Restraining order question....

[Adam_MA]

I have a question... A friend of mine had a restraining order issued by the court against her ex-husband, who had in his possession a pistol that he was unlicensed to own. He admitted to the judge that he owned the pistol and gave it to a friend to hold before the court date. He was issued the restraining order and ordered to turn in the gun. He didn't.. subsequently my friend's attorney contacted the friend about the gun and he ended up taking it and turning it in to the police, 5 months after the order was issued. Not before the ex-husband lied to the police on a couple of occasions telling them he no longer owned it.

My question is... Now that the gun is turned in, were there any laws that were broken, and if there were... what would the result of those be?

Thanks

 

[Len-2A Training]

Where to begin?

Was this person in MA? I can't answer for anywhere else, but MA as each state is different.

In MA, when served a 209A:
- Must turn over any/all firearms, ammo, licenses for same IMMEDIATELY to police serving the notice.
- Must also turn over to police at scene of serving the notice, any and all keys to the residence of party who had 209A issued.
- Can not re-enter house or take any clothes, personal effects, etc. from home. If served at the home, party MUST leave instantly or MUST be arrested (no option for LE to use discretion).

Failure to do any of the above are crimes punishable by jail sentences. Check MGLs for Ch. 209A to get specific details.

If gun was already in possession of another person when 209A was served, police CAN retrieve it from 3rd party legally, at least if the gun was in MA. Not sure "what if" gun is in possession of person outside MA.

Now, since person didn't have LTC, he was facing a 5-10 year felony for possessing the gun without LTC, regardless of 209A. I'd say that his admission would screw him much worse than the 209A will. But IANAL.

If I were him, I'd be getting a good attorney to cover the potential criminal actions for the above issues, post-haste.

 

[Lynne]

INAL either, however, in order to be charged with possession of a firearm, even if he admitted having it, doesn't he still need to be in possession of it in order to be charged?

Oooh Jesse, could you chime in on this one?

 

[Len-2A Training]

Sorry, we'll have to wait a while for Jesse to give his opinions.

Jesse was in FL when I last talked with him this weekend and we lost connection (he was making a long trip thru no-man's land in FL) and haven't been able to reconnect since.

Not sure when he's back home. Hopefully, he'll pickup on this thread and share some legal expertise.

Lynne, I probably should have used the term "own" instead of possessing. It was this phrase in OP that I think makes him "legal toast"!

"He admitted to the judge that he owned the pistol and gave it to a friend to hold before the court date."

He just admitted "illegal ownership" without LTC (crime 1), admitted not turning it over when 209A was issued (crime 2) and involving a third party in holding it when he knew he could not possess it legally (crime 3 plus friend could be prosecuted as well).

If this was somewhere in Middlesex Co., DA Martha Coakley (tough on guns) who is running for AG (and a shoe-in) will persecute this guy to the end of the earth . . . it will earn her thousands of votes!

 

[Nickle]

He admitted to the judge that he owned the pistol and gave it to a friend to hold before the court date.

He was issued the restraining order and ordered to turn in the gun. He didn't..

Not before the ex-husband lied to the police on a couple of occasions telling them he no longer owned it.

There's your three offenses. Add perjury, if he was under oath when he told his story to the judge.

THe big questions are: does the appropriate DA wants to prosecute, and what would the penalties be.

Providing false information to an LEO or the court is a definite offense.

 

[Adam_MA]

Any word from Jesse yet?

Adam

 

[Len-2A Training]

Adam,

Yes and no. I got some Email from Jesse late Saturday night. I asked where he was in my reply but haven't heard back from him. He said that he is going to call me sometime today, so I'll try to remember to ask him to check in here . . . but I might forget by then.

 

[Adam_MA]

Thanks Len!

Adam

 

[Adam_MA]

Just want to bump this one...

Adam

 

[Rob Boudrie]

Bogosity

I wonder if Dave Letterman has any guns he needs to surrender:


http://www.cnn.com/2005/SHOWBIZ/TV/12/21/people.letterman.restraining.ap/index.html

 

[Adam_MA]

WOW!
That sounds like a BIG pile of steaming horse shit!

Adam

 

[SnakeEye]

Re: Bogosity

I wonder if Dave Letterman has any guns he needs to surrender:


http://www.cnn.com/2005/SHOWBIZ/TV/12/21/people.letterman.restraining.ap/index.html

The law doesnt apply to the wealthy

 

[mark056]

Whoa....some nut case was allowed to file a restraining order. (this presupposes that the facts were reported accurately) I suppose that she'll want to put a lien on his property next, then initiate a lawsuit.

Hopefully the restraining order will be vacated or rescinded or whatever they to them out in The Land of Enchanment.

This would be a great way to wreak havoc on a personal enemy if one knew that the person owned guns. I know it is used a lot in domestic situations and frequently is abused as it becomes a tool of vindication, but what is to keep anyone from filing a restraining order against any other person ?

Mark

 

[TonyD]

...what is to keep anyone from filing a restraining order against any other person ?

