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Guns, Firearms, Second Amendment Rights Versus Protection from Abuse Laws (Part Two)

Updated on September 28, 2014

Gun Rights End Runs in Restraining Orders

Guns, Firearms, Second Amendment Rights Versus Protection from Abuse Laws

(Part Two)

This essay is the second part of an opinion/education piece. Please go back and read part one first if you have not already done so. Okay? Let's go--

Problem 3: Getting Your Gun Back

Preface: As covered earlier, domestic violence is a terrible problem, a problem so horrific that a draconian civil system has been put into place to wage war against the domestic violence. The civil restraining order system with its factory speed orders and low burden of proof makes it both easier for people who deserve protection orders to get them (hurray) and, unfortunately, easier for the other people to take advantage of the system. Since enough humans in modern day America appear willing to take advantage of any government program, sadly many defendants are unfairly evicted, unfairly lose custody rights, and unfairly lose second amendment rights without a full fair and just review. The system is heavily biased in favor of the Plaintiffs (God bless the deserving ones and curse the liars), and this systematic bias is evident from the government help offices through the sheriff's office. There is a reason that Miranda rights and other constitutional protections are burdensome in the criminal justice system; they need to be so to prevent injustice. However, the war on domestic violence has led to a civil end run around these safeguards in the U.S. system of justice. As many police officers and judges have pointed out, there is no trespass, stalking, harassment, or threat that could not be dealt with under criminal law, so the civil system is redundant. It was built for expediency; it uses lower standards of proof and moves much faster— society choosing to sacrifice justice for speed to combat a widespread problem.

As explained in Part One, Pennsylvania is used as an example because it was the first state to come out with a domestic violence restraining order (Protection from Abuse Order) in the United States, and has one of the oldest, and one of the most influential, domestic violence lobbies, a lobby which has helped write the modern law and get it passed.

Problem: Getting Your Gun Back—Let us say for the sake of argument that a Protection from Abuse order was wrongfully entered against a woman, let's call her Sue. Now, it was wrongful in the sense that Bill, her boyfriend, lied about her having threatened him. But, even though judges tend to be biased against male abuse accusers, because it was almost lunch time, this judge defaulted to her quick option of playing it safe in all PFAs (one still wonders about the judge who entered the temporary order against David Letterman based on a woman saying he was stalking her through the television). Sue's judge granted the final protection order after a hearing. Bill was a good liar. Many protection orders are he said/she said evidentiary hearings and, despite the fact that our best U.S. psychology scientists say that people are inaccurate liar detectors, judges continue to "weigh credibility" with a false sense of confidence-- seemingly oblivious to many subconscious prejudices.

In any case, let us say Sue had her hunting rifle taken away via a three year protection from abuse order. Sue did not appeal the order because she did not have the thousands of dollars necessary to do so through an attorney. Additionally, the higher courts which review trial courts refuse to overturn trial courts' “credibility determinations,” so any decision which rests on the trial court’s lie detecting guess would be pointless to challenge.

However, Sue is in luck because after one year, Bill chooses to move to Alaska! The Pennsylvania Protection law allows a defendant to petition to have the PFA order modified to have her weapons returned PRIOR to the expiration of the PFA order. Sue figures that since she has not violated the order for a year, and since Bill has moved four thousand miles away, the Court will allow her to have her weapons back. After all, Sue was a model citizen and an avid hunter before the order was entered.

Sue has no idea how to get a modification, and after spending an hour on the phone, some friendly lady in the judge’s office tells her she has to file a petition. Sue has some trouble finding the form to file to modify the order because the local government PFA office is not set up to have any modification forms or give any help of any sort to defendants. And then, the Prothonotary (file keeper where one files petitions) is surprised to have a petition filed at his counter and tries not to accept the petition because normally all PFA petitions and orders go from the PFA office to the court to the Prothonotary (not according to the state legal rules, but the way the county works). Finally, after a whole day off work spent at the county courthouse and in the law library, Sue manages to get the petition filed and sent to the judge. The judge is surprised to receive the petition because the system is not set up to do anything for the defendants, and he has never seen a petition to modify by a self-represented defendant before. However, the judge has just eaten lunch and is in a good mood, so the judge sets a hearing date. Sue takes another day off of work and comes to the hearing. Luckily, a friend of Sue’s explained to Sue about how she would have to prove she had served the defendant, so Sue convinces the judge she did so. Bill, now in Alaska, has not shown up for the hearing. Sue testifies that she is a safe and sane member of society and that Bill has moved far, far away. Luckily, she brought a witness, her pastor, to vouch for her and the fact that Bill moved away. The judge, for the first time in her career, grants the petition to return the weapons while the PFA order is still in effect.

