Gun control-minded Delaware legislators are in lockstep with their California colleagues, working to enact their version of a Gun Violence Restraining Order. SB 83 would empower Delaware courts to confiscate firearms from alleged domestic abusers without any testimony from the accused. The legal term for the process is ex parte. And it’s none too popular amongst fans of civil rights . . .
As Wikipedia explains, “the availability of ex parte orders or decrees from both federal and state courts is sharply limited by the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without due process of law.”
In a delewareonline.com article entitled Reducing abusers’ access to guns to save women’s lives former Republican state legislator turned anti-domestic violence advocate Liane Sorenson [above, center] somehow fails to offer a definition of ex parte while sweeping away any and all objections.
A domestic abuse victim who seeks a PFA [Protection From Abuse] order may be granted a temporary “ex parte” order to cover the period before a formal hearing – but only after a judge carefully evaluates the complainant’s sworn testimony and finds “immediate and present danger.” Generally ex parte orders last no more than 10 days, at which point a full hearing occurs. SB 83 would prohibit the purchase of a gun by someone during the period when he or she is subject to an ex parte PFA order.
Under current law, when PFA orders are issued, a court may order the abuser to surrender temporarily her/his firearms. SB 83 extends that protection to the critical period between the issuance of an ex parte order and the formal hearing of the complaint.
The ex parte process is meant to prevent a violent crime and does not usurp anyone’s Second Amendment rights. Nor does the surrender of guns violate the due-process rights of the abuser. Courts have repeatedly upheld the procedures for domestic violence protective orders, including ex parte orders, against due process challenges.
So an ex parte order mandating the confiscation of a gun owner’s firearms issued by a judge without prior notice doesn’t violate an accused domestic abuser’s Second Amendment protections (not rights) because . . . it doesn’t. And an ex parte gun confiscation order doesn’t violate the alleged abuser’s right to due process because . . . it doesn’t.
This is what passes for logic in a world where feel-good legislation earns PC pols brownie points, where its defenders can’t offer any statistical evidence that the law is even necessary. Even if it was, Americans’ natural, civil and Constitutionally protected right to keep and bear arms trumps questions of social utility. Except where it doesn’t.
Yet another reason to escape the Northeast for those who can. Probably coming soon to other NE states. I’m looking at you NJ, NY, MA, CT, et. al.
Protective orders are nonsense no matter where you live.
Shhhh, they are disarming their populace for the next Civil war, and it doesn’t even cost anything.
(Although, I would be interested in learning whether this campaign of theirs has taken a penny of foreign money to overthrow our Constitution, because there’s a name for that.)
Two things:
1) How about we get a rue on the books that we can remove politicians ex Parte for actions that we the citizens deem foolish.
2) While I concur with the sentiment of “get out while you can”, i feel this is the wrong thing to do as it give the Gun Grabbers a toe hold for establishing a ‘see we are winning’ attitude due to lack of contesting.
Already in effect in PA
Soon male gun owners will just stay single and have a arrangement only for their need of the moment.
Maybe if we were smarter we would
It’s called MGTOW.
Maximum Gross Take-Off Weight?
Such crap. Best way to handle this is for every woman to be enabled to provide their own defense. Anything else is sexist and patronizing.
I’ve long said that if a girl is really afraid for her life, give her a TRO and a Smith & Wesson (or other).
She’s either looking to manipulate/punish someone, or she’s ready to stop being a victim. Help her in the best way possible, without any of this guilty-until-proven-innocent nonsense.
In general a man can murder a woman without much trouble, with no need for a gun (See the recent abhorrent case in NJ) unless the woman has a gun.
Every time I hear someone call the US land of the free I mention ROs and GVROs and say: “It used to be”.
When exactly did it use to be that? Was it before the Civil War (when there were 4 million slaves in the country, possessing no freedoms at all)? Or after (when the expansion of the federal government began in its earnest)?
Keep in mind, there’s a difference between a populace being able to be free and them actually choosing to be free. Lead a horse to water, can’t make them drink and all that.
