Can a VPO require disarmament?

[HMFIC]

I feel I should restate that the individual involved in this case was not present at any adversarial hearing, he was simply served with the VPO. So I don't see how he could have been disarmed under Lautenberg. OK law does not seem to authorize preemptive disarmament, so I'm highly curious how this practice is remotely legal. "Because a judge said so" is not the rule of law.

Yup... that's the way it works when they file an emergency VPO. It's an ex parte hearing where they stand before the judge and offer some explanation of why they feel they need it. If there was a relationship of some kind, it's just about automatic. Either way though, the standard is very low at that hearing and gives the person requesting it much benefit of the doubt (as should probably be). At this stage of the game, it's only a temporary order.

When the REAL hearing is scheduled, then the other party gets to show up and challenge everything to keep it from becoming a permanent order. Here is where the rubber hits the road and I don't have any insight as to how easy it is for the person who took it out to gain a permanent order without some serious evidence. I would hope that judges weigh it very carefully.

 

[Billybob]

Yup... that's the way it works when they file an emergency VPO. It's an ex parte hearing where they stand before the judge and offer some explanation of why they feel they need it. If there was a relationship of some kind, it's just about automatic. Either way though, the standard is very low at that hearing and gives the person requesting it much benefit of the doubt (as should probably be). At this stage of the game, it's only a temporary order.

When the REAL hearing is scheduled, then the other party gets to show up and challenge everything to keep it from becoming a permanent order. Here is where the rubber hits the road and I don't have any insight as to how easy it is for the person who took it out to gain a permanent order without some serious evidence. I would hope that judges weigh it very carefully.

I've been to a couple,(none were mine) everyone should attend some VPO hearings, but don't hold your breath waiting for serious evidence or careful consideration.

 

[Billybob]

I feel I should restate that the individual involved in this case was not present at any adversarial hearing, he was simply served with the VPO. So I don't see how he could have been disarmed under Lautenberg. OK law does not seem to authorize preemptive disarmament, so I'm highly curious how this practice is remotely legal. "Because a judge said so" is not the rule of law.

It is in a courtroom, a lawyer told me and they never lie right?

 

[mons meg]

Yup... that's the way it works when they file an emergency VPO. It's an ex parte hearing where they stand before the judge and offer some explanation of why they feel they need it. If there was a relationship of some kind, it's just about automatic. Either way though, the standard is very low at that hearing and gives the person requesting it much benefit of the doubt (as should probably be). At this stage of the game, it's only a temporary order.

When the REAL hearing is scheduled, then the other party gets to show up and challenge everything to keep it from becoming a permanent order. Here is where the rubber hits the road and I don't have any insight as to how easy it is for the person who took it out to gain a permanent order without some serious evidence. I would hope that judges weigh it very carefully.

Ok, but now we have the ability to get Lautenberg thrown out as a violation of Due Process after the McDonald case was decided, no? A judge should not be able to infringe an individual Constitutional right in an ex parte hearing without possibly becoming a target of a 1983 lawsuit. At least in MY world.

How is the disarmament substantially different than a "prior restraint" First Amendment violation. Judges get in trouble for those on a regular basis when they issue improper gag orders and such, don't they?

 

[vvvvvvv]

Ok, but now we have the ability to get Lautenberg thrown out as a violation of Due Process after the McDonald case was decided, no? A judge should not be able to infringe an individual Constitutional right in an ex parte hearing without possibly becoming a target of a 1983 lawsuit. At least in MY world.

This is a pre-McDonald infringement of the Second Amendment. Heller and McDonald are very clear that pre-existing infringements are to be presumed Constitutional until specifically ruled upon by the Supreme Court. It's a byproduct of using (fundamentally flawed) Due Process incorporation doctrine.

 

[mons meg]

Well, let's hope for a similar case to get certified in the near future. I'm of a mind that VPOs in general of of very limited utility in actually preventing crimes of violence, with a potential for abuse that far outweighs said utility.

 

[SigInBoots]

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?

I read through the posts but can't recollect whether you corrected to say that this acquaintance does not, in fact, actually have his guns back now even though the ex dropped the VPO. I'm sure everyone here would love to know the weak excuse that was given for that, but it's your thread and your story, so I'll let you share it or not.

 

[mons meg]

Ah yes, the story gets better. SIB and I both know this person from school, etc. He texted me to tell me that the local PD is holding onto his guns for SIX MONTHS per their policy, even though the temporary VPO was dismissed. Said he was told it was a "cooling off" measure. His story checks out on OSCN .

I encouraged him to ask his current attorney (family law specialist) what she might be able to do, and possibly to get a consult from a local specialist like Doug Friesen if they can't get the judge to send over an order to the City Attorney. Policy is NOT the law.

Now, for all of you still following this: WTF....... how can the local PD go above and beyond the judge's order and hold personal property like this? 6 months is long enough to be REALLY annoying, but short enouh that I bet most lawsuits will take longer to process than simply waiting them out. He can go legally buy NEW guns, he just can't have his other ones back? Does he not have a pretty good case here on a 4th or 5th Amendment complaint?

 

[Glocktogo]

Ah yes, the story gets better. SIB and I both know this person from school, etc. He texted me to tell me that the local PD is holding onto his guns for SIX MONTHS per their policy, even though the temporary VPO was dismissed. Said he was told it was a "cooling off" measure. His story checks out on OSCN .

I encouraged him to ask his current attorney (family law specialist) what she might be able to do, and possibly to get a consult from a local specialist like Doug Friesen if they can't get the judge to send over an order to the City Attorney. Policy is NOT the law.

Now, for all of you still following this: WTF....... how can the local PD go above and beyond the judge's order and hold personal property like this? 6 months is long enough to be REALLY annoying, but short enouh that I bet most lawsuits will take longer to process than simply waiting them out. He can go legally buy NEW guns, he just can't have his other ones back? Does he not have a pretty good case here on a 4th or 5th Amendment complaint?

Seems like a good due process case. I'd file the suit against the PD and try to get a judge to issue an order, even if it was to have a neutral 3rd party store the guns for safekeeping. I've heard horror stories about guns coming out of property rooms in terrible shape.

 

[SMS]

As mentioned, policy is not law. In the absence of a court order or a city, state, or fed law then it seems to me that the PD is just relying on the color of authority and intimidation (who want's to toe up to the local PD? Not many), possibly driven by some fear of legal liability.

I think a formal visit, accompanied by an attorney, respectfully and calmly demanding the release of his private property would be in order. Or better yet just send the attorney after them so there can be no misunderstandings and confrontations that might impact or lend credence to further VPO type actions.