The problem is that when the Sheriff’s office receives the order, they outsource the return of weapons check to the state police, who raise the red flag that this person has an active PFA against her. The Sheriff’s office has a policy that they will not return weapons when this situation exists. Sue is dumbfounded. Her rifle was taken away by the state judge, and that state judge ordered that it be returned to her. The problem is the federal law.

Problem Four: A Vague Federal Law

The Federal law (18 U.S.C. § 922[g][1-9], in the applicable section, states that a person shall not possess firearms if :

"a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child;"

So, the question here is what is a "credible threat?" If a judge issues a PFA Order after a hearing pursuant to a preponderance of the evidence standard, does that automatically mean the judge found the person to be a "credible threat?" Most domestic violence advocates would argue that it does. A preponderance of the evidence can be equated to 51%, so it is a low standard. Higher courts would probably uphold an abuse order being entered as de facto proof of "a credible threat." Therefore, Sue is out of luck. Because even though the state PFA order has been modified to allow her to have her firearms back, an order does still exist which restrains her from harassing, etc., and, therefore, the federal law would, arguably, back up the Sheriff deciding not to return the weapons.

Possible Trouble: How about if in the modification order, the judge explicitly found that Sue was no longer a credible threat to Bill? Then, arguably, Sue should get her weapons back, but it is doubtful the Sheriff would see it that way. Sue would then need considerable money to hire an attorney to successfully sue to get her weapons back,

Real Trouble: If we pursue this line of reasoning further, more trouble emerges! The majority of PFA orders in Pennsylvania are entered by agreement! When the defendant shows up, someone (domestic violence attorney/court staff, etc.) will usually help (some might say pressure) the defendant to agree to an order. Additionally, the state offers a monetary incentive, $100.00 to agree to an order rather than having a hearing. This monetary fact is pointed out to the defendant among other reasons for agreeing (and, the downsides to having an order are usually skipped over lightly).

Now, when PFA orders are entered by agreement, they are done so without a hearing and without any factual finding! Therefore, the federal gun law does not apply to these orders except to the extent that the agreement explicitly orders that guns be removed. If the state court does not order guns to be surrendered or later modifies the order to allow the defendant to be allowed to bear firearms, then the federal law would not bar the return of weapons. Therefore, if Sue had agreed to the PFA order rather than fought Bill, she would have her guns back now. Well, legally, she should have her guns back if it was an agreed upon order and the state court modified the order for her to get the guns back after Bill moved to Alaska, but, again, many Sheriff's departments in Pennsylvania might simply refuse to return the guns based on an overly simplistic, and incorrect, interpretation of the federal law.

Extra Hoops: Most people try to get their firearms returned after the PFA final order has expired or after a temporary order is dismissed without a final order. Sadly, most people have to take multiple days off work and flounder around just to get their weapons back. The majority of counties in Pennsylvania require people to get a court order to have their weapons returned. This requirement is ridiculous. The law clearly states that any order taking firearms away is to state that people are to have their weapons returned upon the expiration of the order or when the matter is dismissed. Courts in Pennsylvania routinely ignore the law and do not put this automatic return of weapons in their orders. Jurisdictions (mostly counties) inside the state do not even have any uniformity in what requirements they require. The local judges and sheriffs have made up extra hurdles in contradiction to the law. (Whether these extra hurdles are created through ignorance, incompetence, good intentions, or intentional conspiracies is only known by the locals.)

