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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.

Related Posts (on one page):

  1. Is it Illegal for David Letterman to Own a Gun?
  2. Is This Some Solstice Fool's Joke?
PersonFromPorlock:
Another interesting question is: is Letterman permitted to broadcast? Since the TRO was issued to stop alleged harassment which took place through television broadcasts, won't he be continuing to 'approach' the plaintiff, in the same manner he 'approached' her before, if he appears on his show?
12.22.2005 4:55pm
Mr Diablo:
What a cowardly and shallow assault on "feminists."

(1) This TRO is ridiculous. And I think we all know that thanks to our wonderful system of electing local judges, you can get any idiot on the bench. Look at the Supreme Courts in Michigan if you want some examples of skillful campaigning putting wholly unqualified people in positions of legal scholarship.

(2) The 1994 law should not be eviscerated because of one stupid judge. I thought conservatives were the ones who opposed the "throw the baby out with the bathwater" arguments.

(3) If anyone at my firm or in my law school ever through in that last absolute non-sequitor paragraph about "feminists"; he'd be taken to task by a partner or a professor. Look, I'm certain like most conservatives you've got a bitch with the feminists. Let's try to keep our arguments edited for clarity and precision, rather than reminiscient of scattershot. Next time, why don't you just write, "I don't like liberals, na-na-na-na-na-na!" in your last paragraph.

I know it's the silly season where Christians are claiming to be discriminated against, and Bill O'Reilly is blacklisting media organizations who fail to correct themselves when they make an error... but can conservatives just try to look at this goofy TRO in some stupid state court in New Mexico and pretend that it is not a sign of the coming apocalypse? This TRO isn't going to last a week.

David, it's the holidays; as many things as liberals get wrong, let's give them a break on something that has absolutely nothing to do with them.
12.22.2005 4:59pm
Choosing Sides 2:
"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."

Yes, blame feminism!!!! That makes perfect sense.
12.22.2005 5:02pm
Gordon (mail):
Although its a subtext not explicit in the post, I take it that David has a problem with TRO subjects being prohibited form owning firearms. Am I correct?

The problem here is the wacky TRO and judge, not the law, IMHO. I don't see how anyone can want the garden-variety harrasser/stalker who is the subject of this law to legally own a firearm.
12.22.2005 5:06pm
Master Shake:

What a cowardly and shallow assault on "feminists."

My thoughts exactly.

Sad, Kopel.
12.22.2005 5:11pm
TOTL:
An excellent post demonstrating how to undermine your intellectual credibility.

The notion that feminism somehow caused the judge to issue the TRO is as batty as the TRO itself. Your paranoia re feminism's infiltration is as kooky as the paranoia the woman suffers when she turns on the tube to watch Letterman propose to her. And just as I won't be paying any attention to this woman's claims that Letterman is, in fact, communicating to her, neither will I be paying much attention to anything you might say re feminism.
12.22.2005 5:15pm
Mr Diablo:
Master Shake!

Just seeing that...OK, I'm leaving work and watching Aqua Teen Vol. 1 tonight.

Master Shake: Plaque is a figment of the liberal media and the dental industry to scare you into buying useless appliances and pastes. Now, I've heard the arguments on both sides, and there is nothing to convince me of the need to brush your teeth.
12.22.2005 5:18pm
John Lederer (mail):
Do rayguns fit within the Gun Control Act?
12.22.2005 5:21pm
Justice Fuller:
David writes:

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

There goes your chances of getting published in the Yale Law Journal.
12.22.2005 5:22pm
Master Shake:

There goes your chances of getting published in the Yale Law Journal.

Most excellent cross-post.
12.22.2005 5:26pm
Clayton E. Cramer (mail) (www):

What a cowardly and shallow assault on "feminists."
I didn't even see an assault. He made a statement that feminists believe that the courts should believe the victims. They did--even when it was clear the the complainant is crazy. TROs are issued just a little too readily, wouldn't you agree?
12.22.2005 5:27pm
James968 (mail):
Instead of feminists, a better target would have been "Gun Control Nuts"
12.22.2005 5:28pm
Master Shake:
Clayton didn't even see an assault. Shocking.
12.22.2005 5:29pm
procrastinating clerk (mail):
Kopel:

I doubt anyone in Hollywood can legally own a gun. 18 U.S.C. ยง 922(d)(3) (prohibiting gun possession by anyone "who is an unlawful user of or addicted to any controlled substance")
12.22.2005 5:32pm
krosenstein:
Returning to the legal issue. You've ignored one crucial fact - 18 U.S.C. sec. 922(d)(8) applies only when the person who obtained the order is or was an "intimate partner" of the person against whom the order is directed. "Intimate partner" is defined in 18 U.S.C. sec. 2266(7)(A) to include

a spouse or former spouse of the abuser, a person who shares a child in common with the abuser, and a person who cohabits or has cohabited as a spouse with the abuser; and
. . .
(B) any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the State or tribal jurisdiction in which the injury occurred or where the victim resides


I don't think there's any evidence that Letterman is an intimate partner of this woman.
12.22.2005 5:32pm
Mr Diablo:
Clayton, not too readily enough to randomly assign blame to "feminists." That Kopel has found the need to post twice on this suggests that he's foaming at the mouth over a complete non-issue. Having gotten a couple of TROs in emergency situations for poor clients (back in my wild idealist and very poor days)

Someone should remind Kopel that the liberals who muck around volokh.com are smarter than the average radio show listener who might buy this tag-line attack.
12.22.2005 5:33pm
Justice Fuller:
Clayton,

The judge's order had nothing to do with actually believing the woman -- it was presumably just a judge who wanted to get a loony tunes petitioner out of the way -- so the attack on "feminists" seemed way out of left field and was pretty much just a cheap shot.
12.22.2005 5:33pm
Mr. Mandias (mail) (www):
You a mind reader, "Justice Fuller"? Do you use your television set to decipher Judge Sanchez's intentions and motivations?
12.22.2005 5:44pm
Justice Fuller:
Mr. Mandias,

I'm not a mind-reader, but I have read the woman's application to the court for a TRO. If you read it, you will know that the judge didn't believe it. Thanks for asking -- it sure would be cool to be a mind reader!!!
12.22.2005 5:53pm
Seamus (mail):

The problem here is the wacky TRO and judge, not the law, IMHO.



