CHRO vrs DVRO

[CdwJava]

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.

The court notifying law enforcement that the defendant has failed to comply with the court order tends to help.

Please note that the order requires the defendant to present proof to the court - NOT to the police department. The police are NOT the court, nor do we have a liason sitting at the court checking to see if any particular TRO defendant has failed to comply with the firearms requirement. The police are not mind readers and they have to be notified that a violation of this requirement has taken place.

We do not have the manpower to follow up on every TRO issued within our jurisdiction to check on firearms compliance. In fact, we do not always get notified that one HAS been issued. While the plaintiff is directed to deliver a copy of the order to each agency where they live and work, this does not always come to pass. And even when it does, it does not automatically trigger a follow-on investigation to check for compliance. Perhaps if I had the staffing to dedicate someone to a DV unit, I could accomplish this. But, with a 16% vacancy in staffing, I can't dedicate someone to something that has not been a huge issue within my jurisdiction. Perhaps if we had a great number of reports or firearms-related incidents I could see my way clear to remove a detective from child abuse follow-up to DV follow-up, but as it is, the former is a greater priority than the latter.

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.

Then you would be wrong.

Someone throwing rocks at cars is pretty simple and requires little follow-up. Most DV cases are volatile, involve uncooperative or contrary parties, and involve few - if any - independent witnesses.

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.

Dying "in mass"?

It seems you are advocating an unconstitutional approach to a problem that is not as simple as pointing a finger and saying he is in violation. Here are some of the issues:

- Most firearms are long guns - long guns are not registered with DOJ, thus no real record is kept. If the protected party says he has them, and the restrained party says he does not, lacking independent witnesses to the contrary a search warrant is not likely forthcoming.

- Handgus may be registered with DOJ but a high percentage of those files are NOT up to date and accurate. This is due largely to improper/unlawful transfers to family members and unreported thefts. Whether a DOJ printout by itself is sufficient for a search warrant is questionable and will vary by jurisdiction.

- If no guns are found after the service of a search warrant, an arrest cannot generally be made on the unsubstantiated belief that the defendant MIGHT have squirreled a gun away somewhere else! The DA still has to prove a case at trial and the police still need to have probable cause to make the arrest.

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?

We would likely "long form" the complaint to the DA and then to the court. Again, if he failed to turn the info in to the court (as specified by court order) and the COURT did not see fit to remand him right then and there, I'd be hard pressed to justify an arrest afterwards on the same fact set.


- Carl

 

[CdwJava]

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.

Caller: "He drove by my house twice last night."

Okay ... how do we prove that?

We are not going to send a task force out to scour the neighborhood looking for witnesses. An officer will contact the victim, may contact witnesses who might have seen him drive by, and will attempt to contact the suspect. If he denies the allegation, that may be it. He is under no obligation to provide an alibi or even provide us with a witness supporting his alibi. Very often he will, but unless the story can be shaken, that's it.

We get A LOT of those. It's not that we disbelieve the victim, it's that we cannot prove the violation. However, if the victim insists upon a private person's arrest, we can take him based on that (provided the time frame and investigation are relatively close together).

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

No, but neither do they establish probable cause for a crime. A violation of a TRO is a misdemeanor generally not committed in our presence. It is perhaps the only SHALL arrest section in the Penal Code and is one of only two misdemeanors that come to mind off hand permitting us to arrest for misdemeanors not committed in our presence.


- Carl

 

[CdwJava]

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.

Please note the "reasonable cause" section ... aka "probable cause". If the officer cannot show that PC exists, he cannot lawfully make the arrest. Hence the "out" of a private person's arrest if all else fails.

Once again, because someone says he did it does not mean that he did. That claim, by itself, does not necessarily give rise to probable cause. It can, but it does not automatically do so.

- Carl

 

[CdwJava]

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.

Everyone has a pet peeve or criminal violation they want to see put down. There are DUI advocates that want squads of officers roaming the streets for alcohol violations. We have people wanting the same for drugs ... and sexual predators ... and gang members. All have statistics to prove that theirs is the biggest problem around. Yes, they are all problems. No, they may not be problems everywhere.

