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Barred from All Possession of Firearms With No Finding of Misconduct:

That's what happened in New Jersey to M.S. M.S. and his wife accused each other in 1997 of domestic violence, and eventually agreed to the entry of civil restraining orders against each other. Pursuant to New Jersey law, the state seized M.S.'s five handguns, and started forfeiture proceedings. Though the criminal complaints against M.S. stemming from his wife's charges were dismissed, the plaintiff and the prosecutor agreed to settle the forfeiture complaint by "allowing plaintiff 'the opportunity to sell' the five handguns 'to a registered dealer of firearms.'"

There was never any finding, by a criminal court or by the family court, of any misconduct on M.S.'s part, nor any admission by M.S. of such misconduct for purposes of the settlement. In fact, for whatever it's worth, the family court awarded M.S. custody of the couple's five children, and eventually dissolved all the restraining orders.

But now M.S. has a problem: In 2004, New Jersey enacted a statute, N.J. Stats. § 2C:58-3(c)(8), that outlaw the transfer of guns "[t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991' and whose firearm has not been returned." M.S. would like the right to get a gun, but his firearm was indeed seized because of his ex-wife's complaint (which didn't lead to any criminal or civil finding of guilt on M.S.'s part), and the firearm was indeed never returned — M.S. settled the forfeiture proceeding, with no admission of guilt, by arranging for the guns to be sold.

The state's view was indeed that M.S. is now barred from all possession of firearms, notwithstanding the absence of any finding of misconduct on his part. And a New Jersey appellate court agreed with the state.

I can report, though, that last week the New Jersey Supreme Court reversed the appellate court's decision, and held that § 2C:58-3(c)(8) applies only when "the bar to the issuance of a firearms card be due to some fault of plaintiff," such as a finding that the plaintiff had indeed done something bad. Here are the key passages:

Although our starting point is to "ascribe to the statutory words their ordinary meaning and significance," we recognize that sometimes a plain reading will lead to an absurd result that could not have been intended by the Legislature. For example, if N.J.S.A. 2C:58-3(c)(8) were to be read literally, a firearm seized as a result of a domestic violence complaint and not "returned" merely because the firearm was lost or misplaced by the police, or stolen while in police custody, would trigger the bar to the future issuance of a handgun purchase permit or firearms card....

Clearly, the Legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C:58-3(c)(8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons are impounded. A commonsense reading of the statute requires that N.J.S.A. 2C:58-3(c)(8)'s bar to the issuance of a firearms card be due to some fault of plaintiff. Therefore, in this case, at a forfeiture hearing in 1997, had plaintiff's firearms "not been returned" because plaintiff had been found guilty of a crime related to the domestic violence incident, because there was "probable cause to indict," or because the "domestic violence situation" continued after the issuance of the mutual restraining orders, then the conditions of N.J.S.A. 2C:58-3(c)(8) would have been met....

Only when a person's firearm is seized pursuant to the Prevention of Domestic Violence Act of 1991 and "has not been returned" for a reason articulated in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21(d)(3), is that person permanently barred from obtaining a firearms card. That is the only sensible interpretation of N.J.S.A. 2C:58-3(c)(8) and the only interpretation that is fully consistent with what the Legislature must have intended. Therefore, under N.J.S.A. 2C:58-3(c)(8), the reason for not returning a firearm could be established by proving any ground in support of a forfeiture at a proceeding conducted pursuant to N.J.S.A. 2C:25-21(d)(3) or by an admission made by a plaintiff in a consent judgment.

One can debate whether the result is correct as a matter of statutory interpretation, but it struck me as noteworthy in any case. Moreover, it seems to me that the Second Amendment — if incorporated against the states — would indeed require a rule that's at least this protective of gun owners; and that legislatures should in any event not enact laws such as the one at issue here, which on their face seem to disarm people without any finding of misconduct, dangerousness, or incompetence.

It's too bad that M.S. had to go through years of litigation to be entitled to own a gun, something that other adult, mentally competent Americans are and should be free to do, at least until they are found to have done something that may justify loss of that right. I leave aside what sort of showing should be required for such a loss of a right (except to say that surely some showing would suffice, for instance when someone is convicted of a crime that sends him to prison, where presumably he would not be allowed to possess a gun). Whatever the threshold, it wasn't met here.

OrinKerr:
One can debate whether the result is correct as a matter of statutory interpretation . . . .