No, the problem is the law, precisely because it law allows wacky TROs and judges to impose serious consequences on innocent parties.


Returning to the legal issue. You've ignored one crucial fact - 18 U.S.C. sec. 922(d)(8) applies only when the person who obtained the order is or was an "intimate partner" of the person against whom the order is directed.



That raises the interesting question of whether, in defending against prosecution under section 922, the defendant can collaterally attack a determination by a TRO-issuing judge that he was in fact, an "intimate partner" of the applicant. I can certainly see that gun controllers might want a bright-line rule that says we need to know clearly who's permitted and who's not permitted to possess firearms, so that, if the judge has issued a TRO against you on the ground that you're an intimate partner (and a threat), then that's good enough to trigger the statute, and people shouldn't be able to evade punishment by second-guessing the judge's determination months or years after the fact. Does anyone know whether there has been any case law on this point?
12.22.2005 5:55pm
Mucus Maximus:
You geldings can shriek all you want, he's absolutely correct that the feminists think we should always "believe the victim." Women Just Don't Lie! (Except for nasty little sluts like Paula Jones and Juanita Broaddrick, of course.)

it was presumably just a judge who wanted to get a loony tunes petitioner out of the way

Couldn't he have clapped her in irons and transported her to the colonies or something? Judges must surely have better ways to get rid of loonies than to comply with their requests.
12.22.2005 5:56pm
David M. Nieporent (www):
I don't see how anyone can want the garden-variety harrasser/stalker who is the subject of this law to legally own a firearm.
Well, there is that whole "innocent until proven guilty" thing I hear so much about.


The judge's order had nothing to do with actually believing the woman -- it was presumably just a judge who wanted to get a loony tunes petitioner out of the way -- so the attack on "feminists" seemed way out of left field and was pretty much just a cheap shot.
I doubt the judge "actually believed" the woman -- but your assessment of his true motive represents speculation. Do I think that "feminists" would approve of this particular decision? Of course not. But "feminists" do have judges running scared on the subject of domestic violence. People who actually practice in this area can tell you -- in fact, I think some did, in the earlier comment thread on this subject -- how reluctant judges are to deny restraining orders to women who come before them to make application for them. Why? Because when a woman gets killed after a judge denies such a request, that judge will be lucky to escape the tar and feathers. (Nevermind that a restraining order never protected anybody.) So, because of feminist lobbying, many judges act as rubber stamps for these applications. I suspect that that, rather than "getting a loony tunes petitioner out of the way," was what happened here.


And that, Gordon, is why the law, not merely the "wacky TRO," is a problem.
12.22.2005 6:02pm
Seamus (mail):
It should also be noted that the definition of "intimate partner" in 18 U.S.C. section 2266 applies by its terms only to that expression when used in chapter 110A (Domestic Violence and Stalking -- sections 2261 through 2266), not to chapter 44 (the one on Firearms, which includes section 922).

Of course, a defendant can always argue that the court should find that "intimate partner" has the same meaning (by judicial gloss) in chapter 44 as it does (by explicit statutory language) in chapter 110A. But by the same token the prosecution can always come back with an argument that "if Congress had wanted to import the definition from section 2266 into chapter 44, it knew how to do so, and it chose not to," followed by some policy argument about how it's in the public interest to err on the side of safety and how Congress clearly wanted section 922 to apply very broadly to potentially dangerous people.
12.22.2005 6:06pm
Visitor Again:
The whole thing is a tempest in a teapot. Letterman is off the hook for two reasons, both grounded in due process.

First, due process is violated because New Mexico doesn't have personal jurisdiction over Letterman. At least, I'll bet he's had insufficient contacts with the state to give it personal jurisdiction over his person in connection with this dispute. True, his program is telecast there and that show is the means by which he allegedly accomplished the wrong, but this woman's allegations are fanciful on their face in that regard. (There might be an exception from the usual due process jurisdictional rules for domestic relations cases, but this case isn't one of those, is it?)

Second, he hasn't had proper notice of the TRO; it has to be served on him to have any effect. To impose any sanctions on him without notice violates due process.

Since the judge claims he read the papers, the issuance of the TRO is the action of one who either made a misguided effort to calm a disturbed woman or who wanted some excitement in his own dull, drab life. Some people reach the point where they commit professional suicide out of sheer boredom. In either event, the judge should be disciplined.
12.22.2005 6:33pm
Nunzio (mail):
It's not clear that this federal law is even remotely constitutional. It's not regulating the sale of firearms; it's regulating the possession of firearms in certain circumstances. In other words, it's not banning possession as a necessary means of banning sale to even a certain class of individuals, it's banning possession as a necessary means of something not connected to interstate commerce.

Even after Raich, this would not fly under the commerce/necessary and proper clause. This law is actually a hybrid of the type of laws struck down in Lopez and Morrison.
12.22.2005 6:37pm
David Matthews (mail):
"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;"

Just a few years ago, I found myself in the Letterman position , although in my case it was with my (now ex-) spouse; i.e. she had filed a restraining order against me for what I still maintain were totally bogus reasons. The order was issued and served based soley on her (false) testimony. When I went before the judge (Ramsey County, MN, if that matters re. federal law), I asked him about my firearm rights, and he told me that only were a restraining order issued at the current hearing would that be applicable. Since I agreed to the court's resolution to the case, without an admission of guilt, no restraining order was issued AT THE HEARING WHERE I WAS PRESENT, and consequently, my right to keep and bear firearms was not limited. The judge said that in issuing preliminary restraining orders, they come down on the side of caution; and that the granting of preliminary restraint should in no way be construed as a judgement on the merits of the accusation.

