CHRO vrs DVRO

[CdwJava]

Ah, Carl to my rescue...saving me a phone call. Thank you...btw, how's the rug?? Nice and clean and fluffy

Walked on ... as usual.

But, I wouldn't have it an y other way.

(PS: I happen to be a POST-certified CLETS instructor, so that one was right up my alley.)

- Carl

 

[its_kathie]

(PS: I happen to be a POST-certified CLETS instructor, so that one was right up my alley.)

- Carl

And I didn't even counter, rebut, or enhance...that's unique, unusual, and one for the record. Have a good night.

Oh yeah, did your team train on PC § 11106. You never know when I might be coming around to testing department's compliance. I know, it says "may", but the department best have a good reason to decline. I have heard a reasonable one, but that was hours after he researched, then declined me - although his argument as it applied to me was weak and violated policy. All the other reasons for decline was due to lack of knowledge.

 

[CdwJava]

Oh yeah, did your team train on PC § 11106. You never know when I might be coming around to testing department's compliance.

We discussed it, but it's more of an issue for the Sheriff's department as our agency does not regularly provide CLETS/NCIC records. The S.O. is the agency that handles that by MOU, and they're office is two blocks away.

Interesting enough, after reading your post I was handed the recent legislative updates for 2007 which removed the civil harassment order firearm exemption, and updates that made failure to show the court proof of firearm disposition a de facto violation of the court order ... however, the key still seems to be to show the court, and not to show law enforcement. Thus, law enforcement would likely still have to seek a warrant through the DA and the court in order to arrest someone for this violation as the law makes it sound like the court holds this discretion.

It also had an update allowing law enforcement to seize the firearms immediately on service of the order and mandating proof of their disposal within 24 hours IF DEMANDED at service and the weapons were not seized. (There was some more detail to that one that I will have to look up ... I'm not at the office anymore.)

I know, it says "may", but the department best have a good reason to decline. I have heard a reasonable one, but that was hours after he researched, then declined me - although his argument as it applied to me was weak and violated policy. All the other reasons for decline was due to lack of knowledge.

Our excuse would be easy ... there is only one person in the office during the day that knows how to do it, and I'm usually busy. And, of course, we have the MOU for the S.O. to handle any NCIC or CLETS requests as they have a dedicated records section ... we have three people that handle records, and only I know how to pull that info.

- Carl

 

[BlissfulMommy]

I agree we are all responsible for our actions. But I wonder why one must pay for the rest of their lives - totally labeled and branded.

It seems harsh to me. Here in California the record is removed from the CLETS and DOJ system once the term has expired. At least, I am pretty certain it is. I will check on that with the DOJ.

But of course California and Florida do have different laws.

I still don't think a young man (anyone) should pay for the rest of his life (based on the degree of course) for a misdemeanor; even our traffic tickets and credit report expunges. Sometimes just getting slapped with one DVRO knocks some sense into the person and the deterrence works. Especially if there isn't a history of abuse.

Of course I am not generalizing and saying all, always. Just thinking...

hi Kathie,

when a guy hits and abuses a woman once, he will most likely do it again - History repeats itself - also with my ex - his first wife had a Restraining Order put in the divorce decree, just so he wouldn't harass her after the divorce. And did I mention that he said a few weeks ago "I should have killed you when I had the chance to" - meaning, before he moved from Florida to California. Seriously, I wouldn't want a hothead like my ex being able to join the Police Force or military - nobody would be safe on the streets.

I think that these kind of things should be handled on a case-by-case basis when someone with a DVRO is applying for a job with the police force, military and even if he just wants to become a nurse - like my ex - with mental evaluation and a lie detector test if necessary. When someone had a DVRO against them, ask them about it, test their honesty about what happened and if they are sincerely sorry. If they fail any test, put them on another year of probation until they learn their lesson. I know for a fact that my ex does NOT regret kicking me in the kidneys after pulling my hair and throwing me down on the ground. He is still convinced "that I deserved what I got". Some people just never learn. Should he be let off the hook ? I don't think so. Domestic Violence is a very serious matter and I think that laws should be stricter, period. How many women die every year because of Domestic Violence ? Way too many !! If the laws were stricter, a lot of those murders could be prevented. There was a very interesting thread on this forum just a little while ago in regards to exactly this problem.

I really like the idea about the comparison of a DVRO and the way items on your credit reports are handled. I think that 7 years would be a good way to handle the complete "expiration" of a DVRO as well. If you ruin your credit because of stupid actions, you automatically pay for it with a low(er) credit score for years to come as well.

 

[CdwJava]

I think that these kind of things should be handled on a case-by-case basis when someone with a DVRO is applying for a job with the police force, military and even if he just wants to become a nurse - like my ex - with mental evaluation and a lie detector test if necessary.

