Research shows that the presence of a gun in the hands of an abuser makes it five times as likely that a female victim will be killed. That inconvenient fact will remain a fact even for a court more attentive to life in 1791 than death in 2023.The Supreme Court is reviewing a 5th Circuit opinion that that struck down a federal law that criminalized possession of a firearm by someone subject to a domestic violence restraining order.
November 6, 2023
"Does even this trigger-happy Supreme Court want to be seen as stripping from women in mortal danger from their intimate partners whatever safety this 29-year-old law has provided?"
Asks Linda Greenhouse, in "Will the Supreme Court Toss Out a Gun Law Meant to Protect Women?" (NYT).
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79 comments:
There's something about the words "want to be seen" that bothers me in this context. The law is the law.
We're so fortunate to have a neutral observer like Linda Greenhouse to supply us with the information we need to make an informed decision about the issues.
Right?
Look at our interesting times. (or Times) When you ask yourself "how did we get here?" this is the answer. If she is telling us the simple truth, we have nothing to fear.
Right?
Since this is the paper of record they won't mind if receipts are kept for future review...
Right?
Restraining orders are given out based solely on the testimony of the complainant. Evidentiary standards are non-existent--the other party doesn't even have a right to be present at the hearing. Would Linda Greenhouse be so blithe with a right she liked?
While I sympathies those affected by domestic violence still... if they want keep such people from owning guns... make domestic violence A FELONY.
Yes it means most likely the defendant will go to trial as most people don't want a felony conviction on their record but... it is not right to take peoples basic rights away for a misdemeanor.
Force a jury trail and let the chips fall where they may.
And BTW.. one can kill others without a gun.. or just ignore the gun law and get one anyway...
if we would get a federal law that criminalized possession of a firearm by ANYONE..
Then the number of people shot by legal gunowners would drop to ZERO!!!
Sure, there would still be Just as Many shooting deaths..
But we could Rest Assured; that Anyone that shot anyone would be liable to criminal prosecution!
Of course.. Come to think about it.. murder is Already against the law, isn't it?
Maybe what we need; is to pass a law, that makes it a crime to violate a law!!
Evidently, due process is merely a matter of rubbing the right lamp.
Rights - capital R - are subject to the whim of those who declare themselves the intelligentsia.
They are not natural nor inalienable. They are no longer critical, with a high bar for any intrusion on such a right.
She doesn’t even consider the case where mutual restraining orders are given and the woman can’t protect herself.
And the dudes weigh in....
Maybe you should get a gun rather than a piece of paper if you are that afraid.
If ATF lawfare regarding restraining orders and entrapment tricks like cutting gun barrels 1/2" too short weren't the norm, there may be a reason for concern here. See the graves of Randy Weaver's wife and son and dog for the consequences of not bending the knee to totalitarian-minded federal agencies.
All kinds of anti-gun lawfare started with the 1934 National Firearms Act, which renders this discussion pointless. The lawfare lasted this long only because the pro-gun people didn't have academic law history research at that time, nor did they initiate counter-lawfare until the 1990s. Revisit all gun laws per post-1960s civil rights era standards before going further.
Hey Wokesters: look at federal gun laws for conscious, obvious, and pervasive anti-black systemic racism.
tim maguire said...
"Restraining orders are given out based solely on the testimony of the complainant. Evidentiary standards are non-existent--the other party doesn't even have a right to be present at the hearing. Would Linda Greenhouse be so blithe with a right she liked?"
Yep. I discovered my wife had got one, as a legal tactic, the moment an army of cops came into my apartment and started searching it for guns. They told me it would last for three months, the distance I could travel, and the reasons I needed to violate that distance.
Three months later, I'm at the end of the first restraining order hearing, when the judge asked me if I have anything to say. My lawyer had advised me not to say anything. I think "fuck him" and (watching him turn white) I tell the Judge what I'd been dealing with, the cults, the affair, my Mother-In-Law, etc., but one item mentioned was a house that reeked of the smell of sage. The judge was a Native American woman, and that was what triggered her and drove her over the edge. She hated that white women in San Francisco were appropriating her culture and said so in this wild diatribe that no one saw coming. (I didn't know shit about NewAge then, so I was blown away.) At the end, she lifted the restraining order and apologized to me for all I've been through. So did the stenographer. My lawyer was pleased and that was the first good day I'd had since the whole thing started.
So I went and beat up my wife - HA!
A firearm in the hands of an abused woman ends any confrontation 100% of the time.
In the words of the late, great Mike Royko, " Nobody ever raped a .38."