I would LOVE to have the staffing to deal with everyone's pet criminal violations - I don't. I have to direct patrol and investigations to where the greatest need is. If, in my community, restrained persons were believed to be running around with guns, and we had firearms allegations everywhere, then I might rob Peter to pay Paul. However, this is no the case here - and, likely, in most communities. But, for those that do have this as a problem, I am all for them dedicating the necessary resources to do what they feel they must. In my department's case, I'd have to drop higher priority (politically and criminally) matters in order to chase TROs and guns that may or may not have been turned in. When/if the possibility comes to our attention, we will deal with it. But we have neither the manpower nor the logistics in place to pursue the matter independently. It is a fact of life and resources.

No one I know is soft on DV. We arrest whenever we can ... I take the kids when I can, and have arrested both parents on a number of occasions. However, this element is a tough sell as the probable cause is weak. TROs are tough. Unless we catch the person in the act it comes down to two people making counter claims ... then, who do you believe?

- Carl

 

[its_kathie]

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.

There is no modification to the firearm clause by any official. From 1999 to 2003 many judges were doing just that; in light of this legislature enacted this stronger wording which became effective 2004:
6389. (a) A person subject to a protective order, as defined in
Section 6218, shall not own, possess, purchase, or receive a firearm
while that protective order is in effect. Every person who owns,
possesses, purchases or receives, or attempts to purchase or receive
a firearm while the protective order is in effect is punishable
pursuant to subdivision (g) of Section 12021 of the Penal Code.

Carl, what you are citing
6389 (f) Nothing in this section shall limit a respondent's right under existing law to petition the court at a later date for modification of the order.

6389 (h): if for "condition of continued employment". And if an exemption is ordered strict guidelines must be adhered to: And before the court agrees, psychological evaluation must be undertaken.

6389 (i) simply means the restrained party can sell his firearms that law enforcement is storing on a one time only basis.

6389 (b): failure to timely file a receipt shall constitute a violation of the protective order.

6389 (a)(g) pc 12021

CARL: 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.

RESPONSE: The court has NO discretion to the firearm order. Again, no red-lining. Once a violation of the court order occurs, PC 12021 takes effect. Hence, criminal charges not civil. Time for law enforcement to step into action.

SB585 simply states the accused (served party) has 48 hours (not 72) to file with the court proof of surrender. The police department or licensed dealer provides the receipt. Hence, the PD already has a record. If they don't, PC 12021 takes over. The time period was shortened to ensure the safety of the petitioner and courtroom that all weapons were turned in before the hearing.

AB 2129 is the same as SB585 from 48 to 24 surrender of and provide receipt within 48hrs.

 

[its_kathie]

okay, okay, okay....I see you are back. I have been researching making sure what I was showing and reading was not interpreted.

My source for much of this is the Attorney Generals Domestic Violence Report. Domestic Violence, Victim Protection and Batterer Accountability. And of course the legislative codes.

I will gladly send you a link. It's right on the AG's web-site too under domestic violence. But as always those sites are webs.


Also, would you like Casey Gwinn's essay - it's quite good.

 

[CdwJava]

6389 (f) Nothing in this section shall limit a respondent's right under existing law to petition the court at a later date for modification of the order.

Yes. So, he can go back to court and modify the order.

6389 (h): if for "condition of continued employment". And if an exemption is ordered strict guidelines must be adhered to: And before the court agrees, psychological evaluation must be undertaken.

Here is the first part of the section:

(h) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary.

That indicates that an exemption IS possible. The psych. eval is only for peace officers. This is yet another means by which an officer can be blackmailed by a vindictive spouse or lover.

And, 6389(l):

(l) If the respondent notifies the court that he or she owns a
firearm that is not in his or her immediate possession, the court may
limit the order to exclude that firearm if the judge is satisfied
the respondent is unable to gain access to that firearm while the
protective order is in effect.

This sounds pretty clear on an exemption. But, as it says "notifies" this is likely something that can be done at the initial hearing or during a subsequent hearing after the order is granted.

RESPONSE: The court has NO discretion to the firearm order. Again, no red-lining. Once a violation of the court order occurs, PC 12021 takes effect. Hence, criminal charges not civil. Time for law enforcement to step into action.

And the violation occurs when the restrained party fails to notify the COURT of the disposition of the firearms. Law enforcement is NOT in that process until or unless the court notifies them ... and one would think at that point the subject would be remanded or a warrant would issue for his arrest based on said contempt of the court order.

