Can a VPO require disarmament?

[mons meg]

Short version: An acquaintance of mine is going through some drama with his now-ex over child custody. She filed a VPO against him making various claims that he was dangerous. The judge apparently put in the VPO that he had to turn in his firearms. I'm not a lawyer, but this seems a HUGE due process violation. I will also say that while I don't know the facts, the statements she made while applying for the VPO don't match her 911 call, and other problems with her story. Also, there are many other reasons to doubt her credibility on this issue which I won't go into here.

Shortly after their lawyers met to discuss the court date, the ex agreed to drop the VPO (the day before court). So, now he has his guns back after he had to turn them in to the local PD. I'm assuming his lawyer advised him it would be better to play along than make a big fuss about his pistols.

My big question here is, how is a VPO like that even remotely legal? I know federal and many state's laws prohibit PURCHASING while under a VPO or other domestic order, but to have to give up your firearms pending some sort of resolution in the courts is ludicrous to me. Has anyone else out there heard of stuff like this happening?

 

[SMS]

I believe the judge's order is backed up by federal law. It's colored in the shade of commerce...but I guess it applies somehow since the simple act of possessing something can be ruled to affect commerce. A key part in it is that the subject of the VPO has to have had the opportunity to participate in the hearing...

18 USC 922 G 8.

(g) It shall be unlawful for any person -
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
participate;
(B) 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; and
(C)(i) includes a finding that such person represents a
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;
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.

 

[mons meg]

SMS, in that case, you could make the argument the person subject to the protective order received some actual due process. In this case (as I understand it), it was simply being served with a VPO.

Also, I don't see how that last section (C)(ii) can hold up after Heller and McDonald, but it will take a pair of brass ones and a good lawyer to get rid of it.

 

[SMS]

Yeah, that's the problem...once the judge rules it, you have a long row to hoe to get relief if the ruling is not in line with the law.

 

[mons meg]

How crazy is it if you need Doug Friesen to handle your child custody case??

 

[SMS]

Crazy...and after seeing first hand how folks become judges in this state, it's no wonder you get rulings that aren't square with the law.

 

[reddog1]

Thats a load of crap, If your wife of GF gets pissed at you, leaves you, and knows you love your guns, all she has to do is file a protective order on you, and you are screwed.

 

[SMS]

Yup. So be nice to your ladies...and stay away from the nutjobs.

 

[ripnbst]

Yup. So be nice to your nutjobs...and stay away from other ladies.

I reworded it a little and this should also keep your guns in your hands.

 

[Billybob]

Restraining order abuse has become so common some lawyers now specialize in it, just another part of our legal industry.

http://www.salon.com/1999/10/25/restraining_orders/

http://www.avvo.com/legal-guides/ugc/false-complaints-of-domestic-violence-dv

http://laura-in-denver.hubpages.com/hub/Divorce-Dirty-Tricks-Restraining-Order-Abuse