Due Process for Accused Domestic Abusers With Guns? Nope.

(courtesy itstactical.com)

“More than a dozen states have strengthened laws over the past two years to keep firearms out of the hands of domestic abusers, a rare area of consensus in the nation’s highly polarized debate over guns.” That’s the AP’s take on the spate of gun laws that mandate firearms confiscation for people (mostly but not exclusively men) subject to an ex parte domestic abuse-related retraining order. To be clear . . .

ex parte is a Latin legal term meaning “a decision decided by a judge without requiring all of the parties to the controversy to be present.” In other words, due process, the right to confront one’s accusers, guaranteed by Fifth and Fourteenth Amendments to the U.S. Constitution, doesn’t apply.

As the AP article points out, the NRA hasn’t exactly taken a hard line against these new laws.

The National Rifle Association has taken a cautious approach toward such bills, opposing the farthest-reaching measures but staying neutral or negotiating compromises on others. For example, the NRA has fought provisions that would require people to surrender their guns before they have a chance to contest allegations made in a request for an emergency protective order.

“There is no evidence that simply taking away people’s guns without a fair hearing makes the victims any safer,” NRA spokeswoman Catherine Mortensen said . . .

In Wisconsin, Gov. Scott Walker signed a law in 2014 requiring people subject to domestic abuse restraining orders to turn over their guns within 48 hours. The NRA stayed neutral after negotiating language that allows individuals to seek the return of their weapons once restraining orders are lifted.

To quote L. Neil Smith, the right to keep and bear arms is a natural, civil and Constitutionally protected right. As such, it is not subject to the democratic process nor arguments of social utility. We all know that confiscating a domestic abuser’s guns won’t stop them from acts of violence. But arguing that gun confiscation without due process doesn’t work doesn’t cut it. Gun confiscation without due process is unconstitutional. Period.

The NRA is the only gun rights group shying away from calling an unconstitutional spade an unconstitutional spade, presumably to avoid being seen as the “bad guy” protecting domestic abusers in a War on Women kinda way.

Kim Stolfer, president of the Pennsylvania group Firearms Owners Against Crime, said his organization isn’t on board with the idea yet. He said such legislation could be exploited by vindictive ex-spouses who level false allegations of abuse.

“We need some balance, and it’s rapidly going the wrong way,” he said.

It’s hard to maintain “balance” when you’re sliding down a slippery slope. To wit . . .

Federal law has long prohibited felons, those convicted of misdemeanor domestic abuse crimes and individuals subject to permanent protective orders from buying or owning guns. Critics say the federal law is too weak because it does not apply to dating relationships, does not ban guns during temporary protective orders and does not establish procedures for abusers to surrender firearms.

States have been passing their own laws to match or exceed the federal prohibitions, delighting gun control advocates.

“We’ve passed them in blue states, red states and purple states,” said John Feinblatt, president of Everytown for Gun Safety. “We believe they are absolutely lifesaving.”

Some of the strictest state laws create processes for seizing firearms from abusers and extend gun bans to stalkers, abusive dating partners and those who are subject to temporary protective orders.

Studies by public health researchers have generally concluded that such laws, when properly implemented, can reduce deaths.

Citation? Generally, specifically, none. Meanwhile, led by the AP, the assault media has taken this “abusers should have their guns taken away” meme and run with it. Here’s a screen cap of today’s Google search for “gun” [links not active]:

Screen Shot 2016-02-07 at 7.36.08 AM

No one argues against gun confiscation for convicted domestic abusers, stalkers or dating partners — although locking them up is a far more effective solution. The point here: “innocent until proven guilty” is a founding principle of our Constitutional democracy.

No gun rights organization worth its salt supports any law violating that principle, no matter how “useful” it might seem. The NRA and its allies should be lobbying for laws that make it easier for actual and potential victims of domestic abuse to defend themselves by force of arms. And opposing any further degradation of our civil rights.

comments

  1. avatar jwm says:

    Ignoring civil rights and due process gave us little moments in history like the interning of the Japanese/Americans in ww2.

    1. avatar The Dude Abides says:

      By the left’s shining example of a good President, FDR no less.

    2. avatar Henry Bowman says:

      More proof that leftist do not care about rights, freedoms, or the Constitution no right to keep and bare arms, no right to due process, but gays some how have the right to marry, illegal have the right to everything “free of cost”.

      What more proof due you that the left is mentally ill or treasonistic.

      1. avatar jwm says:

        Gays do have the right to marry. Just as they, and we straights, have the rtkba. Illegals, imho, have the right to be deported.

      2. avatar CB says:

        Scott Walker is a Republican and very not-leftist.

    3. avatar buckshot says:

      ……SHALL NOT!!! BE INFRINGED !!!!!

  2. And now in California we have GVRO’s which are even less compliant with due process. Yay! Where’s 2Asux at? I expected them in here evangelizing the complete evisceration of due process for all matters involving guns.

    1. avatar Almost Esq. says:

      Get out of CA Friend. I got out of the PRK 5 months back for a free state, and I am loving it.

      1. Soon enough bud. Soon enough. I love the state but hate the people and politics. I’m sure I can find another state to love though. Texas really impressed me when I was there. Escape from Kommiefornia is something you have to properly plan for especially in my industry. Gimme 5 years and I’ll be able to retire from the big money job, buy a house in rural Texas and be done with this pig sty of a state.

  3. avatar Jeff the Griz says:

    Fortunate for me my bed partner/wife is not crazy, and I am not abusive. Unfortunately for several guys I know they stick their D in crazy and when she leaves she files a PPO, with or without justification. Effectively destroying their ability to not go to jail if in possession of a firearm. Of the 5 guys I have seen this happen to, only 1 was able to convince the court he was the victim and have the PPO shredded. I think it’s good to do more along the lines of giving women self defense training and ccw training, how about constitutional carry for all?
    One would think feminist would push for this since ” all men are rapists”(heard one say this)

    1. avatar Alex says:

      I have a friend that is stuck in a marriage with a women that has Borderline Personality Disorder.
      https://shrink4men.wordpress.com/2009/01/30/10-signs-your-girlfriend-or-wife-is-an-emotional-bully/comment-page-47/#comment-245021 These women will accuse you of abuse, while in reality, they are the abusers.
      However, THEY will be believed by the authorities 99% of the time. Just like most illnesses, the crazy usually does not come out until several years into the relationship, and by that time, children are usually involved. So,
      what do you do, give up your kids and guns, or stick it out…for better or for worse?