All gun control laws are there to disarm people who pose no threat to their fellow citizens.
Yesterday my Browning Citori shot at 50 endangered skeet. It killed 40 of them. Even though I was there it did this all on its own. I don't know why. Skeet are inedible.
When she says "whatever safety," it tends to suggest that she can't actually identify a benefit from the law.
Unfortunately, restraining orders for domestic violence are very easy to get, because what judge wants to deny it when all it does is keep a possible abuser away from his possible victim? But when it comes with other consequences like taking away other rights, then it seems that it should require a conviction before you can take away rights.
Hope Linda returns here for the comments.
That was a classic Althouse blog moment.
My best friend is a female lawyer. She used to do some family law. She tells me women lie all the time in family law cases.
What if the aggressive and violent male abuser identifies as a woman?
Did you know that 75% of all facts in the NYT are made up? All the news that fits the narrative.
It's not going to help in the inner city where unregistered, illegal guns are the norm behind violent crime.
It's a symbolic gesture as usual.
Linda Greenhouse thinks an abuser who plans to kill his wife (or ex-wife) couldn’t use a knife or an axe or a baseball bat? Are all feminists stupid? Is that how they came to be feminists?
A restraining order is a civil matter. You can get a lawyer, but if you cannot afford a lawyer, the court will not appoint one for you.
It is the government's way to get around your rights, and the ideal situation is when mutual restraining orders are filed. Then the government can take the guns of both parties.
If I am wrong about this. If so, I hope someone can correct me.
Research shows that the presence of a gun in the hands of an abuser makes it five times as likely that a female victim will be killed.
A cleverly worded sentence.
That is not the same as saying a domestic abuser with intact civil rights is five time more likely to kill a female victim.
How many of those abusers who shot their victim were legal gun owners? How many were criminals already proscribed from legal gun ownership? Most shootings involve young gang-bangers who don't care about the law, not law-abiding citizens.
Interesting how reading through just a few comments here reveals the depth of bias of the NYTs description of the issue; it doesn't even properly lay out the background or consider the flaws. Instead, it refers to the Second Amendment as a 'Runaway Train'. Sorry to see the Supreme Court having to waste its time considering such basic law, because of the activism of progressive courts. 'Lawfare' doesn't just apply to the former President.
Did you know that 75% of all facts in the NYT are made up?
It’s that low? I’m amazed.
When a writer for the New York Times uses a phrase like “research shows” or “statistics show” without citing a study where we can examine the raw data and the methodology then it’s pretty much guaranteed that said writer is referencing junk science.
Linda Greenhouse is a graduate of Yale Law School.
I am a graduate of No Law School.
I am, however a graduate of a good High School, where I learned that the proper function of the Legislature/Congress is to decide if a law is a good idea, and pass the law for the President's signature, or not.
The proper function of the Supreme Court is not to decide if it agrees with the Congress and President that the law is a good idea and leave it in place or strike it down. The function of the Supreme Court is to decide if the law in question comports with the Constitution, or not. Whether it is a good idea, or if it has accomplished its objectives, is entirely irrelevant to the operations of the judiciary.
I know this.
Linda Greenhouse knows this.
Every Althousian knows this.
Hard times are coming.
The Crack Emcee said...
There's something about the words "want to be seen" that bothers me in this context. The law is the law.
That struck me as well.
Along with the reference to 1751, she seems to be saying the court should be concerned with fashionable, modern sensibilities, but that's exactly the thing our constitution was specifically designed to prevent.
Paul:
if they want keep such people from owning guns... make domestic violence A FELONY.
Bull-shit. Too many states have the "any domestic situations, arrest the male" legal framework. I've watched that happen at a party where the wife was physically abusing the husband and someone called the cops on her. They cuffed and took HIM away.
Bet Greenhouse wouldn't appreciate any promoting of making false accusations carry the penalty that accusation would have incurred be applied to the accuser.
Restraining orders aren't THAT easy to get. There's definitely due process and many requests for a R.O. are turned down.
That said, if a judge issues a restraining order, it should not automatically result in losing one's gun rights. That WOULD be denial of due process, IMO. Somebody should only have to forfeit their firearms if there's a particularized showing that they're apt to use a gun against the person filing for the R.O. For example, if the R.O. was issued on the basis of nothing more than slapping and shoving, it should not entail impeding on the defendant's 2A rights.
