violence offender
been required to wear a distinctive badge when out in public
been prohibited from any form of intimate contact or relationship

MechAg94 · Jan 28, 2020

dbz77 said:
In my opinion, the Lautenberg Amendment did not go far enough.

Persons convicted of misdemeanor domestic violence should have

had any license to practice law or medicine revoked.

been required to register as a domestic violence offender

been required to wear a distinctive badge when out in public

been prohibited from any form of intimate contact or relationship

But what actions qualify for "misdemeanor" domestic violence? I thought actual physical violence generally got you a felony. I don't think you would get much argument regarding felonies.

alsaqr · Jan 28, 2020

MechAg94 said:
But what actions qualify for "misdemeanor" domestic violence? I thought actual physical violence generally got you a felony. I don't think you would get much argument regarding felonies.

In Oklahoma guys who violate orders of protection get freebies:

"Any person who has been served with an emergency temporary, ex parte or final protective order or foreign protective order who violates the protective order and causes physical injury or physical impairment to the plaintiff or to any other person named in said protective order shall, upon conviction, be guilty of a misdemeanor and shall be punished by a term of imprisonment in the county jail for not less than twenty (20) days nor more than one (1) year. In addition to the term of imprisonment, the person may be punished by a fine not to exceed Five Thousand Dollars ($5,000.00)."

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=70260

Many years ago a college classmate of mine was attacked and brutalized by her ex husband who was subject to an Oklahoma order of protection. He got no jail time.

On his second attempt said wife beater became deceased after being shot three times with a model 19 Smith and Wesson loaned to the lady by another classmate. Sheriff soon returned the gun.

dbz77 · Jan 29, 2020

MechAg94 said:
But what actions qualify for "misdemeanor" domestic violence? I thought actual physical violence generally got you a felony. I don't think you would get much argument regarding felonies.

The issue was that many felony cases were plead down to misdemeanors, hence the Lautenberg Amendment.

Spats McGee · Feb 1, 2020

JohnKSa said:
I'd be interested to see a lawyer weigh in, but from what i can tell, a protective order does not automatically include a search warrant.

They do not. At least not in AR.

JohnKSa said:
Turnover of firearms in OK depends completely on the honesty of the violator.

Click to expand...

I think that may actually be true more often than not, even outside of OK. I'd love to see some lawyers weigh in with more authoritative information.

Completely on the honor system, at least initially, in AR. Actually, there's really no 'turnover' of firearms in AR. The subject of a restraining or protective order is prohibited from possessing firearms, but there's no direction given as to what to do with them.

dbz77 said:
In my opinion, the Lautenberg Amendment did not go far enough.

Persons convicted of misdemeanor domestic violence should have

had any license to practice law or medicine revoked.

been required to register as a domestic violence offender

been required to wear a distinctive badge when out in public

been prohibited from any form of intimate contact or relationship

What about contractors' licenses? Dentistry? Tattoo artist? Why only medicine and law?

And I'm not sure that #3 and #4 are either good ideas or constitutionally permissible, but that's a discussion for another thread.

MechAg94 said:
But what actions qualify for "misdemeanor" domestic violence? I thought actual physical violence generally got you a felony. I don't think you would get much argument regarding felonies.

If you could look over my shoulder, you'd be shocked at the amount of violence you can do (at least in AR) and still be in 'misdemeanor territory.' The bar is pretty low for getting there to begin with, but you gotta beat a person pretty bad to get into felony. I think our rule is "protracted disability or disfigurement" before it's a felony, generally. Unless the victim is <12 yo, >60, pregnant, or somethinglike that.

waterhouse · Feb 1, 2020

It seems without a registry of firearms, there is no real option other than relying on the word of the property owner.

MechAg94 said:
But what actions qualify for "misdemeanor" domestic violence? I thought actual physical violence generally got you a felony. I don't think you would get much argument regarding felonies.

Varies by state, here a misdemeanor is "Bodily injury or complaint of pain." That sets the bar very low and extends way up until a weapon is used or serious bodily injury occurs, at which point you get a felony. Technically, you could pinch your partner's arm and they could say ouch, all the way up to several punches to the face which don't end up causing permanent damage, and you would be in misdemeanor territory here.

MarkDido · Feb 4, 2020

dbz77 said:
In my opinion, the Lautenberg Amendment did not go far enough.