Sadly, she is apparently not just talking feelings and groundless conclusions here–even though there is plenty of that too. Courts have been upholding ex-parte orders against due-process challenges, as long as there is a “full hearing” at some point down the line, and not so far “down the line” as to be facially, flagrantly, patently unreasonable. Whatever “reasonable” means.
I have to note that the specific subject of this post does not seem to add all that much to an already bad situation. The “ex parte” confiscations evidently already exist. This new addition seems to be a way to keep someone from getting around such confiscations by the simple expedient of going out and buying another gun. Which is only logical, if you buy into the logic of the ex parte gun grabbing in the first place. Which the great State of Delaware obviously does. BTW, anybody else catch that reference to the “due process rights of the _abuser_ ?? Not “respondent”, not “defendant”, not “alleged abuser”…well, you get the point.
Yes…because to *Sorenson*, all men are ‘abusers’.
Same absurd logic.
Oh, hell, I misread the article. This does indeed add much more than I thought to the current situation. It makes all the gun sanctions that can be heaped on a party after a “full hearing” available after a mere ex parte review by a judge who has absolutely nothing to lose by granting every one that crosses his desk, and everything to lose if he fails to grant one and something bad happens. That is to say, on one aggrieved party’s unopposed say-so.
Even the headline, “Reducing abusers’ access to guns to save women’s lives”, is woefully misinformed and flat-out insultingly sexist. Apparently, “abusers” is a class of elusively male (and possibly Lesbian, I suppose) criminals that only women need protection from – at the expense of everyone’s rights. This smacks not just of PC, but of current -generation feminist propaganda, where all men are rapists and abusers and all women are victims….by default.
Surely, even the most dedicated gun-ownership advocate can recognize that domestic violence constitutes such a continuing crisis that reasonable sacrifices in personal freedom are necessary to protect women. Everybody knows that men who are involved in relationship problems are prone to violence. If we can just save the life of one person . . . (/heavy duty sarc/)
Breaking : Gov. Wolf ( D ) asks for a recall of Pa. state police nominee ( anti gun ) Marcus Brown , from Md. state police. A play for more time. We don’t want to be like Delaware or Maryland.
Good thing Penna’s House and Senate are R controlled.
Corman wants to move ahead so he must feel confident that Brown doesn’t have the votes for confirmation. The press has made a big deal about Brown wearing a PSP uniform, but there hasn’t been much about him being a gun grabber, although given his background and close ties to O’Malley, you know that has to be an issue. I’m pretty sure the Harrisburg rag hasn’t mentioned it once.
Looks like Brown is free to go back to Baltimore. He can swim in the cesspool he helped build.
http://www.pennlive.com/politics/index.ssf/2015/06/senate_does_not_confirm_marcus.html#incart_m-rpt-2
Delaware has something Texans want, permit-less open carry.
I’m often surprised these days to see where no-permit OC is legal. Seems like in some of those areas no one does it tho, which I sometimes suspect is in fact the only reason that it hasn’t been banned there.
>> I’m often surprised these days to see where no-permit OC is legal.
It actually becomes rather obvious when you consider the history of gun control in this country.
To remind, historically, concealed carry was illegal almost everywhere by late 18th century, because it was seen as something that no law-abiding citizen would need to engage in, and thus basically proof of some criminal intent (similar to how carrying lockpicks is criminalized in many jurisdictions). Self-defense and other lawful activities were assumed to be legitimately covered by open carry, which didn’t have any stigma attached to it. Obviously, no permits existed back then – CC was just banned outright, while OC was simply legal.
After the Civil War and the Reconstruction, though, the former slave-holding states (i.e. today’s conservative strongholds) have found themselves trying to “deal” with their former slaves, now free and hence ostensibly having full citizen rights. Poll taxes and exams were used to suppress the black vote, but they also had guns to contend with, and they solved it by banning OC, as well – much easier to intimidate or lynch a guy who can’t shoot back. The laws themselves didn’t have any racial restrictions, but it was handled in practice by the (all-white, and subservient to the white majority) police selectively enforcing the laws.