Don't know what a literal interpretation of the law says, but that's how it came down in practice.
12.22.2005 6:37pm
Hans Bader (mail):
Kopel is absolutely 100 percent right, as I can vouch based on my (a) reading of 10,000 plus family law decisions, including hundreds of domestic violence cases and decisions involving restraining orders, and (b) hundreds of hours of research in this area.

It takes only a bare, false allegation to get a restraining order. Judges rubberstamp requests for restraining orders, since to do otherwise, they have been taught by advocates, is "insensitive." Pressure from feminist lobbying groups is much of the cause.

The Letterman case illustrates that judges just rubber-stamp restraining order requests in violation of due process.

Frivolous restraining orders aren't harmless or meaningless -- they have terrible consequences in child custody and other divorce-related litigation brought by the false accuser against the innocent accused.

And loads of restraining orders are based on false allegations.

And legal rights are permanently affected by restraining orders. For example, federal law bans objects of restraining orders from possessing long-held firearms, meaning a falsely accused hunter or security guard has to give up his guns and lose thousands of dollars worth of property.

This patent abuse of process in the Letterman case is typical of how frivolous domestic violence claims are upheld by cowardly judges.

Most judges, desiring to appear sensitive to domestic violence victims, grant more than 99 percent of all temporary restraining orders that are filed. (And it costs nothing to seek a domestic violence TRO, unlike every other kind of civil process, which requires a filing fee).

They're terrified that in the freak event that they deny a poorly-supported TRO motion, and the defendant then goes nuts in response to the TRO motion and kills the complainant, they'll be demonized on TV and in the press or even, in rare cases, removed from the bench for "insensitivity."

Domestic violence TRO's are granted without any opportunity for the innocent accused to tell his or her side of the story.

Such TRO's have been called the "poor woman's divorce" because they enable the wife to summarily kick out her husband and gain control of the house and family car without even going through the procedural safeguards needed for a divorce.

I myself have talked to men who were wheelchair bound or otherwise physically disabled from posing much risk of harm who were falsely accused and then made subject to ex parte domestic violence TROs.

This episode reminds me of Tonya Harding. She was previously convicted of a violent felony for conspiring to attack a figure-skating rival. And she was previously also charged with domestic violence herself.

Yet she managed to get her injured boyfriend arrested for domestic violence after first telling 911 operators falsely that she was beaten by masked intruders and then admitting that story was false and instead changing her story to accuse her boyfriend.

The prosecutors believed her, despite her own conceded initial lie about the very incident in question, and history of felonious and domestic violence, and charged the boyfriend despite his denials.

There's an awful lot of sex bias in handling domestic violence cases, almost always against the male. Women who kill their husbands without provocation get only 7 years, according to the federal Bureau of Justice Statistics' study of large urban counties, compared to 17 years for men who kill their wives.

For evidence of the bias against men, see the statistics cited in the amicus briefs in U.S. v. Morrison, 529 U.S. 598 (2000) filed by the Independent Women's Forum and Women's Freedom Network.

(I am a lawyer, but not a divorce lawyer. I should not have to point this out, but since you might otherwise wonder, I have never been accused of domestic violence, nor have I been divorced).

Hans Bader
202-331-2278
12.22.2005 7:05pm
Andy Freeman (mail):
> I don't see how anyone can want the garden-variety harrasser/stalker who is the subject of this law to legally own a firearm.

What about folks who aren't harrasser/stalkers who are subject to this law? Surely we can agree that they are a "cost".

Oh, and if you're going to argue that the law is good wrt harrasser/stalkers, surely you can show that it has done some good. Let's call this received benefit "good".

Anyone want to do an incurred cost/received benefit comparison?
12.22.2005 7:09pm
Roger Schlafly (www):
Hans Bader is correct. The Letterman story is amusing, but it is not that different from bogus TROs that get issued all the time. The system was created by a feminist ideology. These bogus TROs cause a lot of harm.
12.22.2005 8:41pm
Fishbane (mail):
a spouse or former spouse of the abuser, a person who shares a child in common with the abuser, and a person who cohabits or has cohabited as a spouse with the abuser; and [...]

This is likely a trivial question for a practicing attorny, but a legal question from a non-lawyer: What is the applicable standard for establishing as a fact that someone qualifies as an 'abuser', for the purposes of the above paragraph? Or is that even the right question?

Oh, and just a note about civility:

You geldings can shriek all you want, he's absolutely correct [...]

You know, I'd love to consider your point, but as a matter of practice, introductory locution does, in fact, serve as a wonderful filter. Since we've taken a massive step back from the USENet days, when a mail reader could filter out trolls, I have to rely on such devices to filter comment sections. Which just means that whatever you're talking about is ignored, and I'm pretty likely to just skip over future posts from the same 'Name' attribute. You may or may not care, but I thought I'd just pass along my process there, in case you might care.
12.22.2005 8:47pm
Dilan Esper (mail) (www):
Let me join the condemnation of David Kopel for attacking feminists. No feminist I know-- and I know a lot of them-- believes that women who claim to be victims of rape or domestic violence should always be believed, no matter how little credibility their stories have, or that TRO's should issue at the drop of the hat where there is no adequate showing.

What feminists have pointed out is that for many years, victims of violence against women were simply not believed. It was not treated as a serious problem, the laws tilted the evidentiary playing field in favor of abusers, and many things-- like marital rape-- which should have been serious crimes were not even treated as crimes at all.

Against the backdrop of that history, feminists set out to change laws and attitudes about violence against women. They have largely succeeded. Is there a downside? Sure. Sometimes, low-level disputes between couples which might have been handled in the past by just allowing the parties to cool off, for instance, fall within mandatory arrest policies. Kopel, in addition, may be right about this federal gun statute being overbroad as it applies to people who have been slapped with mandatory or near-mandatory TRO's under loose standards of proof.