  4. avatar Peter says:

    Tell this to Nicole Brown Simpson and Ron Goldman’s families.

    1. avatar jwm says:

      Violent death only counts if a gun is used. For some really strange reason the grabbers think that being murdered by a gun is somehow worse than being stabbed or beaten or burned to death.

      Murder is murder regardless of weapon.

    2. avatar Mk10108 says:

      Nicole and Ron are dead because they both knew what a nut job OJ was and failed to protect themselves with a gun. OJ chose a knife so it could not be ballistically traced. That fact is the fallacy of gun confiscation in all it forms.

    3. avatar Bruce says:

      I remain unconvinced that OJ was the perp there. As my crim law prof (whom I still see on TV on occasion as a talking head) said back when I was in law school – there are essentially two types of murder, premeditated and due to passion. You can most often tell them apart by how much blood there is – typically the crimes of passion are bloody, and the premeditated type are mostly not. Which gets to the problem of whether this was a crime of passion or a premeditated crime. Either OJ was smart enough that he could make the very tight timing work, but then, he likely wouldn’t have used a knife, and esp. not leaving that much blood around when expecting to make a plane flight back east very soon after that. They never did answer the question of how he got that much blood off himself before he got to the airport.

      My other problem there was that Mark Furhman (or however you spell his name) so obviously violated OJ’s civil rights by going over the wall to his house, instead of waiting for OJ to show up, or a warrant to arrive. You just don’t rationally send 4 detectives to OJ’s house to tell him that his wife is dead. You send one or two uniforms. And, then one of the detectives goes over the wall, and then they just happen to find the bloody glove. They weren’t going to get a warrant, based on what they knew at that time, so they took a short cut, which legally should have resulted in everything they found being suppressed. If, they hadn’t taken the glove from the original crime scene in the first place (because, if they are going to lie about going over the fence, they are likely to lie about everything else).

      All that said, you have to say that OJ just doesn’t have all that much in the brains category, having engaged in armed robbery in the place in this country with traditionally the most intense video surveillance – a Las Vegas casino. I just don’t see someone stupid enough to try to pull off an armed robbery in a LV casino being smart enough to pull off the murder of his wife and Goldman, given the tight timing involved.

      1. avatar Cliff H says:

        Argued EXACTLY like a defense attorney, rather than someone seeking objective truth.

        1. Cliff, the law has never been about finding out the truth. It decrees what the truth is. There’s a big difference. Trials attempt to determine the facts but once they’re done the facts are whatever the trial said it was. Anyone that thinks the truth is what’s going to come out at any trial is kidding themselves or incredible naive.

      2. avatar billy-bob says:

        CTE

  5. avatar Shawn says:

    Unacceptable.

    1. avatar sagebrushracer says:

      I agree.

      Now for the million dollar question, what we gonna do about it?

  6. avatar TyrannyOfEvilMen says:

    The political left is now so miseducated that they no longer believe in or even understand the concepts of justice or due process of law.

    1. avatar 505markf says:

      No amount of education will cure the Left of their ills. The problem is not that they do not know, but that they do not care. In their view no constitutional argument will ever win against the feelings of an aggrieved party, especially if they are a member of an “oppressed” population.

    2. avatar uncommon_sense says:

      Here is the larger problem: Progressives worship Big Government and by extension anything government does is hunky dory. In the mind of a Progressive, if their legislature passed a law and a court order draws from that law, that IS “Due Process” and the court order is fine. The fact that such a procedure is not actually “due process” doesn’t matter to them.

      1. avatar Sam I Am says:

        Anyone have a valid definition of “due process”?

        Maybe…..Vitek v. Jones

        – Written notice to the prisoner that a transfer to a mental hospital is being considered;

        – A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given;
        An opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or crossexamination;

        – An independent decisionmaker;
        – A written statement by the factfinder as to the evidence relied on and the reasons for transferring the inmate;

        – Availability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own (It must be noted however that a majority of Justices rejected this right to state-furnished counsel.[23]); and

        – Effective and timely notice of all the foregoing rights.

        NOTE: these elements are not required to be followed in the order listed; these elements are sufficiently vague to allow for something like ex parte accusations preceding issuing a temporary resstraining order.

        The Calif restraining order kabobble is somehow perceived as different from normal civil or criminal procedure. In both, someone complains to authority (no notice is required prior to the complaing); the court issues a requirement for some action on the part of the subject of the complaint (search warrant, where property can be siezed?), the named potential offender can then be subject to an arrest warrant (without prior notice), In criminal proceedings, the named individual can be jailed without a trial (bail hearings do not resolve points of law), then the now suspect/defendant can be held in jail for however long it takes to post bond, or go to a pre-trial hearing. All of this is “due process”, and the deprivation of property and or liberty is valid BEFORE TRIAL.

        Seems that on this blog, people perceive there is something different about removal of guns prior to trial. Consider the restraining order a combination of search and arrest, in that a judge orders the named individual to surrender certain property and prevents complete freedom of the receiver (contact restrictions, rather than jail awaiting bond).

        Just as a defendant has a right to appear at trial and challenge the complaint, along with seeking return of seized property, the recipient of the temporary restraining order has a procedure to redress the order and recover property.

        1. avatar uncommon_sense says:

          Just as a defendant has a right to appear at trial and challenge the complaint, along with seeking return of seized property, the recipient of the temporary restraining order has a procedure to redress the order and recover property.

          Right. Or not. I have never heard of anyone reversing a temporary restraining order. If it ever happens, it is a wildly small minority of such orders.

