The tyranny of restraining orders

[Tall Man]

A friend of mine recently went through a reasonably amicable divorce (amicable in almost every sense except financial; it is a story for another day.) He is a firearm owner, but this fact did not affect any of the material proceedings of said divorce.

Thinking of his situation recently reminded me of some of the more virtriolic posts seen here and at TFL, vis-a-vis some members' experiences with spouses who harbored ill intent....and acted on these feelings. The concensus of member contributions seemed to be the following:

Married men who happen to own guns are being turned into felons by wives who ask for restraining orders when they file for divorce. Prosecutors interpret restraining orders as criminalizing prior gun ownership. A restraining order turns a law-abiding gun owner into a criminal. It is an example of unconstitutional ex post facto law at its worst.

With respect to divorce and all of its colorful manifistations, I am blessed that I have no base of experience to draw from here. That said, for the sake of my own edification (and I may regret asking this question), can some situations really reach the low point noted in the third paragraph?

TM

"No Bill of Attainder or ex post facto Law shall be passed." -- United States Constitution, Article I, Section 9.

 

[ojibweindian]

Yes.

My ex-wife tried that on me. Fortunately, during the first hearing, the restraining order was thrown out as there was no evidence of violence or violent tendencies on my part.

For those who are going through a divorce; never, ever, ever be around your estranged partner without a witness handy.

 

[BigG]

For a guy with no practical experience in the area, you got a pretty good handle on it. The answer is yes. Damn lawyers...

 

[geekWithA.45]

My understanding is that...

In many jurisdictions, a restraining order is automatically issued in divorce proceedings.

Whether that's the case in your jurisdiction, if you're a gun owner, it's imperative that

A) you have an attorney
B) (s)he's familiar with the Lautenberg amendment, etc
C) (s)he is aware of and is actively protecting your RKBA each step of the way.

If you wind up having to turn your guns over to you attorney for some period of time, (like, the duration of a restraining order) consider it better than not doing so, and getting busted for a Lautenberg violation, and having the state haul them away at some point down the road.

 

[Tall Man]

For a guy with no practical experience in the area, you got a pretty good handle on it.

All I've done here is pay attention to the bad experiences of others.

I am also a voracious reader. Thanks to my reading, I've not been caught flat-footed in many situations (where otherwise I might have been.) It doesn’t give me all the answers, but it lights what is often a dark path ahead.

Thanks for the feedback.

TM

 

[Jonesy9]

happened to a friend of mine in NH. wife claimed he threatened her with gun and took out restarining order. guns confiscated and charges pressed. poor guy has had to deal with this while going through the divorce and being laid off, how he has kept his sanity is beyond me. last I heard things were getting straightened out and charges were being dropped. sad situation.

 

[El Tejon]

Yes, it can and does happen.

So much of happiness in life is picking the right partner. Choose wisely.

 

[ojibweindian]

One thing that kept my ex-wife from repeatedly filing false restraining orders, etcetera, on me was my threat of suing her for any actions by her that led to my being improperly arrested, fined, or whatever.

Also, whenever I had to have any dealings with her in person, I did so in a public place. All phone conversations were recorded. Many times, when picking up or dropping off the kids, I had a private investigator monitoring the whole thing. On those times he wasn't available, I arranged pick-up or drop-off at the police station.

 

[scotjute]

Had my ex's lawyer issue temporary restraining orders on me. Apparently with many attorneys this is almost standard practice to use on their opponents. From what I've experienced, the temporary restraining orders are issued at the drop of a hat without any kind of hearing or reason, etc. other than the woman or her attorney request them. Of course they are only temporary. They would actually have to have some grounds for issuing them permanently. (at least I assume that to be the case?)

 

[scotjute]

Oh the advice about having a neutral third party present during any physical encounters with your ex or potential ex is excellent advice. Otherwise things will break down to a he-said, she-said situation.

 

[TheeBadOne]

The Temp order is granted and is good for 7 days. What it is basicly, is serving notice that you have a court date to go in and tell your side of the story, and your partner their side. The judge will then make his decision about issuing a full (lasting) order, or not. So, go to that hearing, or your partner may win by default!

 

[FPrice]

geekWithA.45...

"In many jurisdictions, a restraining order is automatically issued in divorce proceedings."

Having been divorced twice I would argue with that statement. I cannot see why a restraining order would "automatically" be issued. An RO is, or should be, the result of a problem with violence. Now granted many divorces are much less than friendly but a Court which hands out ROs without a cause should be taken to task for this practise.

 

[Graystar]

A restraining order turns a law-abiding gun owner into a criminal.

Yes. That's what the Emerson case in the 5th Circuit was all about.

It is an example of unconstitutional ex post facto law at its worst.

That isn't correct. The concept of ex post facto law is of passing a new law that prohibits an act, then charging those that previous (and legally) committed the act with a crime.

The law in question already exist.

 

[Jim March]

Oh ya. It happens all right.

http://www.equalccw.com/johnlaws

 

[Tall Man]

It is an example of unconstitutional ex post facto law at its worst.

That isn't correct. The concept of ex post facto law is of passing a new law that prohibits an act, then charging those that previous (and legally) committed the act with a crime.

Technically, Graystar, you are correct. My grammer did not serve the point that I intended to make here: Namely, that the practical effect and/or outcome of a restraining order was that of a de facto, ex post facto law.

TM

 

[greyhound]

use on their opponents

That's what scares me about lawyers. Seems like some see these types of things as a game, a chance to match wits with the other lawyer (opponent).*

These are people's lives they are messing with, not a game. You don't really "win" or "lose".

Maybe automatically filing restraining orders whether or not there is any reason to makes it easier to "win", but it sure isn't the right or proper thing to do.

*(I am sure all lawyers are not like that, I'm just an internet ranter, not an expert! )

 

[Mauserlady]

Having been divorced twice I would argue with that statement. I cannot see why a restraining order would "automatically" be issued.

Don't kow about anywhere else nor if it has changed since my one and only divorce but here in Cali an RO IS automatically ordered if there are kids involved...

My ex and I's divorce was completely friendly (heck we sat on the front porch gong over everything together) but there was still that RO in effect until the divorce was granted. It then becomes null and void...

 

[Amish_Bill]

A friend of mine went through a divorce recently. I knew about this problem so I alerted him to it.

What do you know.... the restraining order verbage was part of the boilerplate divorce papers! (OK, so it was a mutual restraining order, but it works out hte same) He thanked me for pointing this out and made sure that wording was removed quickly...

 

[p35]

Look at what the restraining order really says- when I did divorces, the initial restraining order usually prohibited things like emptying the bank accounts, changing names on insurance policies, or selling the car. It has to be a domestic violence restraining order before Lautenberg comes into effect, and has to be issued after a hearing. Of course, judges handed those out like tissue paper, but that's another story...

 

[TheeBadOne]

p35 good point

There are actually 2 types of restraining orders. Civil ones, like the lawyers arrange through family court don't count (as in prohibbing firearm ownership).
Those served through the Sheriff's Dept are the ones that count.

 

[scotjute]

But what if you try to purchase a firearm during this period. Isn't there a question on the form that asks if you are currently under any restraining orders?