But nobody can seriously argue that the current system isn't a vast improvement over a system that didn't take women's complaints seriously and left women to fend for themselves and be victimized by violent men. And more to Kopel's point-- the issue was never that all women should be believed, but that all women should be heard and that credible allegations of violence should not be ignored. So long as the factfinder is enlightened to the seriousness of the issue of violence against women, nobody has ever said that there should be no discretion to weed out false and incredible claims.
12.22.2005 9:05pm
Matt22191 (mail):
We covered most of these issues in the comment thread to this post, yesterday.

First, the prohibition David is looking for is 18 U.S.C. section 922(g)(8), not (d)(8). 922(d)(8) prohibits "dispos[ing] of" a firearm to a prohibited person, not possession of a firearm by a prohibited person. 922(g)(8) contains the prohibition on possession.

Second, for purposes of chapter 44, title 18, "The term 'intimate partner' means, with respect to a person, the 'spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person." 18 U.S.C. s 921(a)(32). That language is pretty clear. And there appears to be absolutely no evidence whatsoever that Nestler is a spouse or former spouse or letterman, or that she has borne his child or cohabited with him. Based on what she alleges in her application, I don't think she's even "arguably" an intimate partner of Letterman.

Third, Letterman's attorneys are apparently objecting to the TRO on grounds that he was never served (not just that he was improperly served). Thus I'm pretty sure that neither 922(d)(8) nor 922(g)(8) applies to Letterman, even leaving aside the intimate partner issue.

That said, David's basic points are valid. It's far too easy to obtain a restraining order in anything that even approaches a domestic case, and this is not an inconsequential thing. It results in unwarranted restrictions on the liberty of law-abiding gun owners (disproportionately men), and it's apt to make criminals of some of them. (That said, in my limited experience the ones who actually get arrested and charged under 922(g)(8) normally have done something criminal -- such as violating the TRO -- to bring themselves to the attention of the authorities. I haven't seen much evidence that many good citizens are being sent to prison under 922(g)(8), although I could be persuaded otherwise.) Finally, while it may be unfair to lay the blame at the feet of feminists generally, there's clearly a bias in favor of women who claim abuse. Some of the bureaucrats who deal with domestic abuse in the military -- with whom I have a little personal experience, having had a couple of my Marines accused of abusing their wives -- seem to operate on the theory that all claims of domestic abuse by women are true, and any woman who denies having been abused is suffering from some variant of Stockholm Syndrome.
12.22.2005 9:08pm
Roger Schlafly (www):
What feminists have pointed out is that for many years, victims of violence against women were simply not believed. ... Against the backdrop of that history, feminists set out to change laws and attitudes about violence against women. They have largely succeeded.
Yes, feminists have succeeded in creating a system in which just about any kooky woman can get a TRO based on the flimsiest request. I think that is Kopel's point, and he is correct.

Whether our current TRO system is better or worse than the previous system is a debate for another thread.
12.22.2005 9:30pm
femalelawprof:
Visitor Again writes:

Since the judge claims he read the papers, the issuance of the TRO is the action of one who either made a misguided effort to calm a disturbed woman or who wanted some excitement in his own dull, drab life. Some people reach the point where they commit professional suicide out of sheer boredom. In either event, the judge should be disciplined.


My guess is that the issuance of the TRO had more to do with keeping the applicant away from Letterman than keeping Letterman away from her. Her application suggests a disturbing tendency to show up near his studio unannounced.
12.22.2005 9:30pm
Fishbane (mail):
Dilan Esper: a voice of reason.

To draw an admittedly coarse parallel, I wonder how many of those who believe Art. II, or wartime powers, or whatever the story of the the day there is would admit that overreach in a good cause can happen.

Matt[some numbers]: I can't speak to the situation in the military. And I do think civilian TROs are overbroad and damaging. In fact, I know someone who used it as a weapon in a separation battle. I think TROs are an example of a very, very messy situation in reality that looks very plain in theory, and some of the cruft to which Kopel correctly objects should go. Clearly, this woman is a nut. But TROs are a tool employed in a time sensitive environment where someone (right or wrongly) is claiming fear of harm (...ticking bomb, anyone?...). I think a reasonable person would conclude that erring on the side of caution is in order. Will there be problems? You bet. Without complete information, one can't even pretend. Even with it, one can argue. And even our current administration admits it has been wrong, if only to attempt to shift blame.

So, what would be a better TRO test? Any suggestions for a workable real-world test that real judges could use when evaluating real TRO requests?
12.22.2005 10:58pm
Michelle Dulak Thomson (mail):
Dilan Esper,

Let me join the condemnation of David Kopel for attacking feminists. No feminist I know-- and I know a lot of them-- believes that women who claim to be victims of rape or domestic violence should always be believed, no matter how little credibility their stories have, or that TRO's should issue at the drop of the hat where there is no adequate showing.

You obviously know a different bunch of feminists. In general, if it's "he said/she said," "she" ought to win, in their eyes. If she also says that she was gang-raped by a bunch of masked men in an underground crypt and then made to be sodomized by a sacrificial goat, some shades of doubt might creep in. But it still might be difficult to disprove, mightn't it? And that's the point: the standard of proof re rape and sexual abuse seems to have shifted from one where the plaintiff has to prove the crime happened to one where the defendant has to prove he didn't do it. Which, since the alleged abuses cannot have been witnessed, is pretty well impossible.

This is not just to do with women, of course; the most obvious instances are the "he said/he said" cases of the Catholic clergy sex-abuse scandal. Does no one think that reversing the burden of proof in cases like this is a bad thing?
12.22.2005 11:36pm
Matt22191 (mail):
Fishbane,

TROs don't concern me as much as permanent restraining orders, because they're by definition temporary and have fewer collateral consequences.