Meanwhile, in East Coast states in the late 19th century (starting in NYC and spreading from there), there was a moral panic around an urban crime wave, and the politicians there tried to fix it by cracking down on guns in general (sounds familiar?). Thus OC also came to be regulated or banned outright, but for a different reason.
So, generally speaking, the states that had no-permit OC by early 20th century were those that were 1) not former slave states, and 2) not dominated by a heavily urbanized area (like NYC or Boston) – places like Vermont and Maine in the east, or Oregon and Washington in the west, that were politically liberal (in the contemporary meaning of the word), but not particularly urban. They simply never enacted the laws banning OC.
And after that, gun control simply stopped being a prominent issue for a long time, and the laws remained mostly as is, leading to the present situation where a bunch of seemingly solid blue states like Vermont have gun laws that rival most of the solid red states in the South. In places which have urbanized significantly since then, there’s a growing push towards tighter gun laws (as we’ve seen with enactment of UBC in Oregon and Washington). In places that remain largely rural, it’s much less of an issue because non-urban voters don’t really care about guns.
Delaware is slowly making me hate this place. I have a feeling this will be the only time it’s mentioned in our states only “major” news publication.
Much ado about nothing. This is nothing new that I can see. If you are subject of a protective order, in Texas you must not be in possession of firearms unless you are a peace officer. I’m sure most states are the same way.
Why do police officers get a carveout to this exception? I would think that having a DV restraining order against them would reflect very poorly on their continued employment.
First of all, this proposal has NOTHING, I repeat NOTHING to do with California’s pending GVRO law. The GVRO law is intended to take guns away from crazy people who are a threat of harm to themselves or others. This is instead an extension of Delaware’s DVRO, which is intended to deprive accused abusers of firearms prior to a hearing that is apparently, in Delaware, heard within 10 days. It is a “keep the peace” order, which is why judges are so prone to issuing them on the sworn affidavit of the party (allegedly) abused. Yes, California has a similar program–has in fact had such a program for decades afaik. So have most states. As those states have recognized–indeed as it has been recognized here–a piece of paper from a court will not prevent an abuser from renewing his/her attack, especially in the context of a divorce. And yes, most of the abusers are men, and they have attacked spouses, their own children, other family members, police, lawyers, and judges. We read about those tragedies almost every day.
Will this prevent a jilted lover/ jealous and controlling spouse from exacting permanent revenge? Of course not. Will it reduce the risk? In some states more than others, particularly those with permitting or waiting periods. But yes, it must be recognized that there are thousands of incidents of domestic violence every year, committed with every conceivable weapons.
Do these laws violate due process? They have been repeatedly upheld against constitutional challenge, so no, they do not, any more than arresting someone for a crime and keeping that alleged offender in jail until trial; that person has been deprived of the most precious right, freedom, along with a slew of other rights, all on the sworn affidavit of a police officer or a criminal complaint signed by the DA.
Robert, I challenge you, or anyone else here, to go down to your local women’s shelter and interview the refugees there about the tortures an threats to which they have been subjected, many for years, before the violence became to severe they knew they would die if they did not flee. Then ask yourself, for all those women, many of whom you will find do not have control over the family finances and can’t just saunter down to the gun store and buy protection, what could be done to protect them pending the slow moving wheels of justice?
But that statement establishes as fact that a person is “crazy” without actually establishing it as a fact in a court of law with witnesses, testimony, affidavits, evidence … as well as a chance to rebut all of those elements.
Last time I checked, our several hundred year history of Common Law includes the presumption of innocence until proven guilty. Gun violence restraining orders violate that presumption of innocence. You of all people (you are an attorney) know that and should cringe at the notion of a gun violence restraining order. And before you try to defend such orders under the guise of, “but it is for women’s safety or society’s safety”, you have to tell me why our justice system fully embraces the concept of letting obvious violent attackers free when police obtained evidence illegally … or why our justice system is predicated on the fact that it is better to let 99 guilty offenders free than to imprison 1 innocent person.
