Is it Illegal for David Letterman to Own a Gun?

Now that David Letterman is the subject of a restraining order barring him from harming a nutty lady who think he is sending her secret signals, the question arises of whether it is still lawful for Letterman to purchase or possess firearms. The relevant federal law is 18 U.S.C. § 922(d)(8). It prohibits gun possession (even holding someone else's gun momentarily) by "prohibited persons." Partly in response to the O.J. Simpson murder case (in which the victim was killed with a knife), Congress cracked down on gun possession by people subject to domestic violence TROs. Thanks to the 1994 Clinton crime bill, federal law now bans gun possession by any person who:

is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child,...
Letterman would seem to fall squarely within the prohibition. The TRO states that must not "harm" or "threaten" the plaintiff. Likewise, Letterman is ordered not to block plaintiff in public places or roads. The order against harming the plaintiff would seem to be encompassed within the statutory language about any order against "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury."

The second question is whether Letterman is an "intimate partner" of the complainant. According to the motion for the TRO--which the judge apparently considered credible enough to merit issuance of a TRO--Letterman has asked the complainant to marry him, and communicates with her constantly. The complainant alleges a long-standing relationship, with frequent communication, and Letterman being so intimate with her as to demand that she shut off all contact with other people. Such conduct, if it really took place, could arguably make Letterman an "intimate partner" of the complainant.

The federal gun prohibition statute contains an exception:
this paragraph shall only apply to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
The TRO does not explicitly state that it is issued ex parte, but it does contain a finding that no notice to the defendant is required. The application for the TRO contains no evidence of service. So if Letterman never was properly served with the application, he's off the hook, and can still possess a gun. If we hypothesize that Letterman had been properly served (if that Letterman fails to comply with the court order to appear at the hearing in 10 days, to determine whether to make the TRO permanent, and the court does make the order permanent), there is one other statutory requirement. The court order must be one which:

(B)(i) includes a finding that such person represents credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
The TRO contains no finding that Letterman is a threat to the complainant, so prong (i) does not apply. The TRO does, however, prohibit Letterman from harming or threatening the complainant, which would seem to fall within prong (ii), which requires that the court order explicitly prohibit physical force or the threat thereof against the intimate partner.

Accordingly, if the complainant has simply bothered to hire a New York process server to serve Letterman with a copy of the complaint, it would now be illegal for him to possess a firearm. If the court properly sents Letterman an order to appear at the hearing for making the TRO permanent, and Letterman fails to do so, and the court makes the restraining order permanent, then Letterman will be committing a federal felony if he every holds gun in his hands.

For years the feminist community has been exhorting the authorities always to "believe the victim" who complains of intimate partner abuse. Clearly their message has been heard in the First Judicial District Court of the state of New Mexico.

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  1. Is it Illegal for David Letterman to Own a Gun?
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