Once again, Kathie, I have NO idea what the court does with these. We are not part of the initial order process, and we are not part of the court process. I cannot possibly tell you who has had DVROs issued or not until or unless the matter comes to my attention or I run them on a whim. If the court does not notify us of the violation (hopefully by issuing an arrest warrant), we do not know about any violation of the terms in this regard as the restrained party is not required to show US proof - he has to show it to the court. My officers are not IN the court.

- Carl

 

[CdwJava]

okay, okay, okay....I see you are back. I have been researching making sure what I was showing and reading was not interpreted.

My source for much of this is the Attorney Generals Domestic Violence Report. Domestic Violence, Victim Protection and Batterer Accountability. And of course the legislative codes.

I will gladly send you a link. It's right on the AG's web-site too under domestic violence. But as always those sites are webs.


Also, would you like Casey Gwinn's essay - it's quite good.

I'd be happy to see them. I always like to expand my repertoire.

But, keep in mind that the AG's reports do not have the status of law. In fact, the AG's opinion on legal interpretation only stands so long as there is not case law or another ruling on the matter. So, while the AG may hold an interpretation of the law, he is not the final say on its meaning.

And we don't read legislation, we read statutes and case law as we can. If it is not in those two sources, we can't interpret it.

But, much of the responsibility of what you are discussing is outside the scope of law enforcement. Prosecution lays with the DA, and enforcement of the failure to notify the court of the disposition of weapons seems to begin with the court. As I said, I just plainly don't have the manpower to pursue this. If we had a rash of firearms related DV violence, you bet we would shuffle things around to address it. But, in my county, firearm-related DV is almost nil ... and I live in a county where there are probably two to three times as many guns as people!

It would not be possible for me to confirm a violation of PC 12021(g) without confirmation from the court. Since the violation only occurs if he FAILED to provide the documentation to the court, how are the officers in the field supposed to know whether this indeed happened or not? It might be something that will take a couple of days at a minimum to follow-up on. And then, we get back to the potential probable cause issues involved when a court failed to find a violation yet the police make an arrest based upon the same facts. Possibly do-able, but it could be precarious ground.

- Carl

 

[its_kathie]

Please note the "reasonable cause" section ... aka "probable cause". If the officer cannot show that PC exists, he cannot lawfully make the arrest. Hence the "out" of a private person's arrest if all else fails.

Once again, because someone says he did it does not mean that he did. That claim, by itself, does not necessarily give rise to probable cause. It can, but it does not automatically do so.

- Carl

Once again, if the court says a DOJ registration establishes reasonable cause, good enough for me. If the court says a personal statement establishes reasonable cause, so if the restrained says it's at his mothers house....good enough for me. The law says transfer firearms to police or licensed dealers. Not "mom". Plus, failure to provide receipt. All PC violations.

Once again, how much "reason" must be established. If you are implying "finger on the trigger", I say HELL no.

The Calif. Codes gives an officer much protection. What harm does it do you...nothing. what does it do for the restrained...holds him accountable. Deterrence and police power goes a long way with these jerks - they like to abuse and control the woman (granted, she has a part in it, but working to get her out of it is important too), go pick him up and let him tell it to the judge under violation of a restraining order CC or FC = PC 12021

Thank goodness there are advocates everywhere monitoring the actions of people that drink and drive, kill, do drugs, molest children, beat people etc. We are your watch-dogs. However, what we are also is a civilized society that has agreed to have a uniform code of justice and not an vigilante force. Law enforcement must do their best with what they have. However, completely ignoring a legitimate concern does not even come close to the level of acceptability or competence.

I know you guys on the front-line have a difficult time balancing everything. But in the long run, for all of us, I bet most nights we can lay our head down and say we at least made this a better world today. Even if it meant helping someone, or sharing a smile.

 

[its_kathie]

The Attorney General's Task Force on Domestic Violence

Keeping the Promise - Victim Safety and Batterer Accountability

http://safestate.org/index.cfm?navId=386





And what sugar is in your coffee? Where did I ever mention the AG's opinions in any of this. I stated the report cites case law, sheeze...

 

[CdwJava]

Once again, if the court says a DOJ registration establishes reasonable cause, good enough for me.

If your court says that, great. I doubt mine would. They are a tad Libertarian here.