          As for claiming parallels between temporary restraining orders and arrest warrants …
          in order for a judge to issue an arrest warrant, do they not require an affidavit listing substantial evidence and sworn testimony in order to issue the warrant? The reason that is significant is that the people who claim such evidence and sworn testimony have opened themselves up to felony perjury charges and other possible charges. On the other hand a woman can say that her boyfriend hit her with a pillow and threatened her and that is all that a judge deems necessary to issue a temporary restraining order. Does the court require the woman to make those claims on oath under penalty of perjury? Does the woman face prison time if her claims are proven to be false? And how can a court issue any order when no one has heard the man’s side of the story? If her testimony and his testimony contradict and there is no other evidence or witnesses, how can a court issue any orders?

          The bar is low enough as it is to issue arrest warrants. The problem is that the bar is unacceptably low — in fact there is no bar at all — to issue a temporary restraining order.

        2. avatar Sam I Am says:

          Yes, there are qualitative and quantitative differences in details. The explanation was to illustrate that there is nothing bizzare about restraining orders relieving someone of property or liberty. Restraining orders and arrest warrants (along with court summons) are part of, not separate from due process. Due process is not dependent on whether one likes the law or process. It is dependent on certain elements (listed in the comments you are addressing) being present. The result being unsatisfactory to the recipient of the restraining order is not a de facto violation of due process. The problem for people using this blog is that guns can be removed without a trial (as they can in criminal law). Under law, the second amendment is not sacrosanct, immune from due process, or some sort of ancient talisman warding off due process.

        3. avatar uncommon_sense says:

          Sam I Am,

          I understand what you are saying and I still think it is unjust in practice.

          It is one thing when a prosecutor presents compelling physical evidence, police affidavits, and sworn witness testimony to obtain an arrest warrant. It is something entirely different when a woman fills out a form at a police station with no compelling evidence and no sworn witness testimony and then a judge automatically issues a restraining order. If you cannot see the difference or think that such a situation constitutes “due process”, I don’t know what else to say.

        4. avatar george from fort worth says:

          An arrest warrant can be issued on less than you think; depends on circumstances. Point of all that was/is due process is not a shield against adverse action. Due process is whatever process exists. If the process fails the test in court, it is invalidated. The person subjected to the rejected due process did not escape the initial actions. Taking your proposition as a starting point, all the action pre-arrest/warrant issue is done without notice to the suspect, same as the domestic violence restraining order. As the recipient of the restraining order, or the arrest, you have no opportunity to stop the process prior to being impaired by it. Simply because the legal machinery can impact you before you even have a clue does not make due process a problem. If the issue of a restraining order because some simply declares, “he/she has a gun; i think they are dangerous.”, is a problem for you, the redress is via the political process. If that fails, or is too much trouble, due process remains due process as instituted. The heart of the matter here is most people on this blog believe the government cannot legitimately relieve them of their guns if the blog fan doesn’t want it to.

    3. avatar CB says:

      We officially jettisoned due process when we passed the Patriot Act. Didn’t see too many Republicans complaining about that.

      1. avatar James L. Smith says:

        It wasn’t so much the Patriot that killed due process as the VAWA, the Violence Against Women Act.

  7. avatar explanist says:

    what we have here is the unholy offspring of:

    “the woman is always right”

    mated with

    “accusation = proof”

  8. avatar OODAloop says:

    BTW, the quote credited to Bruce Krafft
    The freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil, and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility.
    Is actually that of L. Neil Smith, Sci-Fi author and Libertarian. It originally came from a letter he wrote titled Letter to a Liberal Colleague. All of his books revolve around Libertarian ideas and I’d highly recommend The Probability Broach.

    1. avatar Robert Farago says:

      Text amended.

  9. avatar Pg2 says:

    When you hear/see the word “consensus”, you are very likely being exposed to organized propaganda.

  10. avatar LarryinTX says:

    “Studies by public health researchers have generally concluded that such laws, when properly implemented, can reduce deaths.”

    Although they never have, actually. So what were those fools actually researching? And probably more importantly, who was paying them for their “research”, and how much? Can no one spell “corruption”?

  11. avatar alex says:

    America is/was a constitutional republic not a democracy. Unfortunately all we are now is a bureaucracy

  12. avatar Erik says:

    This is not the NRA’s role. It’s a highly politicized matter that affects non gun owners as well as gun owners. NRA represents just gun owners. They don’t fight of your right to fish or smoke or drive a diesel. The NRA isn’t lobbying for you to live with crazy. This is an ACLU issue if anything.

  13. avatar Sam I Am says:

    RF, coupla things here:

    1. You are quite correct that ex parte court orders violate due process, except due process means available legal process. If the government/courts provide a process for a person to seek redress after accusation (restraining order issued), then due process exists. It is common to assume “due process” means the government may take no action against an individual until found guilty in court is a common and needless misunderstanding.

    2. All our civil rights, regardless of source, are subject to elimination through the political process. To wit: the US constitution is amendable, including 2A, only the first amendment has been identified (through a specific section of the constitution) as being not subject to alteration in specific situations).

    While people may rail against the fact that rights are subject to a vote, the fact remains. Should people believe that certain rights can never be curtailed by political/legal action, then there are only two methods of redress: ballot box; armed rebellion. Since we are so far beyond what triggered the revolution of 1776, there is almost zero chance the citizenry will rise up in arms to prevent the erosion of 2A rights. Example: Bundy clan had two armed confrontations with federal authorities; thousands of angry, armed citizens did not show up in defense. Same with Ruby Ridge. Same with Waco. This is the reason pro-gun people need to “sell” their position properly, not shove it in the faces of the opposition, not refuse to talk about ways to persuade. Persuading and selling a proposition is not the equivalent of “compromise” or surrender.

    1. avatar neiowa says:

      only the first amendment has been identified (through a specific section of the constitution) as being not subject to alteration in specific situations).

      Do tell. The intent of the 1st was to address/protect POLITICAL speech but has been extended to all manner of antisocial activity that founders would have abhorred.

      1. avatar Sam I Am says:

        Agreed.

      2. avatar jwm says:

        Some of the founders were slave owners yet they signed on to a document that declared all men to be created equal.

        The founders were very flawed. Amazing the document they managed to put together in spite of their flaws.