Having a DVRO would be an absolute bar to employment as a peace officer anywhere in the US. Even having an OLD DVRO is likely to result in disqualification for at least law enforcement as most agencies are not going to want to take a chance. However, they may look in to the whole case to determine for themselves what the story was and why the order was issued.

I don't know about FL, but CA law requires a mental health evaluation of all peace officer applicants, and most agencies put their applicants on a polygraph. That device is a great tool for background investigations!

- Carl

 

[its_kathie]

Blistfulmommy,

I am certain Carl will agree...the best indicator of criminal (any) behavior is one's history. If there was one incident of violence, then there should be some leniency. But as in your case, and all not too unfamiliar, this behavior tends to follow the character.

 

[speedallurement]

i do believe that anything physical, for a example a assult conviction is a automatic DQ,

But from blissfullmommys experience where she handed her ex a restraining order, saying he hit her. There is no evidence of the assualt, he may argue that he never did that, and if her motives were unjust ,she could have given him paypack for something he didnt do.

I have read storys about wives making storys like this that automaticaly bar someone away from military/law enforcement just couse the plaintiffs motive was unjust. Theres even been one case where a wife/ex gave a guy a restraining order and stalked him so it could seem like he was stalking her. So she could lock him up.

If the plaintiff is paranoid she will do whatever she can to get rid of her paranoia, , well its this feeling that can couse the plaintiff to do something illegal for the purpuse of her well being, again this is unjust and illegal, i believe perjury.

Handing somone a restraining order has got to fuel the paranoia, u see theres no resolve in the matter, ur basically telling someone that its illegal for them to talk to u ect, wich may anger a individual with the restraining order, In time i believe the individual will find resolve but taking away his second amendment rights, hows he gonna protect himself when somone breaks in his home? Having to be disqualified from employment for the rest of his life is another issue. Not only that, u may have slapped him with a 100 yd stay away order, wich will make someone with a restraining order quite diffiant as to why ur taking away all his civil rights.

. So im saying that its so easy for somone to make false accusations ect by acting on her paranioa to get rid of the guy, even if the guy for whatever reason has no criminal intent. And still it may labelled on his public record for the rest of his life, and in blissfulmommys experience, prevent him from employment in certain fields, nurising ,where hes already finnished his education.

if he did hit her then i see no problem with that, but it should be a criminal protection order that has a domestic violence convictions , not a DVRO with no conviction.

 

[CdwJava]

i do believe that anything physical, for a example a assult conviction is a automatic DQ,

For police work? Not necessarily. It depends on the specific charge, and whether it is a crime that exempts the person from carrying a firearm or not. Most simple battery charges are misdemeanors and do not carry such a prohibition unless they are DV related.

However, the hiring agency will want to look at the offense and the details ... when did it happen? Why did it happen? What were the details? They will then make an evaluation of the situation.

For instance, cold-****ing some guy that groped your girlfriend at a baseball game is not likely to disqualify you ... popping the guy because he was wearing another team's baseball cap probably will. It's all in the details and what has transpired since that time.

I have read storys about wives making storys like this that automaticaly bar someone away from military/law enforcement just couse the plaintiffs motive was unjust.

Yep. I know officers who have been effectively blackmailed into capitulation on alimony, child support, custody, and property divisions using a threat to obtain a restraining order. To obtain the initial order, it really takes very little - and certainly nothing substantiated (outside of written claims), since the initial application goes unchallenged until the contested hearing date. While some are not granted, many are. It's a real fear for many people - especially those who like to hunt or who are in professions where no firearm means a new career. Even being subject to an order for 3 to 6 weeks until the hearing can be enough to force a guy out of his career. Even if the judge fails to find sufficient cause to issue the order, the damage is done, and it is unlikely that the former defendant can recoup his losses by suing the former plaintiff as he would have to PROVE she intentionally lied ... this is nearly impossible to do.

Theres even been one case where a wife/ex gave a guy a restraining order and stalked him so it could seem like he was stalking her. So she could lock him up.

Seen those, too. They are rare, but they happen enough that some officers are beginning to balk at DV scenes and are really having to dig deeper to try and sort out what is happening.

So im saying that its so easy for somone to make false accusations ect by acting on her paranioa to get rid of the guy, even if the guy for whatever reason has no criminal intent.

Well, criminal intent is not required in the case of battery. In fact, at least in CA, injury inflicted even unintentionally during a violent confrontation with a qualified partner can result in felony charges against the suspect. If the suspect threatens the victim with bodily harm, and she believes it so strongly that she flees from him and falls and hurts herself, he is going to jail for felony battery. The injury must simply be shown to have occurred as a result of his actions - whether the injury was directly or indirectly related does not matter.

if he did hit her then i see no problem with that, but it should be a criminal protection order that has a domestic violence convictions , not a DVRO wich no conviction.

