Guns, Firearms, Second Amendment Rights Versus Protection from Abuse Laws
Guns, Firearms, Second Amendment Rights Versus Protection from Abuse Laws
* Opinion Only (Based on personal observation/research. Educational only.)*
** I, personally, am in favor of more gun control experimentation on the state level in the United States to see if it would cut down on deaths and increase safety. On the other hand, I am also in favor of laws that work, laws that are legal, and law enforcement and the courts following laws. Therefore, this article is an informative look at problems I see with Protection from Abuse (domestic restraining orders) being used as a gun control mechanism; therefore, I imagine that gun rights advocates may appreciate this article more than others.
Domestic Violence is a horrific problem in the United States, and almost all significant physical harm related to this violence is experienced by women. Stopping this violence is an important government interest. The U.S. Supreme Court has ruled that the second amendment right to bear arms can be abridged to protect important government interests. Therefore, it is constitutional to deprive people of their second amendment right under certain circumstances. However, there are some legal problems in the deprivation of gun rights under the state civil restraining order system, and the related federal law on domestic violence and gun confiscation is vague at best.
II. Legal Problems with Civil Restraining Orders and Gun Rights
Taking Pennsylvania as an example because Pennsylvania had the first domestic violence civil restraining order in United States and has the oldest, and one of the most powerful, anti-domestic violence statewide lobbies, I will outline some practical problems with gun control via domestic violence civil restraining orders.
PRACTICAL LEGAL PROBLEMS
1) Always taking the guns, immediately vs. law
First of all, under the law, Pennsylvania judges do not have to remove a defendant’s guns when a plaintiff is granted a protection from abuse order; but, the judges do. This fact is a combination of many different factors. For instance, the computer program used to generate the orders was designed by the anti-domestic violence lobby, and the choices on the system encourage the users toward confiscating weapons. Second, the court system favors simplicity, and it is simpler to take the firearms. That is not to say that some weapons are not removed as a result of careful judicial consideration, but the computer system provides a nudge in the removal direction, and judges often are not the ones writing the orders. Third, PFA temporary orders are often prepared by the county Protection from Abuse office staff who helps the Plaintiffs. Those court staff personnel tend not to be neutral, unbiased, professional helpers, but Plaintiff-centered supporters. Therefore, PFA office staff check “remove weapons” if the Plaintiff states that the Defendant owns any weapons, regardless of the actual accusations or relevance of the gun ownership.
Importantly, judges grant PFAs as part of a mass production process, sometimes without seeing the Plaintiff. Even if the judge in a county does have the Plaintiff in front of him or her for a quick one-sided PFA “hearing,” and even if it is one of the rare judges who dictates what is in the order, that judge is most likely going confiscate all weapons to play it safe rather than carefully study whether weapons were involved in the allegations and question the Plaintiff as the lawmakers appear to have intended as represented in the statute (and the Superior Court has stated trial court judges should do). Regardless, whether the lack of rights and due process at this stage is good or bad, the removal of weapons is a given.
Problem One: After a judge orders weapons to be removed from a defendant based on Plaintiff's statement of the facts (an “ex-parte” hearing); the defendant is, under the law (using Pennsylvania law as an example), supposed to be given a variety of options as to how to surrender control of those weapons within twenty-four hours. The defendant can entrust those weapons to a responsible friend willing to sign for them, or place them with a licensed firearms dealer rather than turn them over to the police. However, a number of law enforcement agencies in Pennsylvania ignore the law and immediately demand the surrender of weapons upon serving the first temporary protection from abuse order. Law enforcement, habitually, does not allow gun owners the twenty-four hours to arrange a different option. Even though the paper order handed to the defendant literally states that he or she has options, the police (including sheriffs under that title) often do not give the defendant a choice. People may argue this is a good practice and saves lives—but, it is not the law, and it appears local authorities intentionally conspire to break this law.