Mark

Nothing. They are very much abused and very often filed automatically during a divorce. Luckily, not every state in the Union confinscates an individual's firearms. You all are so lucky to live in the state that declared freedom form tyranny. [roll]

 

[RKG]

One doesn't "file a restraining order." One files an application for a restraining order, which is issued, if at all, by a judge after making findings required by the statute.

 

[mark056]

"one doesn't file a restraining order"

Well...its a good thing that one doesn't file a restraining order, but rather makes an application. I was just using jargon that I hear in my place of employment. Imprecise language is something that I shall endeavor to avoid in the future. I can only surmise that I have been hanging around with the cops too much. [shock]

Thank you for the clarification and correction.

Regards,

Mark

 

[RKG]

I wasn't intending to be language picky (though in hindsight it might have sounded like that); I just wanted to clarify that obtaining a restraining order against a defendant is not something that a plaintiff can do unilaterally on his or her own.

 

[Rob Boudrie]

RO

I wasn't intending to be language picky (though in hindsight it might have sounded like that); I just wanted to clarify that obtaining a restraining order against a defendant is not something that a plaintiff can do unilaterally on his or her own.

For all practical purposes it is . The applicant gets 24 hour service; does not have to pay any legal fees; has assistance available from government employees to walk them through the process; and the applicant with a poorly prepared case and no attorney is the statistical odds favorite even when going up against $300/hour defense counsel.

 

[Len-2A Training]

One doesn't "file a restraining order." One files an application for a restraining order, which is issued, if at all, by a judge after making findings required by the statute.

NOT TRUE!

An Emergency Restraining Order is issued "ex parte" (without hearing the other side) immediately and is effective for up to 10 days. The judge does this automatically! No questions asked.

A hearing is scheduled within those 10 days to hear both sides. In the vast majority of cases, the judge will let the order stand for 1 year regardless of real merits.

MANY chiefs that I know will NOT issue a LTC to anyone that has had a restraining order issued against them, even if it was vacated and had no validity. They play the CYA game under "suitable person".

So a person is screwed potentially forever by the act of taking out a restraining order in a divorce action (where no harm/violence is threatened). I even know someone where his tenant (same building) took out a restraining order on the landlord (the tenant wasn't paying rent on time). This person was a co-worker at DEC, a shooter and also in LE . . . his guns and LTC were taken from him.

 

[Skald]

After reading the horror stories makes one think about marrying someone.

I read the article about Letterman and the fact that the judge ruled in favor of it asks one of two questions:

Is he that *censored* stupid

or

Trying to show that judges may be getting stupid in blindly filling out restraining orders when its obvious not for protection but revenge?

 

[M1911]

After reading the horror stories makes one think about marrying someone.

You don't have to be married to have a restraining order filed against you. You don't have to be living with someone or even dating them to have a restraining order filed against you.

 

[TonyD]

One doesn't "file a restraining order." One files an application for a restraining order, which is issued, if at all, by a judge after making findings required by the statute.

I guess that would be news to my ex-wife who was a victims advocate and had temporsry restraining orders 'filed' every day activated by the clerk of courts until the judge reviewed on whether to make them permanent or not.

 

[RKG]

The fact that the hearings are ex parte in the first instance does not negate my statement; neither does the fact that some judges don't do their job very well. And, if you follow the SJC advance sheets, you'll see that the appellate courts are exercising an influence toward fixing these problems.

That said, the statute is poorly drafted, poorly administered, and doubtless represents a political view that few (including me) would subscribe to. My only point was that a restraining order, unlike some other things, is not something that a person can do unilaterally.

I am unaware that "Clerk/Magistrates" in Massachusetts can issue temporary restraining orders. Indeed, I've had enough motion sessions interrupted so that I judge can hear one of these (usuallly dumb) things, that I'm surprised to learn that. And, in the process, I've seen a lot of judges (all Superior Court, I grant you) decline to issue ex parte restraining orders, either because on the face of the papers the statutory requirements weren't met or because, after hearing from the plaintiff, the judge just didn't believe her.

 

[Len-2A Training]

RKG, I see that you work for one of the larger law firms in Boston.

I never said that clerk-magistrates issue 209As. AFAIK, there is a judge in every district court that has a pager/cell setup 24x7x365 and upon a call from any PD, they will issue the temporary 209A. Once it is issued, the local PD serves it and removes all guns/ammo/licenses. Even if vacated, many/most chiefs will NOT return the license and guns to the person! Thus, they are screwed even if not guilty of anything under our "discretionary licensing" laws.

AFAIK, all/most ROs are issued by District Court Judges (that is what my PD tells me). I suspect that the only time that Superior Court Judges review them is if someone fights it tooth and nail and is willing to spend the real serious money to do so.

 

[RKG]

Actually, this isn't my field and I know very little about it. The matters I observed (by virtue of having my hearings interrupted, and we were all told to just sit around and wait and then we'd resume) were all original applications for 209As and were heard in the Superior Court. So we sat and watched. I believe, without having kept a score, that I saw more ex partes denied than granted, but in any event the judge made a judicial review of the application, affidavit and testimony by the applicant.