If a law against murder is insufficient deterrent, what is Mx. Greenhouse's logic that a law against owning a gun is a sufficient deterrent? Her statistical anecdote is like saying victims of drunk driving are more likely to be killed if the drunk driver is using a car with an internal combustion engine, therefore we should ban drunk drivers from owning ICE vehicles.
The Linda Greenhouses determine how cases like this are conceptualized. That's hugely powerful.
From the 5th Circuit opinion being reviewed:
"Or it may simply include a general prohibition on the use, attempted
use, or threatened use of physical force reasonably expected to cause bodily
injury. The covered individual forfeits his Second Amendment right for the
duration of the court’s order. This is so even when the individual has not
been criminally convicted or accused of any offense and when the underlying
proceeding is merely civil in nature."
In a civil procedure with no lawyer and not being found guilty of any criminal offense, the judge can simply take away your second amendment rights by order.
I had a divorce lawyer friend when I lived in Marin County who told me that there was a judge there who would summarily throw the man out of the marital house if the woman merely said that he had hit her at some point in their marriage. No testimony from the man needed or wanted or allowed. Say the words, honey, he is gone. So of course they said the words. I rather doubt that this judge was unique.
See the graves of Randy Weaver's wife and son and dog
Thank you. Let us never forget them.
And never forget lon horiuchi, the government assassin who murdered them in cold blood.
John Henry
“Evidently, due process is merely a matter of rubbing the right lamp.”
Linda, there is a legal term that you should know, purporting to be a legal expert, and that is “ex parte”. What that means is that one parte goes into court, and walks out with the restraining order. The other party doesn’t get their say. Doesn’t get to cross examine their witnesses. Etc. It’s a classic case of lack of Due Process. That is the question here - should courts be able to strip people of this fundamental, enumerated, right without Due Process.
Part of why that is important is that people lie in divorces, all the time. And probably (IMHO) most likely to lie are women with female divorce attorneys. Judges aren’t going to throw them in jail for lying.
The other thing is that guns are the great equalizer. They are esp useful to women in an abusive relationship. What the purported study cited by Linda no doubt failed to consider was how often a gun in the hands of a potential abuse victim prevents abuse. None of the studies by leftists trying to justify banning guns take that into account. And that is because it is hard (and inconvenient as to the results) to determine. We do know, from studies, that guns are far more likely to be used defensively, than offensively - at least at a factor of 10x. Which means that she is very likely lying through her teeth, no doubt having heard that statistic. Of course, li.Thant’s do that all the time. But she is purporting to be an unbiased legal expert. Ha!
I see you have a tag for Linda Greenhouse. That's unfortunate. You shouldn't encourage her.
Your inalienable rights end at the mood of a woman. Codified by law. Men allowed this to happen.
From grade school education to corporate boards, the entire American society is woman centric.
Few places,for the men who even noticed,can speak up.This blog is one of the few.
Browbeat by decades of commie propaganda, You didn't just allow women to rule you, you allowed the ones that want to destroy you.
Nice work,men.
Blame the gun, blame the scalpel, what is a feminine gendered to do. NYT is infamous for diverse... colored, em-pathetic commentary to target, divide, and sequester perceived "burdens"... uh, burdens.
Liberal religions ("ethics") allow... nay, normalize... encourage... celebrate witch hunts, warlock judgments, diverse equity and inclusion, and abortion of perceived burdens for social, political, and climate progress.
Upholding this law should be a no- brained for the Court. I’m predicting 6-3 or 7-2 to uphold the law.
@Bruce Hayden: If one party gets an ex parte TRO, the object of that TRO can challenge it at a hearing for a preliminary injunction, a hearing at which the allegedly abusive husband or boyfriend can present evidence that he’s not really abusive. I’m not seeing any kind of due process problem with this system.
Because women never lie, especially in custody battles.
trigger-happy Supreme Court
See also Dahlia Lithwick, “The case has the potential to weaponize the court’s Second Amendment extremism against victims of domestic abuse.”
Apparently no one taught these highly educated women that breathless cliches are unpersuasive.
Forget it Jake. It's just Linda Greenhouse hyperventilating--again.
Calm down Linda. You sound hysterical. Weren't you predicting widespread death after Dobbs?
Leland said...
If a law against murder is insufficient deterrent, what is Mx. Greenhouse's logic that a law against owning a gun is a sufficient deterrent? Her statistical anecdote is like saying victims of drunk driving are more likely to be killed if the drunk driver is using a car with an internal combustion engine, therefore we should ban drunk drivers from owning ICE vehicles.
All good points.
"the trigger-happy Supreme Court"
The ever-frumpy Linda Greenhouse at her finest. Nina Totenberg, equally frumpy, could have said the same thing.