Anyway, I can think of at least one thing that might reduce frivolous restraining order applications: Perjury prosecutions for those who seek restraining orders on false pretenses. (If you ask me, we could use a hell of a lot more perjury prosecutions in this country on general principle. How about this simple rule: If you lie to a court you go to jail for six months. No fines, no probation -- just jail. The system would be a lot better for it.) As it stands, there seems to be little downside and much potential upside, at least in some cases, to lying to obtain a restraining order. Creating a downside would be a step in the right direction.

A little more statutory specificity -- and common sense -- about what can and can't be considered in deciding whether to issue a restraining order might also be a good idea. For example, reasonable force used in self-defense shouldn't be a ground for a restraining order: if you defend yourself against an attack, in a manner proportionate to the attack, you should not suffer any loss of liberty as a result. (As it stands, in at least some places a man who physically restrains his wife when she attacks him him will be arrested and possibly charged with domestic battery, and at may very well become the subject of a restraining order.) And if future emotional harm is to be a ground for a restraining order, perhaps it should be so only for permament restraining orders -- how much emotional harm are you really going to suffer in a couple of weeks or less? -- and then only if the applicant can meet an elevated standard of proof. Most states allow tort recovery for infliction of emotional distress only in narrow circumstances and only if the distress is truly severe, but somehow the barest allegation that a person may say something to make their spouse feel badly is enough for a protection order in many jurisdictions. That doesn't seem right.

I should perhaps add that I'm skeptical that restraining orders offer much real protection, except in rare cases. (For example, despite all the focus on domestic abuse in the past twenty or so years, and despite what I at least perceive to be an explosion in issuance of domestic restraining orders, the proportion of female homicide victims killed by intimate partners doesn't seem to show any consistent decline since 1976.) Thus I don't think that making them moderately harder to get is likely to do much real harm.
12.23.2005 12:13am
Penta:
Fishbane:

But TROs are a tool employed in a time sensitive environment where someone (right or wrongly) is claiming fear of harm (...ticking bomb, anyone?...). I think a reasonable person would conclude that erring on the side of caution is in order. Will there be problems? You bet.

Mmkay. I can see that.

Would it be plausible/possible for a TRO to automatically be expunged unless the hearing issues a permanent order?

In short, unless it's confirmed, the TRO is annulled and void at the end of however long a period.
12.23.2005 12:13am
Ex-Fed (mail) (www):
"And that's the point: the standard of proof re rape and sexual abuse seems to have shifted from one where the plaintiff has to prove the crime happened to one where the defendant has to prove he didn't do it. Which, since the alleged abuses cannot have been witnessed, is pretty well impossible."

Could you kindly cite the case or statute embodying this change? I'd like to see it, please.
12.23.2005 12:34am
therut (mail):

Any woman who thinks a restraining order is worth more than the paper it is written on is stupid. I know. I had a staker. I have a permanent restraining order. I also carry a handgun. That is what will protect me more than any restraining order. Feminists have done more damage than good. If they had any real concern for a womans safety they would be giving free handgun training and providing money to pay for poor womens governmental fees to carry a firearm. Taking a mans firearms away does nothing. He can and they do still kill with their bare hands, knifes and other assorted objects. If someone wants to kill taking their firearms will not stop them and may just push them to act. Dumb law.
12.23.2005 12:51am
Fishbane (mail):
I also carry a handgun. That is what will protect me more than any restraining order. Feminists have done more damage than good. If they had any real concern for a womans safety they would be giving free handgun training and providing money to pay for poor womens governmental fees to carry a firearm.

I agree wholeheartedly with most of this. In fact, I've been trying to organize something along the lines of what you're talking about - training, perhaps even a weapon, legal navigation, and a "buddy" - someone who talks through the difficult choice to sever one's ties with someone one once trusted, provides a reality check, and generally "is there". And by the way, also is your firing range instructor. (And it is hard to build this sort of organization, especially in an urban environment.)

I only quibble when you write off "feminists". That is too broad of a brush. I doubt you intend to write off Cathy Young, Ann Althouse, or Cathy Seipp, all of whom are self-identified feminists, and (I think it is probably safe to assume, although I haven't polled them) at least mostly agree with you. casting any and all "feminists" as endorsing a particular 2nd amendment encroachment is getting close to a category error; something Kopel himself does in the original post. If nothing else, I am a self identified feminist that loves the fact that you chose to carry, even if I (not having details about your situation, but inferring from your post) wish you weren't in the situation that led to that choice.

Word choice and large brushes are great as invective, but unlikely allies come from finding common objectives. It seems a great deal of modern political commentators have either decided that short-term advantage is more important, or forgotten that.
12.23.2005 1:22am
vic:
any thoughts on what we as a society should do to a judge who is obviously retarded
12.23.2005 1:35am
Bob Smith (mail):
>Second, he hasn't had proper notice of the TRO; it has to be served on
>him to have any effect. To impose any sanctions on him without notice
>violates due process.

Sanctions are imposed all the time in DV cases, unless you think that ex parte forbidding a man from entering his home or taking any property therefrom doesn't constitute a sanction. He usually won't find out until he comes home from work and the helpful officer tosses him pursuant to said order.
12.23.2005 2:17am
Wintermute (www):
Kopel uses the term "feminist community." The politically correct mob him. Some with stories contra then chime in. Finally we see some balanced comments. Perhaps this is a microcosm of what our society is going through. Women get the vote. Some political change results. Politicians pass some statutes that help women. Maybe the compromise of interests embodied in the legislation, or the implementation of it, in some cases even favors them. Men finally push back. The best available balance is finally reached. One can hope.