That often appears to be the case when discussing NJ Supreme Court decisions.
12.29.2008 1:29am
unhyphenatedconservative (mail):
Are you sure there is truly no finding of DV? At least in California, the statutes are explicit that issuance of a permanent DV order requires a finding that the restrained party committed DV.
12.29.2008 1:36am
Eugene Volokh (www):
Unhyphenatedconservative: I saw no evidence of any such finding in either the New Jersey Supreme Court decision or the Appellate Division decision, and as I read the Supreme Court decision it seemed to take the view that there was no such finding (perhaps because the restraining orders were uncontested).
12.29.2008 1:46am
unhyphenatedconservative (mail):
Professor Volokh,
Have you looked at the statute itself? Most of our judges don't use magic words or even always make explicit findings, especially in uncontested or mutual restraining order cases. But a reading of the statute shows the finding is implicit in issuing the order. It mostly comes up as the DV finding applies to custody when I run into it.
12.29.2008 2:08am
Cornellian (mail):
But now M.S. has a problem: In 2004, New Jersey enacted a statute, N.J. Stats. § 2C:58-3(c)(8), that outlaw the transfer of guns "[t]o any person whose firearm is seized pursuant to the 'Prevention of Domestic Violence Act of 1991' and whose firearm has not been returned."

Clearly, the Legislature did not intend to prohibit the issuance of a firearms card under N.J.S.A. 2C:58-3(c)(8) because a firearm was not returned due to sheer fortuity, e.g., a fire destroying the area where weapons are impounded.


I look forward to the howls of protest from all those textualists and strict constructionists at this "activist" finding of an exception not actually in the text of the statute.
12.29.2008 2:17am
Vernunft (mail) (www):
Yes, there are a bunch of strawman strict constructionists going after that...
12.29.2008 2:22am
Roger Schlafly (www):
If M.S. had lost this decision, what could he have done next? File a federal civil rights lawsuit under 42 USC 1983 and the 2A?
12.29.2008 2:47am
Oren:
Sloppy legislating and the court there to wipe it up. I wonder if this is a moral hazard for legislators writing bad law (or if such a thing even exists).
12.29.2008 3:43am
Malvolio:
I look forward to the howls of protest from all those textualists and strict constructionists at this "activist" finding of an exception not actually in the text of the statute.
I don't know if I'm a textualist and I don't know if this constitutes a howl, but it seems to me the court is wrong.

I think it would be difficult to word any law so that a hyperliteral interpretation in the face of unusual facts would create an absurd result and the use of the unadorned word "returned" in this statute seems to make an absurd result all the more reachable.

But in the instant case, the interpretation is not hyperliteral, the facts are not unusual, and the result is not absurd -- although arguably unjust and perhaps even unconstitutional.
12.29.2008 4:02am
Eli Rabett (www):
So how many spice are killed by their spouse under restraining orders? There is a real problem here but it is not the NJ law.
12.29.2008 8:50am
Tim Torrent (mail):
I'm not sure the "activism" argument flies here. What we're seeing between Heller and a few other cases is that the right to firearms is becoming a fundamental right under the US Constitution if it isn't already under respective state Constitutions. If we do get down to the classic intermediate and strict scrutiny tests, there's no way that a person can lose rights in the absence of any violation. It simply won't pass substantive due process (punishment doesn't relate to conduct), procedural due process (punishment without a hearing), ex post facto (new punishment based on past events), and equal protection (everyone else who hasn't committed any misconduct still gets guns, why doesn't he?). Using the basic constitutional rights isn't "activism". It's simply the checks and balances. I haven't read the NJSC opinion to see whether they did use these tests, but the quoted passage sounds like substantive due process.

Activism is more like MGM v. Grokster, where the 9th Circuit applied the law to the letter, and SCOTUS simply made up new law to find Grokster liable.

But you should also remember that the courts have overwhelmingly stated retroactive sex offender/predator registration doesn't violate substantive/procedural due process, equal protection, and ex post facto because the registration is a "civil commitment" instead of a "punishment". While no one wants to side with sex offenders/predators, I'm not sure it was proper to open that floodgate. CA has been trying to pass various legislation for the last few years that would require registration for anyone simply arrested for DV, and they're calling it a civil commitment straight out the door.
12.29.2008 8:55am
whit:
i've made this claim many times before... people constantly decry the "war on drug" as eroding rights, but imo and ime, the war on domestic violence is AT LEAST as bad in this respect, and probably worse.

also, when criticizing the war on DV, one is in a worse position because who, after all, wants to criticize the war on DV and risk being called "a proponent of DV" or "a proponent of women being abused" etc.

also, the average joe is far more likely to get caught up in a DV issue than a drug issue. it is far more likely to have a false complaint for example and a DV arrest than the same thing happen in a drug case. all it takes is a domestic partner, roommate etc. getting really pissed off and lying to the police, and even absent physical evidence, you are probably going to jail, and in my jurisdiction getting an automatic no contact order (temporary) without even an opportunity to plead yer case.

i am also mandated to make arrests (no discretion) in many DV misdemeanors. most drug misdemeanors were i work are a warning or citation, not arrest usually, and even felonies don't require a MANDATORY arrest.
12.29.2008 9:52am
Tim Torrent (mail):
@whit

I completely agree with you. Too many people equate "defending the rights of {insert villainous class here}" with being in favor of those behaviours.