  14. avatar Porkchop says:

    I’m a lawyer in Virginia, I sometime represent family abuse victims. Here in Virginia, we have to have a hearing before a Judge in order to get a permanent protective order against a family abuser. I usually win, but I have lost quite a few. It’s nowhere near as easy people (usually the abuser after losing at the hearing) say it is. You have to put on real evidence of real harm and the real threat of future harm.

    First of all, if a spouse or other family member seeks a protective order, the court issues a preliminary protective order, there has to be fully hearing within 15 days or the preliminary order is dismissed. The petitioner cannot ask for an extension, although the respondent can. You get a full evidentiary hearing. The petitioner has to put on evidence; the respondent can do that, too. Then the judge decides. This is no rubberstamp proceeding.

    I’ve looked at a lot of pictures of women with strangulation marks on their necks and other wounds, eyes swollen shut, holes in the wall from when her significant other put her head through it. I don’t know about other jurisdictions, but in Virginia a case that is only “he said, she said” doesn’t win. The people that I have seen (mostly men, but not all) really did something serious, often many times before they were caught or reported.

    I’m a strong second amendment supporter, but I certainly think that the people that I personally have seen who have committed acts of family abuse have demonstrated that they are not citizens who can be trusted with firearms. As a general matter, they are the kind of people who have little to no self-control and significant anger issues; sometimes drug or alcohol problems as well. One particular case comes to mind — after strangling his wife nearly to death, the husband said, “I’m going to go get the gun and shoot you.” Fortunately for her, she had been carrying the gun herself that day and had not put it back in its usual storage place — while he was looking for the weapon, she managed to crawl out the back door for help. By the time he found it, she was gone That guy should not have a firearm; the court issued a protective order; I have no problem with the Commonwealth of Virginia saying he should not possess one.

    1. avatar Sam I Am says:

      What about temporary restraining orders?

    2. avatar neiowa says:

      Do you ever ask the gal WTF they are still hanging out with the knuckledragger after the FIRST TIME. I suppose the victimhood lobby would have your license if you did

      1. avatar Porkchop says:

        @neiowa

        I don’t ask, because that’s not my job — I’m their lawyer, not their counselor.

        Some tell me, though. I deal with a lot of immigrants (mostly legal, some not) — many of them have no idea what to do or where to go; some have significant language problems; some have controlling partners who use various means of keeping them away from anyone who might help; sometimes there are cultural barriers; fear of losing the children.

        But the one I mentioned above was an American-born woman married to a man of like background. Both were college educated. She was younger than he and had gone back to school for another degree; he got jealous of the fact that she was spending time around her fellow-students, some of whom were male. Jealousy –> Imaginary unfaithfulness –> Rage –> Assault. She left the first time he tried to kill her.

        I am a little puzzled by your reference to the victim-hood lobby — I would certainly hope you would agree that it is a good thing that someone is willing to lobby on behalf of women who have been beaten to a pulp by their boyfriends/husbands or 12-year-old girls who have been impregnated by their fathers (I’ve seen both).

      2. avatar CB says:

        If you did just a little research on the subject you’d understand why domestic abuse victims stay. Try this link: https://www.google.com/?gws_rd=ssl#q=why+domestic+abuse+victims+stay

    3. avatar Ralph says:

      @Porkchop, there are jurisdictions where judges give out restraining orders as if they were party favors. There are also jurisdictions where conventional matrimonial practice involves obtaining a DRO against the husband concurrent with service of process, for the purpose of leverage.

      Matrimonial practice has become a sewer.

      1. avatar Porkchop says:

        Become?

    4. avatar Mark N. says:

      The law is the same in California, and I suspect in most if not all states that provide for domestic violence restraining orders. A temporary order is just that, temporary, and expires if not served on the abuser, or if no action is taken at the hearing set when the order is issued. Which is not all that infrequent. And courts have universally concluded that temporary orders, as long as a full evidentiary hearing is held within a short period of time, do not violate due process. Ranting and raving about it will never change the law in this regard.

      I think it is also true that spouses/domestic partners who finally leave and obtain temporary orders are under an increased risk of harm as soon as the significant other is served. The typical reaction to the abused leaving, and to service of a restraining order, is rage (a perfectly predictable reaction given the type of person we are dealing with), followed by threats and or stalking, and not uncommonly, sadly, physical assaults and/or murders. (Which is why shelters at undisclosed locations are so critical.)

      We are not dealing with your average responsible gun owner. We are most often dealing with violent, angry, controlling individuals who seek to reassert their dominance through violence. Giving the abused a brief respite (and possibly an edge in self-defense) is hardly offensive. Abuses of the TRO process, more often than not, are self-correcting.

    5. avatar MeRp says:

      Porkchop and Mark N: both of you are working on the assumption that the temporary restraining order is always fully justified; you speak of the horrors visited upon spouses by their horrible partners to justify the application of confiscation to temporary restraining orders. But, the fact remains that temporary restraining orders are routinely visited upon innocent parties, often with no more than a non-sworn statement by a single party. Compounding this injustice with further injustice certainly does not seem to abide by the basic principle of innocent until proven guilty; quite the opposite; it assumes guilt until trial is made. Furthermore, the state has shown a strong tendency to make temporary confiscations permanent either by using exorbitant impound fees or by destroying or disappearing confiscated goods. They do so with no potential redress either.

      If sufficient evidence exists to have probable cause to believe that a crime has committed then an arrest warrant can be issued quite quickly and the alleged perpetrator can be arrested; if this is the case, what is the need for temporary restraining orders? Aren’t they simply an admission that insufficient evidence exists to reasonably consider that a crime has been committed by this person? If so, then the presumed innocent person upon whom they are visited should not be penalized, especially with potentially permanent penalties, any more than necessary.

      1. avatar Porkchop says:

        The accused generally bonds out in a few hours on misdemeanor family abuse charges. (It may take a little longer if there are felony charges). The EPO is in place so that the angry guy (usually) won’t return home and continue the fray. The criminal process and the civil process are parallel, but separate. Frequently, my clients’s abusers have been arrested and charged with misdemeanor family abuse.