Maybe David should have said the "violence against women activists." Big deal. I practice in this area a good bit; and I wish I knew who was telling the truth in every case about what happened when they got into it. Women sometimes start a scuffle and get the worst of it. Women sometimes lie. The experience of the individuals in calling 911 first matters, as do the cops, who sometimes believe the man, sometimes the woman. Thus the playing field can become tilted.
12.23.2005 4:09am
Mr Diablo:
Mucus, take some sudafed, clear out your brain and pay attention to what I wrote rather than what you wish I had written. The judge can reject the application or do one of a million things (and should have in this case, obviously).

This post and its staunch defenders are making the feeblest of attempts to tie the actions of one judge in one narrow case to some kind of angry-white-man rant about not having enough guns to beat down those no-good successful-lobbyist feminists with.

The liberals on here are clearly smarter than the radio show audience that usually slurps down Kopel's antics without wondering what they are swallowing. The conservatives, on this thread, seem to be his radio show audience.

Hans, I've read a lot of family law and done some in a handful of clinical settings. And, for every one that was a waste of time and was denied, there was one that should have been granted. Stop trying to pretend that this crazy woman and judge in New Mexico are what it is like everywhere. No. One. Intelligent. Believes. You.
12.23.2005 9:53am
corngrower:
I have seen a lot of times on this post persons derided for their opinion because they had not gone to law school,(or the 'right ones') and this judge with his head up his ass issues a TRO. The proffessionals that call themselves 'lawyers' have a lot of 'splaining to do. I am way tired of the condesending attitudes and all the high and mighty spouting of laws and precedent and statutes, and then get a sitting judge to hand down such a load of crap, just to get on TV. The 'legal' Proffession is fantastic!
12.23.2005 10:00am
Per Son:
Somebody please show me how the "pendulum has swung" and that all it takes is an accusation of abuse or rape to find guilt. Being a feminist, who is the son of a feminist, and married to a feminist and friends with feminists - I have yet to meet any self-described feminist who believes that all women should be believed no matter what. Sure their are exceptions, just as there are exceptions to most things in life.

Social sanctions are different, as social sanctions do not always follow from reality. Consider the Salem Witch Trials or teachers losing their jobs even after acquittals for rape or molestation.
12.23.2005 10:34am
TDPerkins (mail):
Master Shake wrote:

Clayton didn't even see an assault. Shocking.


I think you're very silly to claim it's an assault. It isn't. It is a digression from the main point, and one that may be revelatory of a point of view the author has has on a mostly unrelated topic.

But then that's only true because the original claims were so bizaarre I hope even feminists would give them no credence.

The feminist movement deserves all the slams it takes to get them drop and then apologize for the ridiculous "believe the victim" mantra.

For those stating no such mantra exists, they have destroyed their credibility about the issue.

Yours, TDP, ml, msl, &pfpp
12.23.2005 11:19am
gvibes (mail):
Anon1ms - I think you are pretty badly misrepresenting the positions of those who support the posting. No one in this discussion stated domestic violence isn't a problem. No one recommended ignoring the problem of domestic violence.
12.23.2005 11:24am
BruceM (mail) (www):
Read the 5th Circuit's Emmerson case, http://www.firearmsandliberty.com/emmerson-appeal.html, which is directly on point on this issue (and a horrible case).
12.23.2005 11:31am
Michelle Dulak Thomson (mail):
Ex-Fed, Per Son,

I wrote hastily and somewhat inaccurately, sorry. I don't think it's easier to prove a rape case now than it was earlier. I do think it has become easier to make accusations of sexual abuse, and I don't see "social sanctions" as trivial when they cost people their jobs and institutions their reputations. You need only look at the Satanic-daycare-cult cases to see that accusations of abuse are readily believed. People have been imprisoned on such evidence; some still are.

Per Son, I'm a feminist too. But I am tired of the sort of feminist who says "We're in the business of believing women's stories." (OK, that's V. I. Warshawski in one of Sara Paretsky's mysteries, but that's the tone.) You might not run across them, but I have. If there are conflicting accounts of an event, I want all the info, and I am not going to count the number of X chromosomes before evaluating it.
12.23.2005 11:39am
Per Son:
I do not think that social sanctions are trivial. They are beyond horrible in many cases. However, I do not see them a slegal sanctions, or sanctions that the legal system can do anything about. They are about psychology and are as old as fire is hot.
12.23.2005 12:21pm
Clayton E. Cramer (mail) (www):

The judge's order had nothing to do with actually believing the woman -- it was presumably just a judge who wanted to get a loony tunes petitioner out of the way -- so the attack on "feminists" seemed way out of left field and was pretty much just a cheap shot.
You mean that judges routinely issue TROs when they don't believe the petitioner to get them "out of the way"?

Look, I agree that if there's some reason to believe that the request has merit, it is probably a good idea--but at least from press accounts, the petitioner is obviously crazy. I guess the judge is a TRO vending machine.
12.23.2005 12:23pm
Visitor Again:
>Second, he hasn't had proper notice of the TRO; it has to be served on
>him to have any effect. To impose any sanctions on him without notice
>violates due process.

Sanctions are imposed all the time in DV cases, unless you think that ex parte forbidding a man from entering his home or taking any property therefrom doesn't constitute a sanction. He usually won't find out until he comes home from work and the helpful officer tosses him pursuant to said order.


This isn't a DV case, and I agree with those commentators who point out that this wacky case involving a wacky magistrte and a wacky woman is being exploited to deliver a message it is not suited to deliver. Right wing wackos want to make it a cause celebre for poor males victimized by the crackdown on violence against women in domestic relations.

Sure, some men have been unfairly treated. But not so long ago women had nowhere to turn, nowhere. They were ignored by the law. They were treated like chattels for a good part of my lifetime. That there are some women out there who are crackpots or who act viciously says what in this regard? Nothing, except that their cases should be treated accordingly.

The spectre of an entire legal system, still created and staffed largely by males, cowering before the intimidation of feminists to the point where injustice is the rule is entirely unconvincing. But I can understand that some good old boys want the days back when they could beat the crap out of the old lady without suffering any consequences.

