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Old October 20, 2017, 05:49 PM   #1
Suthern1
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Civil Protective Orders Due Process and the 2nd

Happened by the forum with a search resulting with Spats McGee’s Primer on Civil Rights Litigation and Qualified Immunity.

Curious to find out if anyone else has ever experienced or considered the revocation of Right to Keep and Bear Arms while subject to a Civil Family Violence Protective Order.

And the "due process" Clause as applied to those orders.

My experience is that my Right to K&BA was taken from me for over 4 years when the Appellate Court ruled my due process was violated and that the order was Void.

Conversation, thoughts?
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Old October 20, 2017, 07:17 PM   #2
Ghost1958
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Quote:
Originally Posted by Suthern1 View Post
Happened by the forum with a search resulting with Spats McGee’s Primer on Civil Rights Litigation and Qualified Immunity.

Curious to find out if anyone else has ever experienced or considered the revocation of Right to Keep and Bear Arms while subject to a Civil Family Violence Protective Order.

And the "due process" Clause as applied to those orders.

My experience is that my Right to K&BA was taken from me for over 4 years when the Appellate Court ruled my due process was violated and that the order was Void.

Conversation, thoughts?
More infringement by gov against a basic human right.
We have that same stupid law in KY.

Gov and courts will take any right they can get by with.

Never experienced it but have had friends who did.
Law needs to be repealed like all other gun related laws.
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Old October 20, 2017, 07:50 PM   #3
BarryLee
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Not a legal expert, but a pretty good student of human nature and I have seen plenty of individuals abuse the legal system to stick it to a former spouse/partner. I had a friend that went through a divorce and while things were being contested he was forced to remove all firearms from his home to obtain visitation rights. There had been no instance or even suggestions of violence, but the court approved this anyway. Funny after the divorce was final he got his guns back and took his kids to the range.
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Old October 21, 2017, 07:10 AM   #4
TDL
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Here is the problem:

A lot of people do want very low thresholds for obtaining a restraining order. This even if we know that a lot, the large majority, are fraudulent tactics in divorces or breakups, because often the person who might need one is most at risk, and insisting on normal criminal level due process would make it impossible for many people who really need the protection.

Even if 80% of orders are fraudulent family law legal tactics or maneuvers, there are probably a lot of rational people who would support continued low thresholds to obtain such an order since the harm is low and the 20% that are legitimate involve some of the most at risk, and due to finances, low access to legal protection, victims in our society.

If we narrowly limit the harm to the subject of an restraining order, say to a) physically staying away from the person who requested the order;b) not communicating directly with them; then the harm is low and the rationale for making the orders easy to obtain makes sense.

The problem arises when we start expanding the harm to the subject of the order. EG: a) are the orders public, can a future dating partner see them? can an employer see them like they can see an arrest record? b) can a law enforcement officer conducting an unrelated stop see that order? c) and are other rights, such as those normally curtailed only with full criminal level due process, such as your Second Amendment rights also affected?

If we start expanding effect on the subject of the order, we actually incentivize even more instances of fraudulent restraining orders, because they make it even more beneficial for one party to file falsely as a effective tactic to give leverage in a divorce. It is a feedback loop: more harm to the subject of an order, more benefit in fraudulently accusing them

This is rarely if ever discussed in popular media coverage of restraining orders and the issue adding penalty/constraint to the subject. The two aspects should move together: If there is going to be more harm to the subject of the order, then probative burdens to obtain one should increase.
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Old October 21, 2017, 07:57 AM   #5
Spats McGee
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I've been a civil rights litigator, a divorce lawyer and am currently a prosecutor. So I've dealt with this issue from several different angles. If we're going to discuss this, let me point out a few things:

1. Everyone involved needs to keep in mind that stuff you post on the internet is not confidential.
2. Here in L&CR, we focus on specifics. If you want to talk about the law in one particular state, we need to know which state we're talking about.
3. We don't give legal advice here. See my signature line.
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Old October 21, 2017, 05:23 PM   #6
Suthern1
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Im not going to say or post anything that is not a part of public record already available on the internet.
The State is Texas in my case but the problem is a national one as these "PO" laws are similar (enough) everywhere that national is the level I would address though my comments are definitely about Texas Law.
No legal advice given or asked for just a discussion of opinions. That being said there are some empirical facts which the discussion can be founded upon.

Family Violence Protection Orders are considered "quasi-criminal".
Meaning they are a civil proceeding with potentially criminal consequences.

FVPO have reciprocity full faith and credit in all 50 states.
Meaning a Texas Order is observed and enforced everywhere else.

FVPO come with an automatic revocation of second amendment rights the same as felony convictions. And possession of a firearm by a person subject to A FVPO Is a:
FELONY UNDER FEDERAL LAW PUNISHABLE BY UP TO TEN YEARS IN PRISON
AND/OR A $250,000 FINE. 18 U.S.c. § 924.

Protection Orders are Public Record and can be seen by anyone on the internet. Employers, dating relations etcetera... In Texas they are part of a Database viewed by all law enforcement by running your license.

Protection Orders (I would dare to assume) are in 90% + cases prosecuted by the States Criminal District Attorney and the respondent is denied counsel because it is a civil proceeding. Though there is case law pointing to the "quasi criminal" aspect which requires appointed counsel it is ignored.

A states attorney is required to seek justice rather than conviction (hmm?)

Temp Protection Orders are issued Ex Parte meaning only hearing from one side. At which time your guns are taken.

Protective orders are Granted based upon a judges ruling and jury trial is not an option.

OPINION Justice is never served when a prosecutors has bully pull pit and the accused is often sacrificed on the alter of pop culture which says men are mean to women after a 2 minute presentation.
(There is a cartoon where the judge is handing the witness a box of tissues marked "protective orders" as the caption reads. "Your honor he kept hitting my foot with his testicles over and over")

That cartoon is the summation of PO procedures in my opinion and
The harm done to an accused from false allegations of violence are profound.

SO... as TDL who made many great observations, so aptly stated "...we actually incentivize even more instances of fraudulent restraining orders, because they make it even more beneficial for one party to file falsely as a effective tactic to give leverage in a divorce. It is a feedback loop: more harm to the subject of an order, more benefit in fraudulently accusing them. AND This is rarely if ever discussed in popular media coverage of restraining orders and the issue adding penalty/constraint to the subject.


By fighting this lack of due process I have not only challenged and won against my false accuser but against the States Prosecutors who bend and manipulate the presentation of the law and evidence to there advantage in effort to gain convictions. (of course I can speak only of those I have had to deal with) Others that are victims of the lack of process can too.
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Old October 21, 2017, 05:35 PM   #7
Frank Ettin
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And this is getting off track for this Forum.
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