Very few people wanted to defend sexual predators/offenders when their rights were decimated. Although I think it's absolutely deplorable what these people do, the fact that we treat people like this opens the floodgates. DV is definitely next. With DV, since the conviction rates are so low, the legislators aim to have the punishments trigger on arrest, not conviction. The problem with DV is that the couple gets in a fight, the cops arrest the guy, and the girlfriend/wife refuses to cooperate because she still loves the guy. At most, the state proceeds on resisting an officer (or resisting arrest, or whatever the local equivalent is) and possibly a battery on a law enforcement officer. But even those cases have a problem, because if the guy kicks the girl out of the house, she can't give consent to enter his home, and the officer is then illegally entering the home. And in the resisting or bat LEO cases, most states require the officer to fill out some sort of injury report which includes pictures. The vast majority of the time, either the pictures show nothing, or the officer didn't even take the pictures. You'll be lucky to find a jury that will convict on physical evidence that shows nothing, or an absence of physical evidence where the state has a statutory requirement to create that evidence.

But either way, the overbreadth will continue to expand. I recall reading an article about how the fed wants the ability to permanently retain DNA for anyone simply arrested, even if there's no suspect DNA evidence in the principle case.
12.29.2008 10:10am
whit:
just from my experience, i would say less than 1 in 50 DV arrests result in a resisting charge.

at least where i am.

i agree about the civil side. it doesn't take a criminal conviction to result in stripping of gun rights AND right of free association. in many cases, the judge issues the no-contact order upon arrest, even if the "victim" doesn't want one.

also, much like rape is simultaneously the most underreported (many go unreported ) and overreported (false reports) crime (thanks alan dershowitz), so is DV, because there is massive incentive to lie, rarely any witnesses, and unlike most crimes, mandatory arrest with PC.
12.29.2008 10:15am
Eugene Volokh (www):
Unhyphenatedconservative: The statute requires only a finding of some act of "domestic violence," a term that includes, among other things, "a communication ... in offensively coarse language" "with the purpose to harass." So even if the finding was actually made, rather than just assumed given the mutual agreement to the entry of the orders, this doesn't require finding of any actual violence (even by a preponderance of the evidence). Nor is there anything in the opinions that suggests any such finding of actual violence was made.

Note also that the statute provides, and from the historical notes had provided at the time, that "in addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty." But the New Jersey Supreme Court expressly noted that the trial court did not include such a provision in its restraining order.
12.29.2008 10:58am
whit:
this is true, prof. volokh. in the field of domestic violence, there has been a lot of "defining deviancy up". iow, many domestic violence advocates, etc. will refer to abusive language as "domestic violence.". this allows them to skew the statistics for "victims of domestic" violence and create victims out of whole cloth.

the standard for orders (at least in my state) is a civil standard, once issued - gun rights go away, there is no right to a jury, and the temporary orders are issued without the respondent even having a chance to give their side of the story (unless they did so to the police upon arrest).

at my precinct, i have seen pamphlets in the front lobby that define "domestic violence" as abusive words, "controlling behavior" and other such stuff far removed from actual assaults or criminal threats.
12.29.2008 11:04am
Eli Rabett (www):
I have no problem with learning how to better identify domestic violence cases. I do have a huge problem with defining it away as many are doing here. The key is that the same people who try and pretend there is no problem, when the stuff hits the fan start attacking those who, in their view, did nothing about it, e.g. social workers, police, judges, etc. They react to this naturally.

Is there a solution. Well at least a partial one would be to have more people available to handle the case loads, but, of course, that would require raising taxes so there were more resources. Right now domestic violence is handled on a triage rather than a treatment basis, which makes bloodbaths inevitable.
12.29.2008 11:11am
whit:

Right now domestic violence is handled on a triage rather than a treatment basis, which makes bloodbaths inevitable.



that's simply not true (at least where i live). there are all sorts of "treatment" options, to include anger management classes, etc.

there are also DV advocates, who are civilians hired to help "victims" along the process, which gives them more help than they would get if they were the victim of any other type of crime.

DV is first of all, two pronged (civil and criminal), which distinguishes it (DUI is another example).

it has TONS of resources devoted to it, tons of training (compared to many other types of investigations), etc. etc.

many agencies in their proactive stances imo go way overboard, for example documenting in police reports "verbal DV's" which essentially amounts to non-criminal intelligence (which liberals decry---except in DV cases), etc.

stabbings, shooting, etc. are handled MUCH more in a triage fashion than DV's, contrary to your claim
12.29.2008 11:25am
Dave N (mail):
I agree with Whit and Tim Torrent.

I am against physical abuse between spouses and significant others and am offended when DV gets "dumbed down" to include "controlling behavior" and "angry words."

