Domestic violence laws and practices have a lot of problems. They have far too many to enumerate here, but, in a nutshell, they have a tendency to ignore due process of law, encourage false reporting, be used as attack strategies in child custody matters and the like.
In many states, the term domestic violence is so loosely defined as to include virtually any behavior that discomfits anyone in any way. Mandatory arrest laws and primary abuser arrest practices essentially ensure that males, who commit only half of all DV, will be the vast majority of those arrested.
And once arrested, standard procedure calls for the issuance of a some form of a temporary restraining order or no contact order against the alleged offender who is of course usually the male of the couple.
That brings me to yet another shortcoming of DV laws – their tendency to violate the 2nd Amendment to the Constitution and, because of that, their ability to deprive certain of their subjects of their livelihoods.
Here’sa law review article by nationally-recognized constitutional law scholar, Eugene Volokh (56 UCLA Law Review, 2009). In the pdf. version, go to pages 61-65 where he discusses TROs as they affect 2nd Amendment rights.
What happens is that judges issue TROs in individual cases that are designed in part to address the individual circumstances of those cases. But they often do something more; they add “boilerplate” language that’s lifted directly from a federal statute. The operative language refers to any court order that,
(B) restrains such person from harassing, stalking, or threatening an intimate partner . . . or child . . . , 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.
Anyone who’s the subject of such an order loses the right to possess a firearm.
Volokh notes that the insertion of the word “or” instead of the word “and” between (C)(i) and (C)(ii) means that a state court judge may issue such an order based on no finding of past violent or threatening behavior. That is, a TRO may be issued on the basis of the possibility of future violent behavior and not objectively proven past violent behavior.
Volokh goes on to point out the ease with which a judge might issue such an order.
And a judge might not think much about issuing an order barring the use of injury-causing force even without a finding of threat or past misconduct: After all, such force is already generally illegal (setting aside self-defense, which would likely be implicitly exempted), so why not prohibit it?
Why not prohibit it? The answers are several, but I’m sure Volokh is right that judges don’t really think much about this. The first answer is Volokh’s – such orders violate the person’s 2nd Amendment right to keep and bear arms. Indeed,
[A]t least some courts seem willing to enter orders simply based on “verbal[ ] abus[e]’ that consists of “insulting and foul language [used] to humiliate and degrade.’ Likewise, even statutes that ostensibly require a finding of domestic violence could be satisfied simply by “a communication. . . in offensively coarse language’ made “with purpose to harass,’ or based on “making annoying telephone calls, directly or indirectly destroying personal property and ‘contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . .”‘
And those of course are instances in which presumably the allegations are truthful, which, as we know, is far from always the case.
Now, I’m not the world’s greatest fan of the 2nd Amendment. My only point is the ease with which domestic violence restraining orders trump the Constitution.
There’s another deprivation accomplished by the type of TROs he’s discussing that Volokh doesn’t address, though. That’s the deprivation of the ability to earn one’s livelihood due to the prohibition on possession of a firearm.
Think of everyone that prohibition applies to. All law enforcement officers from the local cop on the beat to FBI agents, DEA agents and the like are covered. So are all military personnel and many security guards.
Do I have to point out that the vast majority of those are men?
So, improvidently granted TROs based often on mere allegations and sometimes on false ones, that involve no finding of actual violence can easily deprive a person (usually a man), not only of his 2nd Amendment rights, but also of his ability to earn a living.
Bad as that is, it’s not all. Consider the Jeffrey Ruggiero case that I’ve written about before. Recall that his ex-wife Kristin is a convicted liar. After their divorce and concerned that Jeff might have more contact with their daughter than Kristin wanted, she sent herself threatening and harassing emails, and made them appear to come from him.
That fooled police long enough to get him arrested and charged. It also allowed the family court to issue a TRO against him. Now, Jeffrey Ruggiero was perfectly happy to never be near his wife again, but there was another bigger problem – his job. He was a petty officer in the U.S. Coast Guard. The TRO took away his right to carry a weapon; in so doing, it took away his ability to continue his military service which was his only means of support.
But it gets worse. Kristin apparently knew full well the consequences to Jeff’s livelihood of the TRO. So she made him an offer he couldn’t refuse – sign a termination of your rights to your daughter and I’ll drop the TRO.
And that’s just what happened. Faced with loss of his career and bankruptcy, he gave up his parental rights.
Shortly afterward, the police figured out who the harasser was, who the stalker was, who the liar was. They released Jeff and prosecutors dropped all charges against him. In turn, they arrested Kristin and charged her with 12 felony counts of perjury, lying to the police, filing false claims, etc. She’s been convicted of all of those counts and is now serving 7 – 14 years in prison because of it.
But what of Jeffrey Ruggiero’s parental rights? Two years after the fact, he’s still battling in family court to get his daughter back. Jeffrey Ruggiero, a decent man and a good father, a man who’s done nothing wrong throughout the whole sordid saga of his divorce and custody battle, still has no rights to his child.
And why? Add one unscrupulous ex-wife to an already-unhealthy stew of bad DV laws and slipshod court practices and this is what you get. A man can lose his constitutional rights, his job and his child, all based on lies.
Thanks to Jim for the Volokh heads-up.