        Second, at least in Virginia, the prohibition on firearms possession that is about to be adopted in the General Assembly will only apply when there is a _permanent_ protective order, not a TRO (known here as an emergency protective order or a preliminary protective order, depending on the stage of the case). I don’t know about other states, but they don’t run around seizing firearms here. Under the new statute, if a permanent protective order is issued, then the subject of the order will have 24 hours to find a new home for his (or her) firearms. By the way, the maximum (and usual) term of a protective order is two years, so unless the PPO is renewed (which is actually quite rare here) the prohibition on possession ends when the PPO expires.

  15. avatar Indiana Tom says:

    Some of the strictest state laws create processes for seizing firearms from abusers and extend gun bans to stalkers, abusive dating partners and those who are subject to temporary protective orders. ex parte is a Latin legal term meaning “a decision decided by a judge without requiring all of the parties to the controversy to be present.” In other words, due process, the right to confront one’s accusers, guaranteed by Fifth and Fourteenth Amendments to the U.S. Constitution, doesn’t apply

    This process will go on to apply to bigger and better things. Precedents are being established.

    1. avatar Porkchop says:

      @Indiana Tom

      The Supreme Court has held in any number of contexts that due process requires that the subject of an ex parte order must be allowed to challenge it.

      1. avatar Sam I Am says:

        But not before it is issued.

        1. avatar Porkchop says:

          @Sam I Am

          You are right, that’s what makes it ex parte. Are you suggesting that there are never circumstances where ex parte orders might be appropriate?

          The way it works here, usually, is that if the police make an arrest in a domestic abuse case, they get a magistrate to issue a 72-hour emergency protective order. That gives the abused party time to go to the courthouse to apply for a preliminary protective order. If, based on the ex parte presentation of evidence a judge determines that there is a basis to believe domestic abuse has taken place, then he issues a preliminary protective order that will last a maximum of 15 days. A hearing must be held within 15 days unless the subject of the order (i.e., the accused abuser) asks for more time. Both the emergency order and the preliminary order will expire on their own terms unless the petitioner goes forward and presents evidence in an adversary hearing where the respondent may be represented (and usually is) represented by counsel. If the Juvenile and Domestic Relations General District Court grants the order, the respondent has the right to appeal to the Circuit Court and get a new hearing — a trial de novo — where a new judge hears all of the evidence over again. There’s plenty of opportunity to be heard.

        2. avatar Sam I Am says:

          Nope. Just pointing out that a trial or other means to challenge a court order is not required prior to issuing the court order. To some this seems to violate due process, without a serviceable understanding of how due process actually works. The issuance of the restraining order is, in fact, within due process.

  16. avatar Indiana Tom says:

    Actually, one of the worst wife abusers I personally know of just beat his wife to a pulp using his fists.

    1. avatar Porkchop says:

      So, this makes him a good candidate to keep and bear arms?

      1. avatar Sam I Am says:

        If the beater goes through the legal process(es) and competes all requirements, why not? Or are we again describing how we do, in fact, agree that 2A limits are reasonable….if they are limits we like?

        1. avatar Porkchop says:

          18 USC 922(g)(8) has been upheld as a reasonable restriction by most or all of the U.S. Courts of Appeals after having been approved by overwhelming majorities in both houses of Congress. Indeed, the Second-Amendment-friendly Fourth Circuit, which just ruled against the Maryland assault weapons ban and the large capacity magazine ban, has ruled on a number of occasions that section 922(g) does not violate the Second Amendment. The only thing the new Virginia statute does is make the same conduct a state law violation, too. So, I don’t think you are going to get very far arguing that this is not a reasonable restriction,

        2. avatar Sam I Am says:

          We can consistently point out “…shall not be infringed.”, but truth is every “God-given, natural and civil right…” can be restricted, is restricted in some manner that sufficient political power deems appropriate. “….shall not be infringed.” is not swaying the anti-gun people, and has limited usefulness in court.

        3. avatar Porkchop says:

          @ Sam I Am

          I’d just like to clarify your position:

          Is it your position that NO restrictions on firearms (or other arms) ownership can be valid without falling afoul of the “shall not be infringed” language?

          Are you okay barring possession by convicted felons? (All convicted felons? Violent convicted felons?)
          Persons adjudicated mentally ill?

          Those restrictions have been around for a long time.

          Do you agree that those (or either of them) are “reasonable” restrictions?

          If so, how do you distinguish those categories from people who have been adjudicated by a court after an adversary evidentiary hearing to have beaten the crap out of their domestic partners?

          If you don’t like civil domestic protective orders, what about criminal protective orders? We have those in Virginia, too. If you are convicted of misdemeanor family abuse, the court issues a two-year permanent protective order (often superseding an earlier two-year civil permanent protective order). Different standards of proof in a criminal case. Is that a reasonable restriction? If not, why not? I’m listening.

        4. avatar Sam I Am says:

          To clarify, or expand, there are many here on the blog who have heart attacks if someone proposes any, any, restriction on RTKBA. Except….those restrictions THEY personally approve of. The issue at point, restoring RTKBA to felons generates the reliable split between 2A being absolute, and 2A being absolute except for certain restrictions that are favored, or make “common sense”. Many of those who view 2A as absolute and immune from restriction (despite the constitutional authority to amend the constitution with sufficient popular approval). But then a goodly number of those absolutists somehow find certain restrictions are permissible….like permanently barring felons from gun ownership. The general assumption seems to be that under the law, “felonies” represent only the most heinous, grievous, most brutal crimes. Which is blatantly not true. In order to “get tough on crime”, many relatively minor infractions of law have been elevated to felonies in order to be subject to the most harsh penalties.

          Short version, what is the constitutional authority to deny gun ownership to felons who have completed all elements of their punishment? Given the low bar set for a felonious crime, what predictable and legitimate standard(s) applies when determining which violations of the law rate a “felony” designation?

        5. avatar Porkchop says:

          @Sam I Am

          Fair enough — that’s half an answer, more or less. Violent felons only, and (I think) only during the term of their sentences and any parole period, with firearms to be restored after completion of the sentence. Presumably, then, restrictions during probation would be okay, too? That’s not an unreasonable position to argue given the large number of nonviolent felonies out there, both state and federal. Should a shoplifter or bad-check passer really be equated with a serial killer.