Persons convicted of misdemeanor domestic violence should have

had any license to practice law or medicine revoked.

been required to register as a domestic violence offender

been required to wear a distinctive badge when out in public

been prohibited from any form of intimate contact or relationship

Perhaps a yellow star?

JohnKSa · Feb 4, 2020

To be clear, I'm not advocating for having offenders wear a badge in public, but there's a huge difference between publicly labeling someone for something that they ARE, vs. publicly labeling someone for something that they DID.

Imprisoning someone for having brown hair or for having a certain skin color or for being a particular sex is obviously very wrong.
Imprisoning someone for having committed a serious crime is obviously not wrong at all.
Refusing to hire a potential nanny for being hispanic or for being male is obviously wrong.
Refusing to hire a potential nanny because they are a convicted sex offender is obviously not wrong at all.

In the same way, making a person publicly identify themselves because they have committed a sufficiently serious crime is absolutely not the same as making a person publicly identify themselves because they are a certain race.

So, no. A law forcing a criminal to publicly wear some sort of badge would NOT be equivalent to a law forcing Jews wear yellow stars as the Nazis did. It's not the same thing at all any more than using a gas chamber to kill a convicted multiple murderer is equivalent to using a gas chamber to kill a person merely because they are born with a particular skin color.

Again, I'm not arguing that domestic abusers should have to wear a badge, just pointing out that while it is superficially similar to what the Nazis did to the Jews, at the root of the matter it is fundamentally completely different.

lemaymiami · Feb 4, 2020

Not hard for some of us to get a bit carried away about one sort of prohibited behavior or other (particularly when it's something that's the current "hot topic" or other..). Yes, the general opinions of our society do change over time - and a case in point is the matter of DUI's... When I first hit the street (as a very green naive young man...) I was taught that no matter what the law said.... DUI was a relatively minor offense (as long as no collision was involved or any kind of injury...) and that the wise thing to do was to offer the offender an opportunity to "park it and take a cab"... Further, we were taught to only make that offer once - and that any sign of obstruction or argument meant a trip downtown... This was 1974 - a simpler time, but pretty much in line with what the public agreed with.... Years later young officers came from the police academy believing that it was a sin not to arrest anyone that might even possibly be an impaired driver - and that too was in line with what the general public agreed with (this was early nineties) - since I left police work in 1995 I have no idea what the current standard is - but can guess that,public sentiment about DUI being what it is, that not much has changed from the much, much stricter view that came to be common later in my career...

What I've described for DUI goes double for domestic violence - there's been a sea change there as well. The laws that I'd support are progressive in nature (provided the injury is minor - things change if serious injury is involved..). A fist time offense - a misdemeanor (less than a year in jail, max penalty), a second conviction - a felony, less than five years max, etc. I've always believed that criminal statutes should reflect what an offender has actually done... not any other factor (unless you're taking into account special status for one class of victim or other - the elderly, the very young, pregnant females, etc.).

The problem with domestic violence comes when folks start taking away 2nd amendment rights as a result of domestic violence... That may be an entirely fair result -but I'd only want to see that strictly limited (no lifetime ban unless a felony conviction is present - and not just for some white collar crime with no injured victim... ). Certainly it's absolutely reasonable to prohibit purchase or possession of a firearm for anyone charged with a felony - and if there's domestic violence with injury I would include that as well until the court case runs... These days though we can count on anti -gun types to take advantage of any proposed firearms legislation...

My days with the criminal justice system (boy what a misnomer...) were all here in Florida - other states may handle things differently...

dbz77 · Feb 5, 2020

MarkDido said:
Perhaps a yellow star?

That would be an easily identifiiable badge, but it may have unfortunate implications.

jmorris · Feb 5, 2020

Turnover of firearms in OK depends completely on the honesty of the violator.

Locks only keep honest people out. Same with firearm laws.

FlSwampRat · Feb 7, 2020

jmorris said:
Locks only keep honest people out. Same with firearm laws.

Would that legislators realized that.

Craig_AR · Feb 7, 2020

dbz77 said:
but it may have unfortunate implications.

"Those that fail to remember history..."

Texasgrillchef · Feb 10, 2020

If you check Oklahoma’s pending legislation you will see a couple of bills for stricter guidelines in implementing “red flag” type laws and actions, with better due process and penalties for those who make false claims.

while that doesn’t solve the current issue, it is hope for the future

OK: Courts Rely on Domestic Abuse Defendants’ Word for Surrendering Guns

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