While the TRO (the initial, temporary order - prior to hearing) can sometimes be easy to get, there is a need for these orders. Trial and conviction might be a long way down the road - many months away. Or, the DA may not have enough to go to trial, but the victim still needs protection.

The key is where to draw that line. Personally, I'd like to see them tighten up on the issuance of these things. Some TROs are granted as easy as flushing the toilet ... others require a higher burden of proof. There is no specific standard as to what constitutes a preponderance of the evidence, so each court is left to its own devices.

I wish I knew the answer. But with the trend the way it is, the accusation may soon be enough for the initial order.

- Carl

 

[BlissfulMommy]

i do believe that anything physical, for a example a assult conviction is a automatic DQ,

But from blissfullmommys experience where she handed her ex a restraining order, saying he hit her. There is no evidence of the assualt, he may argue that he never did that, and if her motives were unjust ,she could have given him paypack for something he didnt do.

. So im saying that its so easy for somone to make false accusations ect by acting on her paranioa to get rid of the guy, even if the guy for whatever reason has no criminal intent. And still it may labelled on his public record for the rest of his life, and in blissfulmommys experience, prevent him from employment in certain fields, nurising ,where hes already finnished his education.

if he did hit her then i see no problem with that, but it should be a criminal protection order that has a domestic violence convictions , not a DVRO with no conviction.

My back then 14 year old daughter witnessed the whole incident with her own eyes. I wouldn't make up anything like that either, I'm a true believer in karma - what goes around, comes around. He claims and admits to that he kicked me in the butt after he pushed me on the floor which is clearly domestic violence by itself, even if he didn't kick me in the kidneys - I was urinating blood for two days after he kicked me in the kidneys, nobody urinates blood from being kicked in the butt. This was enough evidence for the domestic violence department in our courthouse here to issue the DVRO besides the fact that he came into my apartment a couple of times without notification after we separated. He had me fired from my job and he kept calling about 10 times a day.

He had the opportunity to defend himself when we had to go to court, we went in front of the judge and he signed the permanent DVRO and that was the last I have seen of him. He admitted to everything.

 

[its_kathie]

Carl,

The victim should not (must not) do any enforcement. It is up to law enforcement to enforce the firearm regulation and also the DA. The DA may take their own case to court without law enforcement, but the bottom line is - the responsibility lies with enforcement.

Law enforcement must do their job. There are also several grants and programs actually helping law enforcement retrieve firearms. San Mateo County is one of them. The DOJ and the Attorney General has stated that it is the responsibility of law enforcement and DA. Once it gets to the court - they sanction the behavior.

It is a three step or two step process.

We need the victim to concentrate on her home, family, and securing it. Not to mention the battle she will be going through fighting him in court. She must not add anything more to her plate otherwise it is a set-up for failure. Once she "discovers" he has failed to comply, a simple phone call to law enforcement should produce results.

I'm not bending on this one - for the AG, DOJ, Law Enforcement, and DA have stated so.

BTW, what 2007 bill is it?

"rug seems to be a bit soild" - time for some heavy cleansing <grin>

 

[CdwJava]

The victim should not (must not) do any enforcement. It is up to law enforcement to enforce the firearm regulation and also the DA. The DA may take their own case to court without law enforcement, but the bottom line is - the responsibility lies with enforcement.

I don't think I ever said victims should do their own enforcement. However, as we have covered before, enforcement must still meet the requirements of state law and Constitutional protections. Because the victim believes there is a violation does not mean that (a) the police will see it the same way, (b) the DA will see it the same way, or, (c) the court will see it the same way.

My DA writes many technical violations off as "incidental contact" and does not pursue them. It's a pisser, but it happens. And frequently we get what happened last night - husband and wife, wife with a DV CPO restraining her from estranged hubby, are together willingly and peacefully having dinner at a friend's house ... we are there on an unrelated matter and have to arrest her because o the SHALL arrest language.

Our jail released her O/R today (and while I have not researched it, I believe that is NOT permitted). I am willing to bet that by tomorrow we will receive the DA's rejection of the charges as well.

Law enforcement must do their job. There are also several grants and programs actually helping law enforcement retrieve firearms. San Mateo County is one of them.

Grand deal for them. Give me a search warrant, and I'd be happy to look for firearms wherever the warrant says. Whether a judge will sign a warrant based solely on the DOJ registration documents if a suspect denies owning or possessing them any longer is a crap shoot.

The DOJ and the Attorney General has stated that it is the responsibility of law enforcement and DA. Once it gets to the court - they sanction the behavior.