          But, practically speaking, if a prisoner does, say, 20 years for second degree murder (let’s pretend that’s the maximum possible sentence for purposes of this hypothetical), would you be okay with that prisoner walking out the prison gate and down the street to the local gun shop to buy a firearm? Would the circumstances of the crime matter — say, prisoner shot a guy on the street in front of witnesses and promised at his sentencing that when he got out he would find and kill all the witnesses who testified against him?

          What degree of propensity to violence and what standard of proof would be necessary to satisfy you?

          You didn’t respond with respect to persons adjudicated as mentally ill. Would you agree that a bat-shit crazy guy who starts trying to hurt people with a samurai sword at the local mall probably should not be buying firearms for some period of time? Mild depression, maybe not so much.

        6. avatar Sam I Am says:

          All alog, I have noted that once punishment is complete (term plus probation, if any) either society agrees the person has paid the society-approved price, everything should reset to zero (beginning). That is, any and all rights suspended previously because of the punishment should be fully restored. Using “predictive” judgement that someone once convicted will do it again just may be too much “Minority Report”.

        7. avatar Porkchop says:

          Okay, I understand your position — don’t agree with it — but understand it.

          “Minority Report” involved predictions that were not based on prior behavior. I think one can reasonably take the position that past behavior is on basis to predict future behavior.

        8. avatar Sam I Am says:

          Then why not make all felonies life without parole? Or are we saying that if you commit a crime, there is no way to ever recover your “God-given, natural and civil rights to self-defense”?

        9. avatar Porkchop says:

          That brings up an interesting thought. The construction of prisons to hold convicted felons was originally a reform of the English common law system that imposed the death penalty for all felonies (except for the one-time “benefit of clergy”).

          Looked at from that perspective, one could look at the restrictions on the right to keep and bear arms this way: “You’ve been convicted of a felony. We’re not going to execute you; instead, we are going to imprison you for a term of years, and, when we let you go, we’re not going to allow you to keep or bear arms. Whatever God-given right you may have had to defend yourself with weapons was waived when you were convicted. Consider yourself lucky not to be dead.”

        10. avatar george from fort worth says:

          I can agree with that approach (which some may say is embedded in law to day, without the explanatory declaration), so long as everyone stops screaming “….shall not be infringed”.

  17. avatar Mecha75 says:

    I have a better non-liberty reducing solution. allow those who need to get a protective injunction on another to carry for the duration of the injunction. Also remove any waiting period for them when buying a firearm to protect themselves.

    1. avatar Mark N. says:

      Some states allow a domestic violence victim to carry without a license upon issuance of a TRO. Strangely enough, California is one of them. However, many victims do not own guns, and when they finally leave, leave with little more than the clothes on their back and little if any money (most abusers completely control bank accounts, giving out just enough cash to allow the abused to purchase that which the abuser deems necessary, e.g., groceries) which makes it difficult to purchase a firearm, waiting period or not.

    2. avatar Porkchop says:

      @Mech75

      I don’t disagree with you that they should be allowed to carry if otherwise eligible, but most of the women I see in this context don’t have two nickels to rub together. All my family abuse cases are pro bono. My clients don’t know how they are going to get baby food or pay the rent, so buying a firearm and taking a concealed carry course are pretty much out of the question.

  18. avatar Rusty Chains says:

    The way to push back on this is to amend every piece of legislation to make a protective order an immediate permit to carry good for a minimum of six months beyond it’s expiration. Name it the Abuser Intervention Act and dare the anti-gun crowd to oppose it and when they do accuse them of waging war against abused women.

  19. avatar Ralph says:

    The question about due process is “how much process is due.” Due process is not synonymous with a trial. It means notice and an opportunity to be heard, which can occur at a later time and date.

    The issuance of a DRO presupposes an emergency. Once upon a time, when Xanax-dosed soccer moms didn’t run the world, a DRO was tough to get. Now, in many jurisdictions, a DRO is a DRJoke.

    Focusing on the temporary loss of gun rights is a classic misdirection. We should be focusing on the war on men, enabled in this situation by the uncontrolled dispensation of DROs when no such order should be contemplated.

  20. avatar Stuki Moi says:

    I hate to come across as the resident suopposed “woman hater”, but there is a long, nasty and successful history amongst statists of “when logic and reason fails, appeal to hysterical, jilted women.”

    With more and more “sexually liberated” women hitting the wall, hence being considered useful for, at best, a pump and dump by the kind of men they were used to getting a smidgen more attention from in their younger, tighter days; the supply of those who can only get attention from one remaining alpha, the government, is increasing daily.

    The Founders’ championed voting rights on a, in practice, per proper household basis. As always, not because they were misguided about something. And a gaggle of dumb progressives somehow managed to get it right (fat chance).

    As far as gun restrictions goes, as most on this site seem to get, unless you are locked up or hanging, go ahead and get all the belt guns, field artillery and surface to (low flying) air missiles your wallet can handle.

    1. avatar Porkchop says:

      Well, in my experience, the women I deal with are sometimes hysterical, but never because they have been jilted — just the opposite. It’s usually because they are afraid to leave, and the bruises explain why.

      And you do come across that way. I take it from your post that you believe that the biggest problems this country faces started when women women got the vote and birth control. I’m pretty sure that you (or your son, depending on your age) won’t be dating any of my daughters with that approach.

      I think you need to read, or reread, Madison’s Notes on the Debates in the Federal Convention of 1787. The founders had anything but a uniform view of voting rights.

      1. avatar Stuki Moi says:

        “Well, in my experience, the women I deal with are sometimes hysterical, but never because they have been jilted — just the opposite. It’s usually because they are afraid to leave, and the bruises explain why.”

        Then you deal with a limited demographic. Not at all representative of the constituency for this latest gun grab push.

        “And you do come across that way. I take it from your post that you believe that the biggest problems this country faces started when women women got the vote and birth control. I’m pretty sure that you (or your son, depending on your age) won’t be dating any of my daughters with that approach.”

        Problems didn’t start with female suffrage (Sherman act, federal income tax, Fed, direct election of senators all occurred prior), but they were certainly turbocharged by entry into the voting force of a mass of generally more pliant subjects. John Lott’s research very strongly suggests this empirically, and theoretically, it’s a veritable obvious.