Gun violence restraining orders stink to high Heaven. Why? Because they violate our right to face our accusers in a speedy trial … and because they enable, strike that, encourage abuse of innocent gun owners who have harmed no one but had the misfortune to marry an angry, vengeful, spiteful spouse.
Nope, not even close. The GVRO requires proof by testimony and or affidavit for the temporary order that is issued by a judge, and clear and convincing proof in a contested hearing for a “permanent” order. The order involves no loss of individual liberty (i.e. involuntary 72 hour commitment to a locked ward as a 5150 does based upon no more than “reasonable cause” as attested to by a medical professional or LEO without any court hearing), only of 2A rights of possession of firearms.
Hmm, part of my comment disappeared. The GVRO is a civil proceeding which imperils no loss of individual liberty. It is not a criminal proceeding, so no presumption of innocence applies; a GVRO carries no criminal penalty. A temporary GVRO requires actually testimony before the court or by affidavit (if brought by a family member), and a contested hearing must be held within 21 days at which the respondent may cross-examine witnesses, present evidence and be represented by counsel, and his dangerousness to himself or others must be proved by clear and convincing evidence. This all happens a lot quicker than a lot of criminal trials. And as you must know, it is permissible under the express language of the Constitution, and not withstanding the presumption of innocence, to incarcerate an accused criminal prior to trial, subject to a reasonable bail. If you can’t make bail, or are deemed a risk of flight, you may be kept in jail until trial, and that could be many many months.
So am I concerned about GVROs? Not really. They will apply in only a narrow segment of cases, and the consequences are far less catastrophic than a permanent Domestic Violence restraining orders that can last for years and carry criminal penalties if violated–and which are indeed quite common.
As for the practice where a police officer arrests someone for “probable cause” and the justice system holds them in jail until trial, even that is a questionable practice that certainly appears to violate our right to face our accusers in court before government deprives us of liberty … and police often abuse that practice. Having said that, there is a minimal amount of protection involved (for the accused) because a police officer is almost universally a disinterested third party and has no direct stake in the aftermath of arrest and incarceration pending a trial.
On the other hand, a spouse who requests a
firearm confiscation orderdomestic violence restraining order is ALWAYS an interested party who has a HUGE stake in the aftermath of such an order. Therefore, it is fundamentally wrong for the court to order an infringement of someone’s rights when the only testimony comes from someone with something to gain when the court issues the order.Police officers set initial bail. The courts set the actual bail at arraignment. Spouses are indeed interested parties, but an awful lot of DVROs are preceded by multiple domestic violence calls, and are thus documented by 911 calls and police reports, many times with physical evidence of abuse. For example, the DV case against Sheriff Mirikami of San Francisco was documented by bruises on the spouse’s neck and the testimony of a neighbor. I represented a local parish in a case where the husband (who was living a mistress in another county) believed that his wife was having an affair with the priest to whom she poured out her heartache. He used to call her from a pay phone, cocking and uncocking his pistol, and threatening to kill her and the priest, or to commit suicide. Was it unfair that the Court entered an order that he turn in his hardware?
Many abused women “reconcile” with their abuser, and criminal charges are dropped, over and over again, until the injuries are so severe the State steps in. There is a whole psychology to why the abused do this, but that is beyond my knowledge or this post. But it is true that many women fear leaving their SO because the consequences may be fatal–and which is why most women’s shelters are in undisclosed locations, because they are right.
Mark N.
First of all I want to thank you for your thoughtful responses. I am definitely not trying to beat up on you.
I understand what you are saying. And in some cases a temporary firearm confiscation order could seem helpful. Nevertheless, there is way too much opportunity for abuse. All it takes is a spouse and friend to say “he threatened her” for a judge to sign off. Heck, all it takes right now is a statement from a spouse for a judge to enact a restraining order which forces the affected spouse to give up their firearms. I know because this happened to my brother-in-law who, incidentally, never threatened anyone. He simply made the mistake of marrying a psycho. All it took was her word. No marks on her body. No witnesses. No evidence. Nothing more than her accusation. And he immediately had to give up his firearms.