No one has a problem retrieving firearms. The issue is whether rumor and innuendo is sufficient to justify a search warrant. In my county it would not be sufficient at all. Indeed, in most counties it would not be. And since most long guns are NOT registered, there is not even a DOJ record to fall back on.

We need the victim to concentrate on her home, family, and securing it. Not to mention the battle she will be going through fighting him in court. She must not add anything more to her plate otherwise it is a set-up for failure. Once she "discovers" he has failed to comply, a simple phone call to law enforcement should produce results.

A "simple phone call" is NOT evidence of a crime. Should her word be given more credibility than anyone else's? Should her word be given the full weight of law and the other party's none?

While we may believe the victim and her version of events, we still require probable cause to make an arrest - even for a DV TRO violation. This is not always possible with a "yes he did ... no I didn't" situation. The easy way out for us is a private person's arrest - that way the arrested party can sue the signing party for false arrest if they have cause.

There still has to be probable cause to support an arrest. If she says he drove by the house and he says he did not, and there is no independent evidence or witness to the contrary, what do you suggest be done?

BTW, what 2007 bill is it?

AB 2129 and SB 585. They are 2006 bills and they became effective on 1/1/07 according to the DOJ bulletin I hold in my never nicotine-stained fingers.

Also, I note in Family Code section 6389 that exceptions to the firearms provisions orders are permitted to be offered by the court, and that the respondent may return to court to have the order modified (FC 6389(h) and (l) and 6389(f)). So, while the forms may not offer these as optional boxes, it seems that the final order - or a later revision - CAN include these exceptions.

(www.leginfo.ca.gov ... all sections listed as current, with legislation effective 1/1/07 already listed.)

"rug seems to be a bit soild" - time for some heavy cleansing <grin>

My wife just takes the rug our for a good beating in the fresh, Spring air, once in a while.

- Carl

 

[its_kathie]

I don't think I ever said victims should do their own enforcement. However, as we have covered before, enforcement must still meet the requirements of state law and Constitutional protections. Because the victim believes there is a violation does not mean that (a) the police will see it the same way, (b) the DA will see it the same way, or, (c) the court will see it the same way.

In order to enforce, one must first investigate. There is serious lack of investigation here in the U.S.
The Judicial Administration states grounds for reasonable cause is: DOJ Armed and Prohibited File (or) vic_s prior knowledge and prep_s lack of surrender (or) the ex_s testimony...any one of these brings cause for investigation. What more does law enforcement want in order to investigate: the accused to stand at the door with a gun in his hand. Might as well, for lack of effort otherwise.

I feel law enforcement would rather spend 10 hours on someone throwing rocks at cars then 10 minutes looking into a DV victim's safety. It's all a matter of perspective, they don't feel a woman's safety and threat of death is worth the effort to investigate. That's why people are dying out here in mass at the hands of a violent abuser.

Imagine this:
Daughter has a boyfriend and she breaks up with him because he raped her; she contacted the police and did everything requested of the police and DA. Then imagine he plea bargains and gets off early. From there, he threatens her, twice, which is proven. Police investigate and an ERO is served which eventually becomes a DVTRO. At DV court, the ex only surrenders one firearm. The daughter knows he has two more firearms and brings it to the judges attention. She even knows where the keys are kept. The judge warns the ex. Upon investigation, the DOJ prohibited person_s file shows he has two of the three weapons still registered, and ownership since 1987 and 1991. Police question him. He says those weapons are at his mom's house (mom lives 20 miles away).

The court order clearly states all weapons must be surrendered to police or a licensed dealer. What is to stop any and all restrained parties from doing this? Is this lack of inaction causing nullification of the law?
What would you do?

 

[its_kathie]

A "simple phone call" is NOT evidence of a crime.

I did not state a phone call is in any way "evidence of a crime". I stated "a simple phone should produce results." Like a justified investigation to see if the "tip" is justified. Not just an incident report conveniently filed away after the conversation is over.

Police rely on phone calls for information, among other things. Do phone calls such as this justify reason to discount the information.

 

[its_kathie]

There still has to be probable cause to support an arrest.

One won't find probable cause if one doesn't look. It's like having a sheet over your head and saying, "I don't see nothing."

You are right, civil right is very important, and arrest is a serious issue. So Is Death.

 

[its_kathie]

While we may believe the victim and her version of events, we still require probable cause to make an arrest - even for a DV TRO violation. This is not always possible with a "yes he did ... no I didn't" situation. The easy way out for us is a private person's arrest - that way the arrested party can sue the signing party for false arrest if they have cause.

FC 6383:
(h) There shall be no civil liability on the part of, and no cause
of action for, false arrest or false imprisonment against any peace
officer who makes an arrest pursuant to a protective or restraining
order that is regular upon its face, if the peace officer in making
the arrest acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order.