Bad, but not unexpected, news from New Jersey

[gmark340]

I don't have the actual cite to yesterday's ruling. The following was taken from a NJ Law Journal daily news alert. The underlining is mine. This decision continues the trend in NJ to pay lip service to, but then disregard, due process, all consistent with Lautenberg.

PREVENTION OF DOMESTIC VIOLENCE LAW HELD CONSTITUTIONAL
New Jersey's Prevention of Domestic Violence Act, which allows courts to issue restraints without a jury and based on a minimal burden of proof, is constitutional, the state Supreme Court says. Thursday's unanimous, per curiam ruling in Crespo v. Crespo, A-28-09, affirms the Appellate Division's overturning of a trial court opinion that struck down the 19-year old law. The Court agreed there is no constitutional right to a jury in a domestic violence hearing; the preponderance-of-evidence standard does not flout due process; and the specification of court procedures does not violate separation of powers. The Court also agreed with the rejection of a Second Amendment argument: that the act's provision for seizure of guns is inconsistent with the individual right to bear arms recognized by the U.S. Supreme Court in 2008. There is no reason to think the ruling prohibits taking guns way from people who commit domestic violence, the state Court said.

 

[gmark340]

"There is no reason to think the ruling prohibits taking guns way from people who commit domestic violence..." but this begs the question as to whether the defendant did, in fact, commit domestic violence in the first place or whether this is a "he said, she said" situation. I don't know the case so I don't know how egregious the defendant's behavior was or what level of proof was offered. Bottom line: while this isn't new news, it is a reminder that domestic situations can be and are treated in a different manner to other disputes, with potentially disastrous consequences for a gun owner.

 

[bushmaster1313]

opinion is here:

http://www.judiciary.state.nj.us/opinions/supreme/A2809CrespovCrespo.pdf

Key kanguage is here:

To the extent defendant raised whether the Second
Amendment’s right to bear arms, U.S. Const. amend. II, applies
to the states, id. at 41-43, we note that the issue of
“[w]hether the Second Amendment right to keep and bear arms is
incorporated as against the States by the Fourteenth Amendment’s
Privileges or Immunities or Due Process Clauses” presently is
pending before the Supreme Court of the United States. McDonald
v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted,
___ U.S. ___, 130 S.Ct. 48, 174 L. Ed. 2d 632 (2009). We need
not reach that point because the right to possess firearms
clearly may be subject to reasonable limitations. See District
of Columbia v. Heller, ___ U.S. ___, ___, 128 S. Ct. 2783, 2816-
17, 171 L. Ed. 2d 637, 678 (2008) (holding that “[l]ike most
rights, the right secured by the Second Amendment is not
unlimited” and endorsing “longstanding prohibitions on the
possession of firearms”).

 

[Izzy77]

The Court agreed there is no constitutional right to a jury in a domestic violence hearing

I certainly hope this get to SCOTUS.

Any abused ( or potentially abused person) deserves court protection, and the accused deserves NO LESS.

 

[bushmaster1313]

What is the issue?
I believe this was a restraining order case.

Injunctions are typically decided by a judge not a jury.
So long as there is due process and the basis for the injunction is reasonable what is the issue?

I am willing to be educated on this because I know very little on this subject.

 

[Dead]

bushmaster1313 - If I merely accused you, and you live with me, of hitting me, no proof, maybe no statement from you at all.. I could get a restraining order against you. You lose your guns....


Don't see an issue with that? I guess you aren't from NJ?

 

[everallm]

Before folks get off on an NJ bash, read the ruling.

The judges state plainly

Heller said there maybe restrictions around 2A (just as there is with 1A)
These restrictions are not defined
A case that may define these bounds is before the SC

Until then, they are not going out on a limb and define the bounds outside of CURRENT case law etc.

Now, if McDonald DOES lead to incorporation and the bounds are set such that Lautenberg can be constitutionally challenged AND the NJ judiciary still cavils THEN beat them up.

If this was an issue beig overturned and enforcing an issue dear to the Left and not 2A then a number of folks on this very board would be moaning about "judicial activism"

 

[cskny]

bushmaster1313 - If I merely accused you, and you live with me, of hitting me, no proof, maybe no statement from you at all.. I could get a restraining order against you. You lose your guns....


Don't see an issue with that? I guess you aren't from NJ?


No, I don't think you get a restraining order because you merely accuse him.