        As for birth control; women have always wielded massive social, and economic, power, on account of their role as mothers. With many increasingly having no offspring, and no children to keep their now older, wealthier hence more “attractive,” former husbands/live-ins from straying, they have “noone” who cares for them anymore. But, on account of their ability to vote, plenty of politicians not above pretending to.

        “I think you need to read, or reread, Madison’s Notes on the Debates in the Federal Convention of 1787. The founders had anything but a uniform view of voting rights.”

        Any mass of people are going to play host to diverging opinions. The sum total, their compounded ‘wisdom of the crowds”, if you wish, led them to the final outcome. Which is the one that made America the “Shining City on the Hill”, for at least the next century. And, though increasingly dim, perhaps another half century beyond that.

        1. avatar Porkchop says:

          Okay, so the problems we have are that:

          (1) We don’t have enough economic monopolies in our business community;
          (2) We have a federal income tax (there was a constitutional amendment on that)
          (3) We have a central bank, and we prevent other banks from printing their own banknotes (Do we throw the gold standard in there, too?);
          (4) We get to vote for our senators, so they have to spend money broadly to campaign as opposed to having them directly bribe state legislators to get elected (there was a constitutional amendment on that, too); and
          (5) Angry, unattractive old women who have not produced enough children get to vote (actually, there was a constitutional amendment on that, too).

          I thought John Lott’s research had to do with guns and crime, not pliant hags and harridans, but I may be misinformed.

          Your views lead me to think that women overall are less pliant than you would like, not more pliant.

        2. avatar Stuki Moi says:

          “(1) We don’t have enough economic monopolies in our business community;”
          We may or may not. Will inevitably differ from day to day, year to year, and depending on ones perspective. Optimal number of “monopolies”, and even a meaningful operational definition of “monopoly” was hardly handed down at Sinai, after all.
          What we do for certain have, is a Federal Government with one more, very big, stick with which to cajole very powerful institutions to do their bidding. Instead of said institutions operating, whether ultimately in the pursuit of “good” or “bad”, more independently. With more “liberty”, so to speak.

          “(2) We have a federal income tax (there was a constitutional amendment on that)”
          Again, making the Federal Government more powerful and well funded. Giving them direct, unfettered access to peoples wallets, hence yet another lever which witch to make and keep them subservient.

          “(3) We have a central bank, and we prevent other banks from printing their own banknotes (Do we throw the gold standard in there, too?);”
          We don’t so much prevent other banks from printing banknotes, as make it unnecessary for them to do so, since they now have access to banknotes guaranteed by taxpayers, at the point of a lot of very big guns. Previously, they could very well print banknotes, but those were guaranteed only by the full faith and credit of whatever bank issued them. Leaving You and Me out of it, if they made bad loans or were otherwise incompetent or dishonest. Which lead those sensibly skeptical, to not really want to take such notes in trade. Leading gold to become the de facto reserve currency. And since gold cannot be printed willy nilly, it is largely safe against ever more prevalent and crass theft and favoritism by debasement. Which are protections we no longer enjoy. Not even remotely close. Hence, yet another means for the Federal Government to get at your wallet. Hence aiding them in “motivating”/controlling behavior of otherwise free, or at least freer, men.
          In the beginning, Gold was still kept as some sort of limitation on the sheer level of outright abuse the Fed could get away with. But, as with all government program, the controls got wiped out. one by one. by FDR, then Nixon. Until now, even many people claiming to be “Libertarian”, are generally pliant servants of whatever schemes the feds and ruling classes cook up, since they owe money to the banks, the banksters own all property and “private property must be respected” blah, blah…etc., etc

          (4) We get to vote for our senators, so they have to spend money broadly to campaign as opposed to having them directly bribe state legislators to get elected (there was a constitutional amendment on that, too);
          In other words, yet another means of centralizing power in the hands of the Federal Government. This time by bypassing the potential limiting nuisance that is a more local legislature.
          More local meaning 1)more directly accountable to each citizen, and 2)less monopolistic, putting them in competition with others like them, hence more limited in how extractive and abusive they can allow themselves to get. But you knew that already, I presume, being all concerned about the negative effects of “monopolies” and all.

          “(5) Angry, unattractive old women who have not produced enough children get to vote (actually, there was a constitutional amendment on that, too).

          I thought John Lott’s research had to do with guns and crime, not pliant hags and harridans, but I may be misinformed.”

          I doubt there are looks criteria on female suffrage. Ditto for child count. Lott and Kenny looked at how state government expenditures and intrusiveness changed from state to state, over a period when some states had adopted female suffrage, while others had not yet. What they ended up seeing, was an unusually strong, for social science, correlation, between women in a state getting the vote, and expenditures/intrusiveness in that state increasing. Vis-a-vis states that had not given women suffrage yet. Probably one of the least wishy washy and handwawy demonstrations of a correlation in recent social science anything.

          And while it’s much harder to find comparative controls wrt women voting in Federal elections (that monopoly thing again), I doubt anyone would argue that the Federal Government has exactly shrank since passage of universal suffrage. So, at the very least, there is little evidence granting vote to womenfolk were particularly successful at safeguarding liberty.

          Lott has looked at guns as well. Managed to do more than one thing in his life, that busy man….

          “Your views lead me to think that women overall are less pliant than you would like, not more pliant.”
          Blah, blah petty feminist ad hominems. Theory and empiri both suggests female suffrage, highly probably, result in a larger and more intrusive government, than lack thereof. And in a society where the sheer size and intrusiveness of government is far and away the biggest threat to whatever may remain of so called “liberty”, that is really all the reason anyone could ask for, to abolish that particular alpha-male-dictator-making-and-sustaining historical aberration. For the better for both men and women.

        3. avatar Porkchop says:

          ” ‘Your views lead me to think that women overall are less pliant than you would like, not more pliant.’
          Blah, blah petty feminist ad hominems.”

          In other words, yes.

        4. avatar Stuki Moi says:

          Can’t help with your reading comprehension problems. That’s something you have to work on yourself.