Likewise, the Protection from Abuse law states that the local law enforcement facilitate the defendant's choice to turn their firearms over to a trusted friend by having the gun owner and friend come into the office and fill out the appropriate forms. At that point, law enforcement is supposed to run appropriate background checks on the friend and allow the weapons to be directly handed off between friends without ever coming into possession of the police. Unfortunately, many law enforcement offices in charge of the PFA weapon confiscation have not set up their process appropriately, so it is impossible to comply with the law and arrange a direct hand off from a gun owner to a friend. For instance, where a gun store owner can run a background check in twenty minutes, a Sheriff’s office will most likely, a couple of days after receiving the paperwork, send the information to the State Police, and the whole check can take one to two weeks. In the meantime, the police seize the weapons or threaten the gun owner for not turning the guns over. (In the statute, the Defendant is supposed to tell the Court at a final PFA hearing when an order is entered against him or her which includes confiscating guns which option the Defendant will comply with within 24 hours, or show good cause why the Defendant should be granted more time. However, this Court interaction rarely happens as weapons are always taken at the earlier, temporary PFA stage.) So what if the government takes the weapons for a few weeks and then they are handed over to a friend? First of all, it is not always that easy for the Defendant in practice as the Sheriff's office might not even call when they finally get the background check returned. Bureaucracy can be very unfriendly.
Second, the point is that the law provides certain protections for gun owners even as it allows the government to intrude on gun ownership rights, yet those entrusted with enforcing the law consistently do not follow the law, confuse the gun owner, obfuscate the process, and place unnecessary hurdles into the Defendant's path-- more on this below. (It is possible than some of this poor execution by law enforcement is because of the inevitable Us versus Them mentality endemic to law enforcement which is even less well suited to enforcing civil orders where a person has not been found guilty of anything.)
Practical Problem 2: The Return of Weapons: the System's Continued Disdain for the Defendants
When a PFA Order expires or is dismissed, the Defendant has a right to get her weapons back. Sadly, the professional government offices maintained to help the public with PFAs only help the Plaintiffs. Where the court system could set up a simple procedure to make things run smoothly, most judicial systems only put enough effort into the process to make it confusing. When a defendant wants her weapons back, she is left to blunder about the courthouse being told by clerks that they cannot give legal advice and left to figure out a byzantine procedure of how to get one's weapons back. In Pennsylvania, the return of weapons procedure, like many things, varies widely by judicial district. In many of those districts, no set of instructions is posted on the county website nor handed out that tells someone what the procedure is. Some defendants become so discouraged that they waste over a thousand dollars on an attorney to get their weapons back where it should be a simple, transparent procedure.
For instance, the PFA statute in Pennsylvania states that the order should state that the weapons are to be returned after the end of the order, but Courts rarely (never to my knowledge) put this language in any of the PFA orders. (It appears the Domestic Lobby Group that set up the computer system to generate the orders did not favor option.) Rather, defendants have to blunder into the courthouse and try to figure out how to get their weapons back. County sheriffs typically send them to see a judge to get an order stating they can have their weapons back. This option is legally spurious. The PFA order is over; it has expired or been dismissed. There is no reason the Sheriff should require another court order except that they enjoy having court order immunity. The Sheriff could easily use the local system to verify the PFA order is no longer in effect.
Of course, as the case is over, legally, arguably the Court does not actually have jurisdiction to enter these orders, but no one appears concerned about that technicality. Most judges do not let people walk in and spontaneously ask for Court orders. Defendants often have to take time off work, again, to come back another day when it is convenient to the Court. And then, once a person gets a court order and takes it to the Sheriff’s office and expects to be handed guns, they are instead sent away again while the Sheriff starts the slow process of outsourcing to the State Police the background check on the person to make certain that there are no other legal reasons the person should not have weapons, apart from the PFA. The ex-defendant will then have to take more time off of work to come back again.
A lot of time and resources are spent trying to help plaintiffs in the PFA system. With the rare exceptions, no resources are expended to make the system run smoothly for defendants even though, technically, they are citizens, tax-payers, and, often, average human beings.
Next we will look at what happens when a defendant seeks to have a PFA order modified to allow his or her weapon to be returned while there is a PFA order still in effect— a modification that is allowed under state law.
(SEE PART TWO)
Also, in part two, there will be a discussion of the impact of the federal gun law, the questionIable law enforcement search policies for gun confiscation, and a look at some larger legal issues.