Even though I am not a gunowner, and the Second Amendment is not my area of expertise (though I have appreciated and learned a great deal from the many Heller posts), I have always been deeply disturbed that the right to own a firearm can be lost forever due to something less than a criminal conviction--particularly if one such mechanism is an ex parte hearing with no right to defend oneself.
12.29.2008 11:33am
whit:
just to clarify ... you do have the right to 'defend oneself" in an order hearing.

my point was the INITIAL temporary order is issued ex parte with no opp. to do so.

a date is then set for a hearing to make the order permanent, or lift it. that is where one has the right to testify.

it is still judge only (no jury), a civil standard, etc.
12.29.2008 11:38am
Kazinski:
Eli Rabbet:
Well at least a partial one would be to have more people available to handle the case loads, but, of course, that would require raising taxes so there were more resources.

That may well be the case in some jurisdictions but where I live in Seattle, prosecutors spend so much time and resources on domestic violence cases it discourages some people from involving the authorities. They routinely put in no contact orders which, in many situations can just devastate a family:

A no-contact order, she says, is supposed to be for the benefit of someone who wants to be protected. It's not "to have all the power of government coming in and saying, 'We know better than you; you need to get over this guy.'" The state's policy, she says, is just another way of overpowering a person who's supposedly already been overpowered by her partner.
12.29.2008 1:26pm
Bruce Hayden (mail) (www):
It still bothers me that you can lose the right to own a handgun for the rest of your life for something that most, if not all, of us go through.

In my case, I did raise my voice at my ex-wife one time, and a couple of years later, during thearapy preceeding our divorce, she indicated that it scared her. If she had wanted to, she probably could have turned it into a claim of DV. Luckily for me, she isn't the type to go that route absent physical abuse, and so I can still legally own a handgun.

I might be ok with a criminal conviction standard, but even there, there are plenty of (mostly) guys who plead out with no jail time just to make it go away, and then find that they have forfeited their right to own a handgun.

The reality I think is that there is a big difference between DV and sexual crimes, and, indeed, why should sex offenders be prevented from owning guns in the first place? Surely there has never been a finding that they are any more physically than ordinary citizens.
12.29.2008 1:52pm
Andy Freeman (mail):
> So how many spice are killed by their spouse under restraining orders?

Isn't the relevant question "how many spice have been saved by restraining orders?" And, just to complete the set "how many spice have been endangered by restraining orders?" (We regularly hear that the possession of safety equipment may make people more reckless. If true, that should also apply to restraining orders.)
12.29.2008 2:17pm
Dilan Esper (mail) (www):
i've made this claim many times before... people constantly decry the "war on drug" as eroding rights, but imo and ime, the war on domestic violence is AT LEAST as bad in this respect, and probably worse.

I understand what you are saying, but what I would say is that cops, police chiefs, and policy makers haven't figured it out yet. What I mean by that is that we had an old regime that was clearly unacceptable, a regime in which lots of battered women didn't even trust the police and lots more called them and didn't receive any protection, so that once the cops left, they got an even bigger beating.

These mandatory rules that you decry are thus a response to a real problem which was how do you protect the victims of domestic violence who are vulnerable to reprisal when they call the police? And it's a really difficult problem, because as overbearing and subject to abuse as the current system can be, at least it means that a woman who really is beaten by her husband can receive protection in those first few critical hours when he is filled with rage because she reported his actions to law enforcement.

I don't claim to be an expert in policing, so I don't know what the right balance to strike here is. But I would urge great caution about bringing us back towards the old regime where battered women were sometimes sent right back in to be beaten by their husbands or boyfriends some more.
12.29.2008 2:30pm
Harry Eagar (mail):
'at least until they are found to have done something that may justify loss of that right.'

You mean like the guy at my paper who got out his .45 and shot his teenage son 7 times (only 4 hits though) for not cleaning up the room?

We got out a copy of an old company newsletter in which he had said his hobby was target shooting but that when not using his guns, he kept them under double lock and key because of the danger to the children.

His wife had made a DV complaint but withdrawn it (back in the days when a wife could do that).

Your Second Amendment at work.

It doesn't look as if he'll make bail, but at a bail hearing a couple days ago, his lawyer told the judge that if he does, he can come back to his old job. You've no idea how secure I feel about that.
12.29.2008 3:17pm
Melancton Smith:
Yes, we should convict everyone for having the potential to commit such a crime!

Also, all men are pre-rapists, since they own the necessary equipment!

Might as well slap me with a pre-DV charge since I have a loud mouth and a fist!

Hitler wrote Mein Kampf and gave speeches that led to genocide! There's your First Amendment at work!

And for disagreeing with me, you sir, are worse than Hitler!