It is worth noting that in Pennsylvania the anti-domestic violence lobby created the computer system which all courts use to create PFA orders, and the computer system itself is rumored to subtly cue the orders to be more anti-defendant. (I have not seen the system myself, but those who have report that an automatic pop up section to return weapons is not built in even though that is what the law requires while many other pro-Plaintiff provisions do come up by default.)

Problem Five. The 4th Amendment. Search and Seizure. Ignored.

Illegal search and seizure is an ancillary constitutional violation to my main focus, so I will only briefly comment on this matter. Under Protection from Abuse orders, a defendant is supposed to relinquish his or her firearms. Law Enforcement is only supposed to “seize” weapons upon arrest for violation of an order. The law clearly states that the defendant gets to choose which option of relinquishment to use when being ordered to surrender a weapon. However, at times, law enforcement is proactive and likes to search. The legal problem is that the police do not have a search warrant when they enter houses upon serving PFAs and, without permission, some search. The PFA Act itself states that it does not authorize warrantless searches apart from seizure during arrest or seizure of weapons related to an actual violation-- which is good because it would be unconstitutional for the PA law to say otherwise! The problem of law enforcement entering residences to search for PFA firearms without warrants does occur. When one such case made itself up to Pennsylvania’s Superior Court, the judges dodged the opportunity to rule and create a bright-line rule to stop these violations, and instead ruled on a narrow, procedural technicality.

Larger Problems: The U.S. Supreme Court has not ruled on whether it is constitutional to confiscate weapons based on the extremely low burden of burden of proof one must meet to get a civil restraining order. Protection from Abuse orders in Pennsylvania can be gained by a preponderance of the evidence, which is the lowest of all legal standards. Essentially, it means if a judge is 51% certain a person deserves a protection order, the judge should grant one. Judges lean toward protection and conservative safety rulings, so the 51% may even be less than that in practice. The Supreme Court has directly opinioned that a person's right to bear arms can be taken away for a criminal violation or mental illness, but those have higher legal standards that have to be met than a protection from abuse order.

Abridging one's constitutional rights demands a legal weighing of government interests against individual rights, and the standard being used to safeguard incorrect decisions is an important factor. For instance, in another civil area, mental health, civil involuntary commitments which result in a loss of gun rights use a higher civil legal standard and require specific proof that someone is either an extremely serious threat involving threat of death or dismemberment to themselves or others. If the federal courts were to address the issue fairly of whether second amendment rights are being unconstitutionally abridged under the PFA standard, then they might take into account the low legal standard; and, might even consider the reality of the mass production of civil abuse orders, the ex-parte hearings, the consistent percentage of people abusing the system, and the due process short cuts many judges utilize. Additionally, in the balance test would be the consideration that states are continually extending the maximum time of civil restraining order and making renewals easier. In this politicized arena, it is difficult to get a fair legal analysis.

Last Thoughts

Not only has there been a stealth end run around the second amendment rights in the realm of domestic violence laws and enforcement rather than a transparent debate and proper due process procedures, but other constitutional rights are beginning to be sacrificed in a similar manner. When Pennsylvania extended PFAs to three years, a number of Plaintiff have taken advantage of the system to get free, long-term custody orders in the quick, mass production system, infringing upon custodial rights without proper custody hearings (sometimes children do not see one of their parents at all simply because the other parent gets a protection order that has nothing to do with the children but contains a tough custody provision). The safeguard against losing access to one’s children is supposed to be that Defendants can go into custody court, but it is not easy to fix unfair orders when custody cases can cost $300.00 just to file and custody attorneys routinely demand $5000.00 retainers. Even judges get confused about how PFA orders are supposed to interact with custody orders.

Domestic violence is a terrible problem in our country but rather than fashion fair and just laws with due process protections, a number of constitutional rights have been sacrificed in the war against domestic violence. In the long run, treating domestic violence like a war in the court system has lead to the sacrifice of truth, and the end runs good-intentioned people routinely make around important constitutional rights and protections are not good for the men or the women or the children of this country.


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      4 years ago

      Very well stated. This is the norm in all states and left to the lower courts and counties regardless of what another judge may rule. In N.C. a private citizen has a better chance by going to the Supreme Court of the State and have the order to return their firearms bypassing the lower courts and appeals all together.


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