We lawyers had some of those "old ladies" in our offices back in the Sixties and Seventies; they showed us their bruises and black eyes. They had had to move out of the house with the kids, giving up possession to their male spouses, and go into hiding because they had no legally adequate remedy to protect themselves. If they were lucky, they got no further beatings and eventually had their day in court, after hubby had done what he wanted with most of the marital assets.
12.23.2005 12:36pm
FP:
"We lawyers had some of those "old ladies" in our offices back in the Sixties and Seventies; they showed us their bruises and black eyes. They had had to move out of the house with the kids, giving up possession to their male spouses, and go into hiding because they had no legally adequate remedy to protect themselves. If they were lucky, they got no further beatings and eventually had their day in court, after hubby had done what he wanted with most of the marital assets."

Right, and as sad as that is, what has happened today? The pendulum has swung to the other side such that men have no recourse after a TRO while they watch their wife clean out the house and other assets on a trumped up charge of DV. I've seen far too much evidence to believe in an "old boys club" in law enforcement/court system for the majority of jurisdictions these days.
12.23.2005 12:49pm
Houston Lawyer:
The part of this law I liked best was that it originally had an exclusion for law enforcement personnel. If you were subject to such an order, but you were a cop, you could still carry a gun. They amended this provision a few years ago and a fair number of cops lost their jobs because they weren't allowed to carry weapons.

Interesting how little evidence it takes to deprive a man of his right to bear arms.
12.23.2005 1:03pm
KevinM:
Look, I think the reaction to this piece may be more a question of perspective and priorities. You know, this seems like the conservative version of the old parody of the then-liberal NY Post headline: "Cold Snap Hits City: Jews, Negroes Suffer Most" You read this story and what hit you in the gut was that David Letterman might have his (I'm guessing nonexistent) gun taken away, and that the feminists were behind it? Huh? We get it, you're pro-gun, but this piece gives the (I'm sure inaccurate) impression that you're in the grip of a mania. Many events in life may have the effect of reducing access to guns. Poverty: It's a Second Amendment issue! Felony convictions: Abolish them! The solution to any power imbalance in society? Arm the victims! It occurs to me that at this point I'm the one sounding like a maniac, but you see my point. The legal mind is sometimes blind to questions of degree.
12.23.2005 1:33pm
Huggy (mail):
These comments are funny in a sad way. They illustrate that the "Criminal Justice System" is actually a combination of politics and extortion. This from people whose profession it is. I pray to God that I'm never caught in its web.
12.23.2005 1:50pm
Dave Hardy (mail) (www):
This isn't a DV case, and I agree with those commentators who point out that this wacky case involving a wacky magistrte and a wacky woman is being exploited to deliver a message it is not suited to deliver. Right wing wackos want to make it a cause celebre for poor males victimized by the crackdown on violence against women in domestic relations.


I'd agree that in the "old days" DV was treated pretty lightly. But today I think the pendulum has swung too far the other way. Not always to the woman's benefit, either -- a local study indicated that 20% or 30%, I forget which, of DV arrestees are women. Statute says police MUST arrest if there is probable cause, and the statute defines DV to include everything down to disorderly conduct within the home. Police show up, there's two people loudly arguing, or who have in some way touched each other, they are obligated to arrest both. I talked to one fellow who'd been chewing out his drug-dealing stepsons when one of them brained him with a golf club (it required staples to close the wound). Wife called 911. Police got felony warrants for the stepsons, then arrested him for disorderly conduct DV (I'm guessing that there was an unwritten policy that if you didn't make an arrest on DV call there would be some explaining to do). I know another case where police told the husband that, look--we could arrest you and your wife. Then there'd be nobody to care for your kids. We HAVE to arrest at least one person. He replied yes, then you might as well take me.
12.23.2005 3:27pm
Dave Hardy (mail) (www):
These comments are funny in a sad way. They illustrate that the "Criminal Justice System" is actually a combination of politics and extortion. This from people whose profession it is. I pray to God that I'm never caught in its web.

Politics, extortion -- you forgot incompetence! (and even occasionally corruption. Have only seen one case where I suspected that, tho. Judge ruled that during a search police had acted for this and that reason and with this and that understanding. It was right on the money. Problem was there had never been a hearing on the issue. No evidence in the record or in the court's files. So where did the judge come up with that data?)

And the fact that the system is geared toward mass production. Misdemeanors especially -- you've got evidence that would make any prosecutor realize it's a lost cause, but no one will take five minutes to see it. On the other hand, you might win a bad case, because it only got assigned to the prosecutor yesterday and he's reading the police reports while waiting for the judge to come in. For you, it's something that might cost you a criminal record and a thousand bucks, but for him it's just his third case on Tuesday.
12.23.2005 3:53pm
Matt22191 (mail):
It seems to me that some of the comments in this thread illustrate a mindset that, if held by some significant number of people, might well lead to the kind of bias some are complaining of. If you suggest that that perhaps the current system tends to be biased in favor of women, that protective orders may be easier to get than they ought to be, that some women may find it too easy to abuse the system, you're demonized. You're accused of having "misogynistic leanings" or being some the domestic abuse equivalent of a Holocaust denier -- a Neanderthal who hasn't been properly schooled in the scope or tragedy of domestic abuse. You're a "good old boy[ who] want[s] the days back when [he] could beat the crap out of the old lady without suffering any consequences."

If those sorts of accusations surface on this blog -- which probably has a more sophisticated readership than most -- do you suppose they might surface elsewhere; say, against a who, rightly or wrongly, denied a protective order to a woman who was later injured by the man against whom she sought the order? Even if the restraining order would've done nothing to prevent the injury? Do you suppose some judges are be smart enough to anticipate that reaction? Do you suppose some judges -- particularly in states where judges are elected -- might decide that it's in their best interests not to give critics that kind of ammunition? And do you suppose those judges might therefore be inclined to err in favor of women applicants in all but the most egregious cases? Do you suppose that might distort the system a bit?