[Ok, so I go from Sarcastro to Greg Gutfeld in one post...sorry]
12.29.2008 3:46pm
Kirk:
Harry,

Your timeline is a bit unclear. Since you say "make" bail, in the present tense, I assume this just happened--but then how many years ago did the wife make the withdrawn DV complaint?

Also, do you mind saying where this is? I seem to recall you have a Hawaii connection, but not whether that's where you are from, or where you are now. It would help to know the actual state DV and bail regimens this is happening under, and whether the state itself is conspiring to prevent you from following adequate self-defense measures in response to the bad guy's possible return to work, or only your employer.
12.29.2008 4:56pm
Gabriel McCall (mail):
My argument would probably have been that permitting the plaintiff to sell his weapons constituted a "return". A gunowner cannot sell a confiscated weapon while it's still confiscated; ergo, since he did sell the guns they were not "confiscated" at the time of sale even if they were still in the court's physical custody.
12.29.2008 5:59pm
whit:

understand what you are saying, but what I would say is that cops, police chiefs, and policy makers haven't figured it out yet.


plenty of cops (myself included) figured this out a long time ago. we don't make law though.

the legislators passed this stuff because it's politically correct, "proactive", etc.


What I mean by that is that we had an old regime that was clearly unacceptable, a regime in which lots of battered women didn't even trust the police and lots more called them and didn't receive any protection, so that once the cops left, they got an even bigger beating.




of course this is correct. and of course, the pendulum has now swung too far in the OTHER direction (as is oft the case with stuff like this).



These mandatory rules that you decry are thus a response to a real problem which was how do you protect the victims of domestic violence who are vulnerable to reprisal when they call the police? And it's a really difficult problem, because as overbearing and subject to abuse as the current system can be, at least it means that a woman who really is beaten by her husband can receive protection in those first few critical hours when he is filled with rage because she reported his actions to law enforcement.


nobody i know disagrees with this.


don't claim to be an expert in policing, so I don't know what the right balance to strike here is. But I would urge great caution about bringing us back towards the old regime where battered women were sometimes sent right back in to be beaten by their husbands or boyfriends some more.



there is a wide difference between bringing us back to the old regime (which would be terrible) and making common sense changes that would actually respect people's civil rights and add balance to the system.


I seem to recall you have a Hawaii connection,


gawd, hawaii. hawaii is phenomenally liberal, and the amount of state power with DV's was ridiculous.

when i worked there, if we went to a "verbal DV" (iow, an argument), and a party alleged that there was an incident of physical dv in the last year - even if never documented, and even though there was no proof apart from "6 months ago he hit me" we were required to issue a "24 hr warning citation" which forced the other party to abandon the house for 24 hrs (to give time to get an order) or longer (if a weekend).

we could eject people from their house, and arrest them if they came back based on an allegation of some past offense in conjunction with today's verbal argument.

it was the most ridiculous example of excessive govt. power i ever personally had to wield.
12.29.2008 6:00pm
Kirk:
Oh, I'll just go ahead and make my point assuming that it is Hawaii that we are talking about. In which case, yes the state is very much part of the problem here, as it prevents you from legally bringing any kind of handgun with you to work, to aid in your self-defense. Furthermore, this situation is not some esoteric wisdom available only to the elect, but pretty much everyone there, including your bad-guy fellow employee, knows it. (I.e. he knows that almost certainly no one else at work will be armed.) This is a recipe for disaster.

Whether your employer would permit you to do so, if it were legal, is a different question; but unless they scanned everybody with metal detectors at all entrances, they woudln't know if you did decide to bring your concealed handgun to work with you while the crisis passed. And if they did apply that level of screening, including armed guards to enforce the metal detectors, then arguably you would be safer at work than you would be anywhere else.
12.29.2008 6:16pm
Dilan Esper (mail) (www):
the legislators passed this stuff because it's politically correct, "proactive", etc.

Whit, there is quite a bit of academic material from feminists like Angela Browne in the 1970's and 1980's documenting what happened to battered women when they called the police in many jurisdictions. It wasn't pretty, and these laws you decry were not passed to be "politically correct", unless that is a euphemism you use for "saving the lives of oppressed women".