      2. avatar Ralph says:

        @Porkchop, I didn’t do much matrimonial work because I hated it, but all the men I counseled said the same thing — they just wanted their freedom — and all the women said the same thing — they wanted their husband’s balls for earrings.

        1. avatar Porkchop says:

          @Ralph

          Well, like Stuki Moi suggests, I guess I am exposed to a limited demographic, because the women I represent just want their freedom, and the guys are willing to do most anything to keep them around and subservient — choking, beatings, threats with knives and guns. There are a lot of injury photos from the back of the ambulance in my files. It’s not pretty.

  21. avatar Former Water Walker says:

    Hmmm…I just saw my long ago ex-wife’s FB page(it’s public). It seems she is homeless. 30some years ago she accused me of beating her. Didn’t happen. Strange world we live in where people make their whole sordid life public… So YEAH I believe women sometimes lie. I’m also happy nothing evil(to ME anyway) came of her false witness. And I don’t think you should lose your gun-rights without due process or being incarcerated. Period.

  22. avatar Louis Marschalko says:

    How odd! Our Western civilization survived until 50 years ago without “domestic violence/domestic abuse” being major issues. Somehow, I doubt that either human nature or human behavior changed.

    1. avatar jwm says:

      What do you expect from a holocaust denier? Sense?

  23. avatar Rob says:

    I was falsely accused of domestic violence. My former stepson was bi-polar, and borderline schizophrenic. After yet another evening of arguing, bargaining and attempting to get him under control, (verbally), he decided to go into his room and call 911. I came out of the bathroom to the sound of bullhorns and flashing police lights in my front yard. Unaware that I was the “perp”, I walked outside in shorts and a t shirt and was greeted with laser sighted M-4s (about 6) I was thrown to the cold cement of my driveway, and some over excited rookie cop put the cuffs on so tightly, I still have slight nerve damage to this day.
    Did I mention I was a SGT for a large local security company? I worked part time, about 30 hours a week at night , after putting in my 10 hour day at my regular job. I worked in the nearby big city, handling armed response to alarms, patrolling crack ridden Section 8 housing, and doing executive protection. We needed the money to pay for the psychiatrist and medication for the 17 yr old douche that just called the cops. Since the asshat local cops knew who I was and what I did (I had the same training and HIGHER firearms qualifications) , they wanted to make sure they humiliated me as much as possible.Took all the guns in my gun safe, my duty belt, and my credentials. I was suspended from my security job even though my chief was completely sympathetic. I had to move into a motel for 72 hours, and couldn’t even get my work laptop until I got an escort from one of the local cops. Six months later, the case (misdemeanor domestic violence) was still hanging in the system. My wife and I were foreclosed on, and had to move to a shitty little rental house, but at least stepson had moved out. I had cut a deal with an assistant DA to drop the charge, since I had a clean record and my wife told them I’d done nothing. Two weeks prior to the final hearing, I was sitting outside on my porch, drinking a beer, enjoying a quiet Summer evening. My wife had gone to bed, and it was just me and my rottweiler. Out of the darkness, my stepson came stumbling up our driveway. high on something and demanded a cigarette. Hindsight is 20/20, and if I had known about the shitstorm headed my way, I’d have given him a carton. When I refused, he went past me into the house, and as he did, he punched me in the back of my head so hard, I flew out of my chair and landed face first in the driveway. I got up , headed in the house to find him telling his mom how I’d attacked HIM ! I grabbed a pair of flip flops and left on foot. No wallet, no money, no cell phone. Within an hour, I was stopped by my old friend, officer friendly, I refused to make any statements and was arrested. Now I had a couple of felonies and bail jumping charges. After sitting in County for nearly a week before my hearing, I finally got out and had to borrow 15k from family to fight this nonsense. It took another year before I finally got out from under the weight of false charges, and I still had to take a misdemeanor bail jumping conviction because it would have cost me another 10-20k to go to trial in a very liberal , anti-man county. Within a couple of months of me getting my life back (had to sell most of the guns to pay for my defense, lost my rank at the security job and lost many of my clients at my regular job due to the distraction) this kid pushed his mom into a chair so hard he bruised her sternum. The cops came by again. and tried to get her to pin it on me. Shortly thereafter I packed up my car while she was at work, took my dog and never went back. I moved about 40 miles away to a conservative county and filed for divorce. That kid has had numerous felony charges over the years, mostly for assaults, and may very well be in prison for all I know. The point of this very long post is be very careful. The way these domestic violence laws are written leaves way too much discretion up to cops, and if you have a spouse or a kid that’s willing to game the system, you are screwed.

  24. avatar Big Boy says:

    Lots of due process in Minnesota. The NRA wouldn’t touch it (wife beaters image) so the local Gun Owners Civil Rights Alliance had to do it.

  25. avatar Anon says:

    I had a PPO (Restraining Order) issued against me for picking up my children at the time and in the manner listed in a divorce decree. So, as theoretically valuable as they may be, in Michigan at least, they are an easy way for someone to deprive the rights of someone else. For those who would aver that I exaggerate, the local news outlet did a report regarding the problem:

    http://woodtv.com/2016/02/02/attorney-easy-to-get-ppos-lead-to-chaos/

  26. avatar Christian says:

    I had a exwife that did any and every thing to cause problems for me i wasn’t able to evan speek in court i didn’t do anything wrong i had a restraining order put on my because she said i had tape recordings of her threats five writen statments that were notterised by other people the juge refused to evan hear or see proof i didnt do anything but try to make sure she wouldnt be able to walk all over me it wasnt tell a guardingal item lawyer for my children was involved that after the 3rd time she tryed a way out of line lie that he had enough i dont think it is right people are losing there rights because of a he said she said i have seen woman get arrested for dmv then to have a da charge the male for dmv because it is easyer to charge a male then a female people need to wake up inocent peoples lives are being ruend because of false acusations and also when these people are finaly found out to be lying they should be charged with a crime and inprisoned it took me 3 and a half years in my fight and i never even received a im sorry from the court and people want to blame guns for everything why dont they think if someone wants to kill taking a gun wont do anything if someone is a murderer the only way you can stop them is by real police work

    1. avatar Huntmaster says:

      Troll?

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