I do.

In the eyes of some, questioning the system is beyond the pale. Do I suspect that nany of those people are more likely to believe women's claims of domestic abuse than men's denials of the same? You betcha.

Kopel's use of the word feminist may have been overbroad, but some of the comments here suggest that he may not have been so terribly far off the mark.
12.23.2005 4:13pm
Matt22191 (mail):
Oops. In the second paragraph of my previous comment I meant "against a judge who. . ." And "nany" should be "many" in the penultimate paragraph.
12.23.2005 5:56pm
Bob Smith (mail):
>Sure, some men have been unfairly treated. But not
>so long ago women had nowhere to turn, nowhere.

Treating women badly in the past justifies treating men badly now?

>The spectre of an entire legal system, still created and
>staffed largely by males,

Men, not males. "Males" is an appropriate noun for an animal, not a human being, and it's disrespectful to refer to men that way. I can't help but note that you don't refer to women as "females". Anyway, this is a prime example of the Frontman Fallacy. The Frontman Fallacy is the mistaken belief that people (men, specifically) who are in positions of authority in democratic systems use their power mainly to benefit the categories of people (the category of "men", in particular) that they belong to themselves. Your accusation is nothing but projection. As that's exactly how feminists and women's political groups act (exclusively for women), they assume men must act the same way, when in fact men fall all over each other to prove how much better they are than other men at catering to women's interests and pretty much ignore men's interests entirely, assuming that any of them could identify such.
12.23.2005 6:37pm
Bob Smith (mail):

A local study indicated that 20% or 30%, I forget which, of DV arrestees are women

That may be so, but lots of cities have feminists up in arms about that, and even have feminist groups "educating" police officers about DV. If the officer thinks he should arrest the woman, he shouldn't because it's all really the man's fault anyway, stuff like that. As a result, "arrest the man no matter what" is the defacto policy in DV cases in many cities.
12.23.2005 6:43pm
Visitor Again:
I much prefer a system in which the dispossession of the home is done by court order than by brute force. To equate the two is absurd. The pendulum has not swung the other way; that would mean women were evicting men by force.

And no one has said abuses in the system should not be corrected. But it should be done within the frameowrk of the system. If the system needs to be corrected, fix it through the legislative process instead of wailing about how feminists have made things unfair for male spouses. That's what the feminists did when the system was stacked against women.
12.23.2005 9:18pm
markm (mail):
"I don't see how anyone can want the garden-variety harrasser/stalker who is the subject of this law to legally own a firearm."

Please explain what difference this law makes? There are two possibilities:

1) The alleged harrasser/stalker obeys the TRO. Then it makes no difference whether he has a gun.

2) He disobeys the TRO. Do you really think that he'll get rid of his gun to obey one law while deliberately disobeying another? Not to mention that if he's a real threat, he's still a threat with just his bare hands.
12.23.2005 10:52pm
markm (mail):
"I don't see how anyone can want the garden-variety harrasser/stalker who is the subject of this law to legally own a firearm."

Please explain what difference this law makes? There are two possibilities:

1) The alleged harrasser/stalker obeys the TRO. Then it makes no difference whether he has a gun.

2) He disobeys the TRO. Do you really think that he'll get rid of his gun to obey one law while deliberately disobeying another? Not to mention that if he's a real threat, he's still a threat with just his bare hands.
12.23.2005 10:53pm
Bob Smith (mail):
>The pendulum has not swung the other way; that
>would mean women were evicting men by force.

What do you call obtaining a TRO and then getting the cops to toss your husband to the street? Unless, of course, she's not responsible because she didn't actually manhandle her husband herself.
12.23.2005 11:00pm
Visitor Again:
When done by TRO, I call it legal process.
12.23.2005 11:10pm
Public_Defender:
According to the court's docket, there will be a hearing the first business day after Christmas. My guess is that the order will be lifted at 9:31 a.m. on December 27, 2005:

12/22/2005 NTC: HEARING (CIVIL)
TEMPORARY RESTRAINING ORDER
EXPEDITED MOTION BY SPECIAL APPEARANCE TO QUASH TEMPORTARY
RESTRAINING ORDER
DEC 27, 2005 @ 9:30 AM

Source: http://www.nmcourts.com/newface/clookup/disclaimer.html (search for "letterman david")
12.24.2005 8:15am
Anon1ms (mail):
Bob Smith: "If the officer thinks he should arrest the woman, he shouldn't because it's all really the man's fault anyway, stuff like that. As a result, "arrest the man no matter what" is the defacto policy in DV cases in many cities."

No matter what? In "lots" of cities? I would really like to see some evidence of this -- what is your source?
12.24.2005 9:38am
JJ Glendenning (mail) (www):
If you are subject to a TRO then yes you can not be in possession of a gun. Now it won't be long before someone with a legal education they didn't take from a Cracker Jack box strikes this down. This lady is mentally ill, and the judge needs a refresher course in the LAW.
12.24.2005 11:41am
Neal Lang (mail):
I don't think there's any evidence that Letterman is an intimate partner of this woman.

Merely her word that:
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.
12.24.2005 6:41pm
Bob Smith (mail):
>When done by TRO, I call it legal process

When the TRO is fraudulent, as most are, I call it eviction by force, notwithstanding the fact that it was done under color of law.
12.24.2005 8:20pm
NickM (mail) (www):
That TROs are issued ex parte in domestic violence and civil harassment cases will always lead to TROs being granted that should not have been, because the judge has only heard one side of the story. To reduce the risk of error, live testimony subject to examination by the judge should be required where possible. I don't expect that this will weed out skilled liars, but it should prevent the issuance of TROs based upon fantastic allegations or poorly thought-out lies (or simply blatantly insufficient allegations).

Nick
12.26.2005 2:42pm