From the rest of your post, I don't think you really disagree with this. I am certainly open to your arguments about where DV laws go too far. I just want to tread carefully in this area because there's such a sorry history that preceded these laws.
12.29.2008 6:30pm
whit:

Oh, I'll just go ahead and make my point assuming that it is Hawaii that we are talking about. In which case, yes the state is very much part of the problem here, as it prevents you from legally bringing any kind of handgun with you to work, to aid in your self-defense. Furthermore, this situation is not some esoteric wisdom available only to the elect, but pretty much everyone there, including your bad-guy fellow employee, knows it. (I.e. he knows that almost certainly no one else at work will be armed.) This is a recipe for disaster


when i was in the academy in hawaii, we were talking about carrying concealed w/o a permit. it's a felony. i asked "what does a permit look like?"

the instructor (the frigging INSTRUCTOR) who had taught the class for years said he didn't know what a permit looked like.

lol.

that's how hard it is to get one. he had to come back the next day with a sample. he said only a few were issued in the entire county - one to an aide in the mayor's office, a couple to the civilian investigator in the county district attorney office, etc.

in my entire career there, i never ran into anybody with a permit.

heck, as cops we could work there our entire career, and as i understood it we couldn't carry either, once we retired.
12.29.2008 8:25pm
whit:
dilan, what you say is true, but...

how does that justify (for instance) the VAWA and other legislation that strips people of their right to free association and right to carry on the slimmest of premises?

i have had to arrest people "hanging out" with their boy/girlfriends because some judge determined that the other half had no right to associate with them DESPITE the "petitioner" (who didn't want an order) telling the judge she/he didn't want an order.

giving big brother the power to tell you "you are a victim whether you think you are or not, and we are going to legally prevent your partner from being anywhere near you whether you want to associate with them or not" is disgusting.

i've talked to plenty of defense attorneys (and even a few honest prosecutors) who think the thing has spun way too far.
12.29.2008 8:29pm
Harry Eagar (mail):
Kirk, I am in Maui. This particular homicide happened last week.

The alleged DV incident (exact circumstances yet unclear) was a decade ago.

I am in agreement with whit about Hawaii's DV law not providing even a shred of due process. First to call the cops wins.

Strangely enough, people in Hawaii do not feel unsafe at work even though unarmed. There was that famous shooting of 7 in Honolulu about a decade ago. It is not obvious that if the workers at the computer store had been armed, any more would have survived.

Workplace shootings are not unknown in Hawaii (but are unknown on Maui) but are very rare. Fantasies about whipping out one's CW to save the day are fantasies.

I was a lot less persuaded, when I lived in gunslinging states, that I was safe at the workplace than I am here in Hawaii.

But workplace violence and domestic violence work rather differently. Despite Hawaii's stiff DV laws, spousal killings are pretty common. They show a definite cultural component — the loudest agitators against DV are explicitly Filipinos aiming at Filipinos.

The killer at work is a Filipino, precisely an Ilokano immigrant. I didn't know him, union rules discourage me from visiting his department, but others say he was not trouble at work. In fact, he was deputy supervisor of his press crew.

My bottom line: If he'd been a knife thrower, his son would still be alive.
12.29.2008 9:51pm
Kirk:
Harry,
people in Hawaii do not feel unsafe at work [emphasis added]


Except you, that is: "... he can come back to his old job. You've no idea how secure I feel about that."

I should hasten to point out, as hinted at by the word I highlighted from your quote here, I find the emphasis on feeling safe rather than being safe is somewhat misplaced.

Now, it's not that I want to urge people to carry handguns when they don't want to; but I do feel the urge to push back against the assertions that guns are worthless for self defense, and that the state of Hawaii isn't harming you (individually and collectively) by prohibiting you from lawfully carrying what is currently the best self-defense tool available, if and when you do decide that your situation warrants it.

If he'd been a knife thrower, his son would still be alive.
Knife wounds are easily fatal.
12.29.2008 10:38pm
whit:

Kirk, I am in Maui. This particular homicide happened last week.

The alleged DV incident (exact circumstances yet unclear) was a decade ago.

I am in agreement with whit about Hawaii's DV law not providing even a shred of due process. First to call the cops wins.



kirk, i used to live maui. kihei side. i agree about the DV laws in hawaii.

hawaii is also a very weird state in that it is VERY liberal when it comes to search/seizure/miranda and all that. but given a conviction, it is relatively harsh on penalties.

the worst violent act i dealt with on maui was the daniel kosi incident. that guy was a completely evil scary guy.

i wonder if they still have 24 hr warning citations in hawaii. possibly the most egregious thing i have ever dealt with in law enforcement.

i did hear they changed the age of consent (it was 14 when i was there).
12.29.2008 10:39pm
Kirk:
Whit,
when i was in the academy in hawaii, we were talking about carrying concealed w/o a permit. it's a felony.