Above and beyond the current state of legal policy, it is fundamentally insulting to our human dignity that a government comes in and confiscates anything from us — whether our life, liberty, or property — for any period of time based on nothing more than an accusation from a single person. This is the problem when we try to use government and the courts to seek a remedy for harm that has not yet happened.
Actually, part of my job for a few years was to go to the local women’s shelter and interview the residents on a periodic basis. And most of my job at that time was representing women in divorce cases, on the condition that domestic violence was involved. The worst instance of physical abuse I heard about during that couple of years was a client whose husband did something (never found out what exactly) that left her with a six-inch scar on her posterior. A month or so after she got her divorce, I saw her with her ex strolling hand-in-hand at the local mall. I know terrible things happen between “intimate partners”, but I am skeptical that it is any more of an “epidemic than the “epidemic” of “school shootings” we are always hearing about. And I understand the purpose and value of TROs, ex parte or otherwise. The devil is in the details in such cases. 10 days sounds like a reasonable length of time, but what happens after the ‘full hearing”? If the “abuser”–oh, wait, that’s the “alleged abuser”, isn’t it? Or is it? Anyway, if the respondent turns out not to be an abuser, does he get his property and ability to exercise his rights back? or does he merely get an opportunity to petition the court again to get his stuff back that the court just found shouldn’t have been taken in the first place? Does he have to buy it back out with an impound fee or some such? Is there a time limit on how long the authorities can hold his stuff? I will concede one point to you–I really should have more details to hand before I go off on one of these proposals. But I remain skeptical of the process in general. As I said before, there is absolutely no downside for a judge who grants such an order that really didn’t need to be granted. There is all kinds of downside for a judge who doesn’t grant an order that, as it turns out, should have been granted. So what is going to be the default outcome of petitions for such an order? On the level of personal self-interest, a judge would be a fool to deny one.
The problem is Ms. Sorenson’s notion of due process. According to Ms. Sorenson and her ilk, if the legislature and governor pass a law which empowers a judge to determine if we can exercise a right, that satisfies “due process” and anything goes. Unfortunately, the courts apparently agree since no one has yet (successfully) overturned infringement of civil rights with existing laws.
“Due process” does not mean a full trial and never has. If the Founders meant “full trial,” they would have said so.
The bottom line to due process is that people are entitled to notice and an opportunity to be heard, sooner rather than later, but not necessarily immediately.
The two problems inherent in due process are, first, when? And second, how much process is due?
Having said that, I oppose Star Chamber proceedings because the “when” means “when we get around to it,” and the “how much” means “not enough.”
I don’t want my gun rights decided by a kangaroo court, or anyone else’s either.
and all that’s is before you take into account the enforcement apparatus that will be brought to bare on the subject of the order. Just another job-security measure for the local SWAT team – and we all know those always work flawlessly when employed.
I’m afraid that you may be correct. When cops come to take someone’s guns, they often come heavy — so they can go home safe at night, of course
Better to focus on drownings and child seats, they’d save more lives. If there is any question the gun-control movement is about taking all guns from the citizens let this be your teacher. These people take an oath to protect the Constitution yet do the opposite which in fact is an act of treason. I bet my life there are few domestic deaths carried out in the manner these politicians convey. Yep, I hate these politicians for they are traitors and should be hung out to dry.
So if there’s a suspicion you’re involved with drugs, they can take your money and property and keep it, and now if there’s a mere accusation that you’re scary they can take your guns.
I’d be happier with the situation IFF the law allowed citizens, on the suspicion a politician was an idiot, to tar and feather said parasite and deposit him/it/her outside the jurisdiction’s limits.
These types of people need to be fired for lieing and trying to change our Constitution witch can’t be changed
That’s the leftist mind for you. “This law doesn’t violate your Constitutional rights because activist judges said so.”