You get to go to court and make your case for a restraining order. The other party cannot demand a jury trial in that case (or invalidate an order because they were not granted a jury) and a judge can apply a lower standard of proof in granting the restraining order to you when they evaluate the evidence and make their decision.

If they grant it, yes, your guns are in jeopardy. Easiest way to avoid it all, don't get into domestic violence disputes.

 

[pbearperry]

Massachusetts has had this for years.Absolutely no evidence of assault needed to get served with a restraining order and removal of your guns.

 

[cskny]

Massachusetts has had this for years.Absolutely no evidence of assault needed to get served with a restraining orde

That's because a restraining order is:

A restraining order is an order made by a court to protect a person from physical pain or injury or the threat of pain or injury

You don't need to have already assaulted someone.

 

[cskny]

It would help the restraining order system if people who abused the system (ie - the false accusers) were prosecuted for perjury. Unfortunately though, that doesn't seem to happen.

If it did, it would sure stop a lot of people and make them think before they filed. That way they could use appropriately leveled rules on the cases that really need protection.

 

[cskny]

I think the restraining order discussion itself is a little off-point for what the actual issue is though, correct? Otherwise this would be the "domestic violence" forum, not the legal forum on THR.

I think the reason this is posted at THR is because once a restraining order is issued, it's the basis for removing guns from the person who it was issued against. There is a battle going on with a 2A argument saying that you shouldn't be able to use that as the basis to deny someone their 2A rights because essentially, you have circumvented the 2A by denying it's protection with such a lower standard of proof.

Am I way off, or close?

 

[Carl N. Brown]

In divorce cases it is not unusual for a restraining order to be issued as a matter of form, almost like legal boilerplate, without necessarily proof that the accused has actually committed domestic violence or even threatened it.

There are also plenty of cases where a woman does not get a restraining order, possibly out of fear, and is strangled or stabbed (most perps of domestic violence like to get up-front and personal) so the focus on guns is more gun politics than concern about domestic violence. I read a summary of a report that the typical perpetrator of domestic violence outweighed the victim by 45 pounds and averaged 6 inches taller. If restraining orders were issued to both partners, that would leave the weaker at the mercy of the stronger. I have had two family members who have had to pull guns on abusive estranged husbands who were stalking them, after seperations over severe domestic violence. In both cases, the brutal cowards showed up with drinking buddies to back them up. I am also aware of cases where the woman did the man wrong and would say anything to paint the man as the villian.

I like (sarcasticly) how the court goes from issue of a restraint on civil law rules (no jury, minimal burden of proof), to "taking guns way from people who commit domestic violence". Who needs a jury if accusation equals guilt in the eyes of the court.

The Congressional debates on the 1870 Civil Rights Act equated the right to vote with the right to keep and bear arms as rights that could be denied only on conviction of a felony (and in those days there was a short list of truly felony offenses). Today, felonies include what should be misdemeanors, like temporarily placing fish in the wrong color-coded basket (even if they don't go to market in the "wrong" basket), and thanks to New Jersey and Lautenberg, mere accusation of a misdemeanor is sufficient to deny RKBA. The trivialization of felonies and the denial of rights based on accusations may give the statists the illusion of control as long as they feel it is applied to other people, until it bites them.

 

[cskny]

Poster's keep saying "accusation" as if you no longer need to make a case to a judge. The system does know there are abusers, they do TRY to weed some out.

Last time I checked, you still need to substantiate a case to a judge for a restraining order, even in NJ. And frankly, I believe that many states operate the identical way specifically in terms of restraining orders. As Carl N. Brown said or implied, that lower burden has probably saved some people's lives and allowed others to make false accusations.

The connected debate to the 2A I'll leave to smarter folks, but it sure does seem like somehow the constitution needs to win and force a little more burden...

 

[Carl N. Brown]

The real problem with domestic violence is this: if it would be felony assault and battery against a stranger on the street, it should be felony assault and battery against a spouse or partner in the home, and treated as such.

(Yeah, a lot of "domestic violence" (oxymoron if there was one) is the result of mutual combat, and instigator and reactor is often fuzzy "he said/she said" which is probably why it tends to be treated different from stranger-on-stranger violence. I can appreciate the position of a cop responding to a domestic violence call: you pull the 245 lb 6 ft wife beater off the 90 pound 5 ft 2 in little lady, and she jumps on your back wailing away with a saucepan yelling leave him alone. Which is why people with good sense stay out of domestic violence situations. Wait a minute, what and I doing here?)