Wow. Here in WA (as you are of course aware) unlicensed concealed carry is only a misdemeanor; and carrying a loaded handgun onto school grounds or other restricted places only raises that to a gross misdemeanor.
12.29.2008 10:54pm
Kirk:
Whit, can you say a bit about the 24 hour warning citation? (Please, EV, it's maybe a little bit on topic???)
12.29.2008 10:56pm
Roger Schlafly (www):
Despite Hawaii's stiff DV laws, spousal killings are pretty common.
I doubt that DV laws do much to deter murder at all. Restraining orders can deter low-level harassment, but not murder.
12.29.2008 11:03pm
whit:
kirk, in maui PD we were required to document all "verbal DV's" on an incident as

"Abuse of Family and Household Members (verbal)"

that was the classification.

which in itself is absurd. It's also collecting non-criminal intelligence, but that was the policy.

the
"face page" had a section for the bad guy and the good guy.

i asked my sgt. which person to put in which section. whoever was "more verbal". so they get listed as a SUSPECT even though there is no crime, on the AOFAHMV face page.

that's dumb enough.

if a party alleged ANY physical violence (and i believe also threats, which in hawaii are called "terroristic threatening") had occurred in the last YEAR, then we had to issue a warning citation.

note that there didn't need to be a police report, or any EVIDENCE that the alleged assault occurred oh so many months ago. just the allegation.

we wrote out a warning citation on scene and gave a copy to the "bad guy". it clearly warned him that if he went back to the house within 24 hrs of issue, he would be arrested for Abuse of Family and Household Members - Violation 24 hr warning citation.

that was a gross misdemeanor iirc.

no due process, no judge. issued by the COPS!

if we issued the order on a friday night, it was good until Monday night (to give the other person a chance to get an order).

so, based on an ex parte, non-sworn allegation of a past crime with no evidence required apart from the allegation, as long as the cops were there for a VERBAL argument already, we issued the citation and BANISHED somebody from their house with no due process, no probable cause, etc.

it bothered me then. it bothers me now.
12.29.2008 11:11pm
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12.30.2008 2:42am
mainfloorguy:
Since the 2nd Amendment has not been incorporated into the 14th Amendment, would someone please point out the analogous provision in the NJ Constitution? Thank you.
12.30.2008 11:27am
Tim Torrent (mail) (www):
@mainfloorguy

What I think we're seeing is that the 2nd amendment is becoming incorporated into the 14th amendment. While the NJSC never mentioned "constitution" or "due process", the entire reasoning goes down due process and ex post facto:

"Therefore, plaintiff is entitled to a hearing to determine whether, at the time he entered into the consent judgment, the Prosecutor’s Office was capable of proving that he had committed an act that warranted the forfeiture of his firearms." The hearing is the procedural due process, and the nexus of his action and a warranted forfeiture is the substantive due process.

And the trial court applied ex post facto (pg 10): "the Gun Control Law in 2004 should not apply retroactively because plaintiff could know only those laws that existed when 'he entered into the consent order' in 1997"

"Because a hearing was never conducted, whether the
Prosecutor’s Office would have succeeded on its forfeiture
petition is entirely a matter of speculation." (pg 17) more due process.

There are plenty of cases where SCOTUS or an appeals court says something along the lines of "the court below didn't use the magic words to say a specific right was being infringed, but that's what their analysis entailed."
12.30.2008 12:28pm
mainfloorguy:
@Tim Torrent

Thank you very much for the thoughtful explanation. My original question, however, remains unanswered. Anyone else? Thank you.
12.30.2008 12:52pm
Matt Kyrle (mail):
Whit,

I find myself simultaneously pleased and troubled by the fact that you are a police officer. Pleased because:
a) you are clearly intelligent enough to have a good understanding of the issues here

b) you are on this blog at all which indicates an interest in deepening and broadening that knowledge further

c) you recognise* that the law in this area is "ridiculous"ly "excessive"

d) the presence among fellow officers of someone with such characteristics can only be a good thing


BUT, troubled by an apparent disassociation of personal responsibility for your actions
"it was the most ridiculous example of excessive govt. power i ever personally HAD to wield."


SO...
1) Given that you are prepared to enforce such egregiously unjust laws and policies as currently exist, and that you know are already clearly unconstitutional, and given that the political winds probably are blowing so as to make such laws and policies even more extreme before they become more moderate, please can you explain your decision process regarding the point at which, as things become more extreme, you personally decide you cannot in good conscience continue to enforce the law, at least in this area? What does that point look like?

2) How could/would such resistance/refusal manifest itself? Are US cops allowed to strike? If not, for officers whose limits of conscience lie closer to the Constitution than the prevailing law/policy, resignation would seem to be of limited value, diluting as it would the forces of moderation.


Regards,
Matt



* The Queen's English!
12.30.2008 8:28pm
Harry Eagar (mail):
OK, Kirk, I AM safe at work on Maui, largely because people don't go around armed.

I've had armed men come into my place of work in other states. None of 'em was out for blood at the time, but one was a notorious mental case who had a long record of DV. Lucky for me, I guess, he liked reporters.

I've been assaulted with a variety of weapons during my career, including rifles, knives, a car and a pool cue. On Maui, nothing more lethal than a rock. I like Maui better.
12.30.2008 9:26pm
Kirk:
Harry,

Are you retracting your earlier statement then?
12.30.2008 10:15pm
Kirk:
Matt,

I'm a resident of the state where whit now resides and works, and though I don't think I live or work in the jurisdiction actually covered by his department, I most likely pass through it at least occasionally.