My point was quite limited. But I seem to have dragged myself into a larger debate concerning which my knowledge component matches my interest component, so maybe I can effect a graceful exit.

On the way out, though, I have been induced to look at the statute and find that the disqualification for holding a license to carry is in these terms:

"is currently subject to: (A) an order for suspension or surrender issued pursuant to section 3B or 3C of chapter 209A or a similar order issued by another jurisdiction; or (B) a permanent or temporary protection order issued pursuant to chapter 209A or a similar order issued by another jurisdiction". (Emphasis added.)

Since "currently" means "at the present moment," the clear language of the statute is that one who was once subject to a 209A that has since been vacated or has since expired of its own terms is not disqualified. Likewise, where a line has been drawn by the legislature, that line is generally considered to be not subject to re-drawing by the executive. Thus, for instance, if the legislature sets 21 years as the minimum age for a LTC, a police chief could not under the statute decide that the minimum age should be 25 (or 50), either under the guise of "suitable person" or otherwise. By the same logic, where the legislature has declared that LTC disqualification perforce a 209A ceases at its expiration, a chief should not be allowed to overrule the legislature. I don't know, however, if the point has ever been decided by an appellate court. (But cf. Howard v. Chief of Police of Wakefield, 59 Mass. App. 901 (2003) (factual findings underpinning a Probate Court protection order, not the fact of the order itself, concerning a recent violent action, sufficient to sustain non-renewal of LTC, in a case in which, following vacation of a related 209A, the LTC and firearms had been returned).)

And, for the record, I am retired.

 

[TonyD]

And, for the record, I am retired.

Your knowledge and participation will still be much appreciated. Welcome aboard!

 

[Len-2A Training]

Judges are very reluctant to overrule a chief on "suitability". Since most real domestics result in the spouse refusing to proceed with testimony, it is true that a lot of bad actors do get away with it.

Therefore, many chiefs take the approach that if there was an accusation (any accusation), there must be an element of truth to it and in a CYA move they declare the party "not suitable" . . . and refuse to re-issue the LTC.

So, even though there is no statutory disqualifier, the chief still has the ability to use that info to screw the person, and frequently does just that.

 

[sal]

Just something to add. Although rare not all emergency or temporary restraining orders will require you to turn in your firearms and LTC. Also if the defendant uses a firearm in the performance of their job they can get an expedited hearing within two days of the court receiving the defendants affadavit.

CHAPTER 209A. ABUSE PREVENTION

Chapter 209A: Section 3B Order for suspension and surrender of firearms license; surrender of firearms; petition for review; hearing

Section 3B. Upon issuance of a temporary or emergency order under section four or five of this chapter, the court shall, if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, order the immediate suspension and surrender of any license to carry firearms and or firearms identification card which the defendant may hold and order the defendant to surrender all firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses in accordance with the provisions of this chapter and any license to carry firearms or firearms identification cards which the defendant may hold shall be surrendered to the appropriate law enforcement officials in accordance with the provisions of this chapter and, said law enforcement official may store, transfer or otherwise dispose of any such weapon in accordance with the provisions of section 129D of chapter 140;

Upon the filing of an affidavit by the defendant that a firearm, rifle, shotgun, machine gun or ammunition is required in the performance of the defendant's employment, and upon a request for an expedited hearing, the court shall order said hearing within two business days of receipt of such affidavit and request but only on the issue of surrender and suspension pursuant to this section.

 

[Rob Boudrie]

RO's

Chapter 140, section 131 (d) (vi) prohibits issuance to someone who :

"(vi) is currently subject to: (A) an order for suspension or surrender issued pursuant to section 3B or 3C of chapter 209A or a similar order issued by another jurisdiction; or (B) a permanent or temporary protection order issued pursuant to chapter 209A or a similar order issued by another jurisdiction; or"

Note that "B" does not contain any conditionality upon a "finding of threat" or "order to surrender firearms". The generally accepted interpretation among those who matter is that the issuance of a 209A mandates revocation. If anyone on this list know of any issuing authority which will issue (or non-revoke) if a 209A does not have a specific firearms surrender/ban clause, please post the info here.

 

[Scrivener]

"Note that "B" does not contain any conditionality upon a "finding of threat" or "order to surrender firearms". The generally accepted interpretation among those who matter is that the issuance of a 209A mandates revocation. If anyone on this list know of any issuing authority which will issue (or non-revoke) if a 209A does not have a specific firearms surrender/ban clause, please post the info here."

The "finding of threat" was made when the restraining order was issued. So long as the order is in force, state and federal law mandate the loss of the license and surrender of the guns.

Note that some PDs ignore the surrender language and conduct what are essentially warrantless raids; they serve the revocation notice and then search the house, seizing all firearms therein - even those owned by OTHER members of the household.

I have had a refusal to renew an LTC overturned where the basis was an EXPIRED TRO. Note that the LTC was NOT revoked at the time the TRO was issued.

Why? In the officer's own words" Well, it happened in (this department's own city), so we didn't know about it." This city's police chief is a well-documented cretin.

Yes, they serve and protect..........