Two harridans of a feather.
The problem is the law doesn't actually protect women- no one who is going to shoot an ex-girlfriend or wife is going to give a shit about a restraining order or a law saying he cannot have gun. This is the thing that anti-gun activists apparently never understand.
The bar for restraining orders is low to protect women. The bar for taking guns away is high to protect everyone from tyrannical governments.
Douglas Levene,
The 5th Circuit ruling is far too broad. Any issued T.R.O give a judge the power to remove one's right to own guns and gives the target no recourse to regaining them. However, note that this is only effective at the removing the guns from the owners who would already obey the law against murder. What's next- saying that a T.R.O. allows a court to prevent the owning of a knife or an ax? A law should make sense. What's to prevent a man from getting a T.R.O. against an ex that he wants to kill, but is worried that she might be armed when he tries?
When stories like this crop up, I like to refer back to an oft-cited and now completely discredited study by Kellerman, etc al., published in the Journal of tha American Medical Associstion in 1993, to great acclaim.
Kellerman concluded that having a gun in the home increased significantly the risk of gunshot death to those living there.
His study found that of statistically significant factors correlated with gun death, a gun in the home was #6, below such risky choices as living in an apartment versus a house, for example, which was twice as dangerous as having a gun indoors.
This study is of the same type as that described here. Not exactly completely bogus, but wrong enough to be useless to understanding the subject at hand.
Have more women been beaten to death or shot to death by their abusers? Can't tell even that rudimentary detail from the story.
.
"no one who is going to shoot an ex-girlfriend or wife is going to give a shit about a restraining order or a law saying he cannot have gun."
"I'd shoot that lying tramp if it wasn't for this restraining order keeping me from having a gun", said nobody ever.
A man should not involve himself with women or children as they are the means by which he loses most of the his constitutional rights. Loss of 2nd amendment. If you have kids, the state can contrive to enter your home without a warrant. Divorce and family court will strip you of your liberty and pursuit of happiness. Some may warrant such actions, but the power is abused. Men must protect themselves by avoiding the entanglements in this time of lawfare against those the regime dislike.
Critical context: this case will be decided in an election year, the Democratic presumptive nominee is losing, and women must therefore be generously infused with fear BAMN.
“@Bruce Hayden: If one party gets an ex parte TRO, the object of that TRO can challenge it at a hearing for a preliminary injunction, a hearing at which the allegedly abusive husband or boyfriend can present evidence that he’s not really abusive. I’m not seeing any kind of due process problem with this system.”
Agreed. That is how it’s supposed to work. But plenty of times, the restrained party wasn’t given that chance. Have you ever seen a process server lie? I sure have. And even so, Preliminary Injunctions don’t have the evidentiary burden that permanent injunctions do. It’s not just likelihood of success on the merits, but must also include the other equitable factors, including the possibility of irreparable harm. Someone getting shot would very likely constitute irreparable harm. So what about judges who take Linda’s bogus statistics seriously?
But something else. What is the burden of proof required? Beyond a resasonable doubt? Of course not. Preponderance of the evidence? Or more likely, in an abundance of caution. Remember, you are talking at best a PI. Which is fine, except that a fundamental enumerated right is being denied, often by a partisan judge, on those grounds. (We all know the stories about judges that automatically side with the woman - we had one in Denver who did so almost 99% of the time). Imagine depriving Free Speech on those grounds, with that standard. After Bruen, declaring that the right to Keep And Bear Arms is not a second class right, this law likely won’t be found to be narrowly - for one thing because no full adversarial fact finding hearing, with a stiff burden of proof, is required before issuing the order.
As the victim, for 10 years, of my wife's ever-increasing domestic violence -- as a farmer *I* could not leave, and had a young daughter [also abused violently] to protect until I had enough documentation to swamp the family courts' heavy bias against men -- I **assume** the perp has a gun, or a butcher knife, or an axe, and will use it if she has the chance. And I take appropriate protection measures.
Many men bear a single DV conviction resulting from a single incident exploited [perhaps even instigated] by the woman, knowing the courts were heavily biased in her favour. So I support 5th CCA's decision in this case. Multiple DVs are a different question, falling into the realm of "habitual offender", which is in Ann's sandbox, not mine.
Ancillary is the question of mental illness. At the federal level, code [18 U.S.C. § 922(d)] says NO, sort of. It did not stop the Lewiston shooter. Here in Kansas, the threshold is "involuntary commitment" for either mental illness or addiction. The challenge is that much DV arises from mental illness.