I will tell you this: I would a hundred times rather have whit and those who think like him in charge of enforcing the laws, even the bad ones, than I would anyone who didn't express those kind of misgivings!
12.30.2008 10:43pm
whit:

SO...
1) Given that you are prepared to enforce such egregiously unjust laws and policies as currently exist, and that you know are already clearly unconstitutional, and given that the political winds probably are blowing so as to make such laws and policies even more extreme before they become more moderate, please can you explain your decision process regarding the point at which, as things become more extreme, you personally decide you cannot in good conscience continue to enforce the law, at least in this area? What does that point look like?




it's really quite simple. i have to be a pragmatist. there is no sentient cop on earth (or prosecutor) who does not have to enforce laws he disagrees with and/or thinks are unconstitutional.
fwiw, i personally think that any state that (effectively) prohibits concealed carry, such as hawaii, is violating the constitution. yet, i was a cop there. go figger.

the alternative is far worse. that only non-thinking/caring robots who always agree with state power can become cops. is that what we want?

it's like that old saw about god. is it right because god wills it, or does god will it because it's right.

i KNOW some of the laws i have to enforce AREN'T right.

ASIDE from DV law, i get to exercise a fair bit of discretion. a wise street cop (see for example bumper morgan in the old wambaugh books) is a problem solver. it's not about "how can i apply the law to GET somebody". it's about solving problems, keeping the streets safe, helping people, stopping predators, etc.

but we operate under a rule of law. ALL of us.

a cop, for example, who thinks miranda is bad law can't selectively choose not to give miranda warnings, for example.

i cannot CHOOSE not to enforce DV laws unless i want to expose myself to civil liability, and get fired.

there are MANY areas where cops have a fair bit of discretion. DV laws offer about the least amount of discretion of any area of law, for example, they impose mandatory arrest, wherein most other crimes (practically all) do not require a mandatory arrest.

there is certainly a point wherein laws become too ridiculous such that i would have to turn in my badge, but we aren't there.

if we ever imposed "hate speech" laws like canada, etc. has that would probably do it for me.

fwiw, defense attorneys have to offer a vigorous defense for people THEY know are guilty, and do their best to obfuscate the evidence that would convict their guilty clients. yet, they sleep at night. i do too.


2) How could/would such resistance/refusal manifest itself? Are US cops allowed to strike? If not, for officers whose limits of conscience lie closer to the Constitution than the prevailing law/policy, resignation would seem to be of limited value, diluting as it would the forces of moderation.


US cops are not allowed to strike.

for a good street cop, the penal code is a tool. it's not the end. it's a means to the end. lawyers tend to reify the law. that's natural, considering their job. cops, (me particularly) tend to view the law as clumsy, inefficient, and often a very blunt instrument. you can know the law better than any cop in the world and still be a terrible cop. it's simply a small part of what we do.

we gotta act within the framework. in many circ's it's unjust, unconstitutional, callous, stupid, etc. it's the worst system in the world... except for all the others :)
12.31.2008 12:21am
whit:

OK, Kirk, I AM safe at work on Maui, largely because people don't go around armed.



maybe in your (imo unjustified and unsubstantiated ) opinion, you are.

correlation =/= causation.

there are any # of places where people walk around armed (frequently) that are far safer and lower crime than maui, and plenty of places, like maui ... where firearms are effectively banned... that are far less safe.

i worked and lived in maui. it is a VERY different culture than many other areas. it also, fwiw at least when i was there, had the highest crime in the state.

maui has a horrendous property crime problem, and a nasty crystal meth epidemic (i can't tell you how many spracked out teenagers i saw there), but you are correct - violent crime is relatively rare.

maui is a very backwards place. in some ways that sucks. in others, it's very nice. when it comes to violent crime (animals such as daniel kosi excepted), it's very nice. it's kind of like the 50's where it was relatively common to solve problems with fisticuffs, but it ENDS there.

i can tell you that fisticuffs as a solution to minor disputes is WAY more common (and rarely makes its way into the police blotter) in maui than where i work now. heck, *i* had to fight with way more people just to get them into handcuffs, but it was (relatively) good natured, of the "i'm not going to jail without a scuffle" variety, and we usually wouldn't even charge the resisting. it was just accepted.

here in the passive-aggressive pacific NW, people are so afraid of confrontation, etc. it's ridiculous. in hawaii, minor fistfights are no big deal. heck, we had several AMONG cops in our back parking lot before roll call, and that was accepted as a way to solve problems. that would never happen here.

you can't compare two radically different cultures, and assume the reason that gun violence is relatively rare on maui (and violence in general) is because of the gun laws. you are not looking at any # of other disparate variables.
12.31.2008 12:28am

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