Brady disqualification/firearms rights? (Indiana)

[herewegoo]

Hello FA,

So I live in Indiana. About a year ago, I was subject to an ex parté order of protection, which I pretty much immediately (and without a lawyer) contested. Bottom line is that the petitioner (my ex girlfriend) had claimed in her petition that I hit her, stalked her, threatened her, as well as was mentally unstable, etc. Truthfully, she had been attempting to break up with me and wasn't being clear about it. She would continuously lead me on to believe that my presence was welcome. I believe it was done intentionally with ill intent.

The point at which the protection order came into play was when she invited me up to her school, and I went. As soon as I got there and sent a text, she stopped answering her phone/texts, called the police and said I was stalking. Shortly after, about 2 days later, I was served with a protection order.

Anyway, a year later, and after a ton of legal research, my concern now is the Brady disqualification. On my protection order, the cover sheet marks Brady disqualified as "yes". However, further down on the order, where it states what the court has ordered. It says that order does not protect an intimate partner or child. Additionally, the actual court orders do not say anything about me being prohibited from possessing/buying/selling/etc. firearms directly.

Now, at face value, everything seems all fine and dandy--except for one thing. If my legal research is correct, I shouldn't be Brady disqualified. Various online sources say that Brady disqualifications in Indiana, after notice and a hearing, are automatic and non-discretionary. However, according to state statute, that shouldn't be the case.

See, Brady disqualifications cause a respondent to become prohibited from possessing/etc. firearms until the order is dissolved, either as a result of expiration, or the voluntary dismissal of the petitioner. Here's the thing though: In order to be Brady disqualified, the petitioner must be an intimate partner or child to the respondent. 18 USC 922(g)(8) sets the criteria (in regards to protection orders) for a firearm prohibition under Brady.

According to 18 USC 922(g)(8), it is 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 possess/etc. a firearm.

Now, (B) of the above is important. It specifically states intimate partner or child. Now, further, 18 USC 921(a)(32) defines intimate partner:

(32) 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 or a child of the person, and an individual who cohabitates or has cohabited with the person.

So, here's the thing. I have never resided with, never had a kid with, nor am, or have ever been married to the petitioner. So this is where my confusion lies. How am I Brady disqualified? Brady has very clear guidelines which must be met, and I do not believe that it is within the court's rule to apply a Brady disqualification to a protection order which does not meet the Brady criteria (the Indiana Protection Order Deskbook also supports my research). The protection order even stated that the order does not protect an intimate partner or child.

Again, as I've read online, that once the respondent has received notice, and an opportunity to be heard, (s)he is automatically Brady disqualified. That can't possibly be the case, if the legal research I've conducted is correct.

So down to my question Is it within the court's rule to impose a Brady disqualification upon a respondent who does not meet the criteria for a Brady disqualification? If not, what can be done?

[SUB]This is a bit of a side question, so don't worry about this one too much, but, if I am correct, and decide to carry a firearm despite the court error, and am arrested, when it is brought up in court, would it be likely that the charges would be dismissed because of my failure to meet the criteria set forth by 18 USC 922(g)(8)?[/SUB]

 

[single317dad]

This question comes up a lot. Indiana's law and boilerplate forms aren't as clear as they could be. The desire to use a single set of forms in order to run as many ex parte orders of protection through the system as possible has led to some ambiguity in non-standard cases.

IC 34-26-5-9(c)(4)

http://www.in.gov/legislative/ic/code/title34/ar26/ch5.html

(c) A court may grant the following relief after notice and a hearing, whether or not a respondent appears, in an order for protection or in a modification of an order for protection:

(4) Prohibit a respondent from using or possessing a firearm, ammunition, or a deadly weapon specified by the court, and direct the respondent to surrender to a specified law enforcement agency the firearm, ammunition, or deadly weapon for the duration of the order for protection unless another date is ordered by the court.

Firearms prohibition is not automatic. Either the court orders it, or it isn't ordered. There must be a notice (service) and hearing; this cannot be part of an ex parte order. In fact, the court must set a hearing if the petitioner requests Brady disqualification.

http://www.indy.gov/eGov/County/Pros/FAQ/Protect/Pages/home.aspx

IC 34-26-5-9(a), the requirements to be met for a court to hear a petition for order of protection ex parte:

(a) If it appears from a petition for an order for protection or from a petition to modify an order for protection that domestic or family violence has occurred or that a modification of an order for protection is required, a court may:
(1) without notice or hearing, immediately issue an order for protection ex parte or modify an order for protection ex parte; or
(2) upon notice and after a hearing, whether or not a respondent appears, issue or modify an order for protection.

IC 35-42-2-1.3, the definition of domestic violence for the purpose of battery charges:

Sec. 1.3. (a) A person who knowingly or intentionally touches an individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person;

In my opinion, the letter of the Indiana code restricts the application of Brady to those who live(d) together or have a child in common. In fact, I believe that unless there's an allegation of domestic violence (as defined by statute) there shouldn't even be the possibility of an ex parte hearing. Indiana, however, has run so fast and loose with the ex parte orders of protection that there's really no way to avoid one if someone is determined to go that route.

All that said, I am not a lawyer and it isn't my butt on the line. If you can't wait another year until the order expires, I suggest you seek out a criminal attorney experienced in these matters.

You state that you contested the order. Did you ask the court for a hearing within 30 days of issuance? Was there a hearing? If so, much of what I posted won't apply to you. What happened at that hearing (if any)?

 

[herewegoo]

I did have a hearing, and I did contest it within 30 days. I went to court without a lawyer, because at the time I couldn't get one. I'm planning on getting a lawyer to revisit the issue via a motion.

There was an allegation of domestic violence, but it's on the courts record that I said it was an accident--literally, an accident. It wasn't a "I got mad and hit her" accident--it was a "I was laying down in bed, half asleep, and move the covers over my head and hit her, unaware of her distance to me" accident. I told the court that, be he continually cornered me into answering that question as if I was guilty.

According to what you've quoted, the statutes seem very clear-cut, however, as I am aware that states may make tighter laws than federal, I still don't think they can do so with Brady--I don't think they can create additional criteria.

See, my problem isn't the protection order--it's the Brady disqualification. I really don't even care that I have the order against me, given I have absolutely no desire to speak with that individual at this point anyway, but, it does bother me that as a result of the order, I've lost my 2nd amendment right.

As far as Indiana not really giving a crap about the issuance of orders, and choosing liability mitigation over the rights of its people, yeah, I've noticed that too. The Judge, after the hearing, and after they went off the record, asked to speak with the Petitioner, and I was removed from the courtroom. I didn't understand court rules and laws the way I do now--I'm not saying I understand them to a point, but I understand them greatly better than I did. I want to sue the courts, but, I can't I don't think.

 

[single317dad]

Your recourse if you believe the judge has acted improperly include public complaint, disbarment, impeachment or recall, or in some cases you may sue a judge personally (though rare).

Good luck with any of those. You'd have more effect simply campaigning against them in the next election.