If the court says a personal statement establishes reasonable cause, so if the restrained says it's at his mothers house....good enough for me.

You're not the one having to sign the order or facing liability for an unlawful search if no warrant exists.

I would still want a search warrant before seizing the weapons (in fact, I likely couldn't lawfully enter mom's house without that or consent), and would still likely seek an arrest warrant before making an arrest.

The law says transfer firearms to police or licensed dealers. Not "mom". Plus, failure to provide receipt. All PC violations.

See FC 6389(L).

And, again, issues for the court. Failure to provide those receipts to the court. Law enforcement does not have a hotline to the court to find out if the order has been adhered to. maybe if the courts held a strict standard, then we would know. If the guy doesn't fulfill the terms of the order, the court can always issue a warrant for the failure to comply. That makes it easy for us all. Perhaps you need to focus on the courts end of this rather than hittin up law enforcement for issues that are - to a great extent - outside our area of control.

The Calif. Codes gives an officer much protection. What harm does it do you...nothing.

A 4th Amendment violation is a federal violation. In Federal court, an officer is subject to personal liability and they do not care about CA law. In fact, statements taken in an IA in violation of CA's POBR can be used against you in federal court and they cannot in CA court.

So, yeah, violating the 4th can do an officer a great deal of harm.

go pick him up and let him tell it to the judge under violation of a restraining order CC or FC = PC 12021

And if he says the judge let it pass, or granted him more time?

Like I said, the courts are not in my department and I have no easy way to find this out. Given a day or two, yeah. That day and at that moment, no.

Let's hold the COURT accountable to issue warrants for the violation of the court order if they fail to comply with the court order.

Law enforcement must do their best with what they have. However, completely ignoring a legitimate concern does not even come close to the level of acceptability or competence.

No one said that the issue is being completely ignored. This issue is a small component o the overall picture. As I mentioned, in my county the issue of firearms and ROs is not even on the radar screen. If it were, then I can guarantee that something more would be done ... at the detriment of some other "priority".

Enforcement is almost entirely a political decision. It entails resources, priorities, and community desires. In many communities, this is not an issue - others are. So what little discretionary manpower there is gets devoted to the more serious offenses (as determined by the community and the local government).

As I said, I am not against doing any of these things. It's just that this is not a priority until someone makes it one. Then, to make this kind of proactive effort, we have to gore someone else's ox (program) and then THEY become the aggrieved party. It's a never ending cycle.

In my community we have the anti-drug crusaders and the anti-gang crusaders. Both thos ehold sway now.

- Carl

 

[its_kathie]

And we don't read legislation, we read statutes and case law as we can. If it is not in those two sources, we can't interpret it.

?? California legislation are the codes - and the statutes (one that the governor didn't sign defaultes into statutes).

 

[its_kathie]

All courts follow the California Judicial Administration.
It's the governing rules for judicial procedures here in California.
Like State and County governement - county can have their own rules that are no in conflict. Same for Judicial Admin and county courts.


That is the cite I am referring to - and yes your court has to abide byt the Judicial Administration. If your court doesn't....well, again, what's in the coffee over there?

 

[its_kathie]

Quote:
The law says transfer firearms to police or licensed dealers. Not "mom". Plus, failure to provide receipt. All PC violations.

See FC 6389(L).

And, again, issues for the court. Failure to provide those receipts to the court. Law enforcement does not have a hotline to the court to find out if the order has been adhered to. maybe if the courts held a strict standard, then we would know. If the guy doesn't fulfill the terms of the order, the court can always issue a warrant for the failure to comply. That makes it easy for us all. Perhaps you need to focus on the courts end of this rather than hitting up law enforcement for issues that are - to a great extent - outside our area of control.


But Carl....think a moment here...if he shows firearms are active in the registry...he did not file a receipt. It's two counts, and again default to PC 12021...therefore, back on law enforcement to enforce and the DA to press charges.

Carl, this is NOT a court thing, police thing, or DA thing. Too much "not my job: going on here...it's a cohesive unit, that when in sync...works.

 

[CdwJava]

?? California legislation are the codes - and the statutes (one that the governor didn't sign defaultes into statutes).

Reading the legislation summaries can be misleading. The point was, we don't read the text of Senate and Assembly Bills, we read code sections.

- Carl