Worse in my case has been that essentially nobody believes women violently abuse not only men, but their own children.
In a fucked up world where asking a college girl out a second time after being rejected the first is sexual harassment.Restaining orders are handed out like hotcakes. The courts order them on fathers attempting to rescue daughters from crack houses.
Due Process Demands Stricter Standards for Restraining Orders That Negate Gun Rights
Under 18 USC 922(g)(8), which Congress approved as part of the Violent Crime Control and Law Enforcement Act of 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess or receive a firearm when he is subject to a court order that restrains him from "harassing, stalking, or threatening an intimate partner" or the partner's child or from "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury" to the partner or the partner's child. The order must be preceded by a hearing of which the respondent "received actual notice," and it must include either a finding that the respondent poses "a credible threat" or language that "prohibits the use, attempted use, or threatened use of physical force" that "would reasonably be expected to cause bodily injury."
To issue an order, in other words, a judge need not conclude that the respondent actually poses a threat. To trigger the loss of gun rights, the order need only include boilerplate regarding the use of force. And as 5th Circuit Judge James C. Ho noted in his concurring opinion last February, orders that include such language are "often used as a tactical device in divorce proceedings," "are granted to virtually all who apply," are "a tempting target for abuse," and in some cases have been used to disarm the victims of domestic violence, leaving them "in greater danger than before."
Are the procedural protections specified by Section 922(g)(8) enough to guarantee the "due process" that the Fifth Amendment demands before someone can be "deprived of life, liberty, or property"? The Cato Institute, joined by the Goldwater Institute, thinks not.
When Congress enacted this provision, the Cato brief notes, the Supreme Court had not yet recognized that the Second Amendment protects an individual right to arms, which happened 14 years later in District of Columbia v. Heller. "The bare-bones framework for dispossession upon issuance of a domestic violence restraining order set forth in § 922(g)(8) evinces a legislative perception that the stakes for the gun owner are negligible and that the amount of process required to extinguish his Second Amendment rights is correspondingly minimal," Cato says. "Thus, all that § 922(g)(8) requires is notice of the proceeding and an opportunity to participate, together with either an express finding of dangerousness or an explicit prohibition of the use or threatened use of force against an intimate partner or child."
Note - using the second alternative, a judge can merely issue the order prophylacticly, to deprive the party of their 2nd Amdt rights. No proof of dangerousness is required. None!
Continued
Now that armed self-defense has been recognized as an interest on par with other constitutional rights, Cato argues, due process clearly requires more. Currently, federal law does not require notice to the target of an order that it will deprive him of his Second Amendment rights, which he may not realize. That information is important, Cato says, because a respondent might not be inclined to contest an order that he thinks will merely forbid conduct that is "already unlawful (physically assaulting another person)" or "at the very least unethical (harassing, stalking, or threatening an intimate partner or their child)."
Respondents may also surmise, based on judges' readiness to issue protective orders "to virtually all who apply," that challenging them would be futile or worse. Cato notes that respondents have no right to be represented by an attorney if they cannot afford one and may end up having to pay the other side's legal fees. In Texas, where this case originated, that obligation goes only one way: Fees are shifted to the respondents if they lose, but respondents cannot recover their fees in the (unlikely) event that they prevail.
Section 922(g)(8) not only does not require a finding that respondents are dangerous. It also does not specify a standard of proof to establish that optional element. In most states, a "preponderance of evidence" is enough, meaning the proposition is more likely than not to be true. In the context of terminating parental rights, by contrast, the Supreme Court has held that a higher standard is required: "clear and convincing evidence."
…
Section 922(g)(8) is "both historically anomalous and legally deficient in failing to ensure an adequate measure of procedural due process," the brief says. "The threadbare procedures set forth in § 922(g)(8) would be considered woefully inadequate to support the abrogation of other fundamental rights," such as the right to travel, the right to access the internet, or "the ability to petition the government for redress of grievances by attending a city council meeting." The "right of armed self-defense," Cato argues, "is no less important and no less entitled to an appropriate measure of procedural due process."
The guilty until proven innocent paradigm renews the witch hunts of old and aborts due process as a civil right. This is tantamount to equivalence and incitement of diversity (i.e. color judgment, class-otiented bigotry) that sabotaged #MeToo etc. and left women and girls at forward-looking risk.
"Does even this trigger-happy Supreme Court want to be seen as stripping from women in mortal danger from their intimate partners whatever safety this 29-year-old law has provided?"
Asks Linda Greenhouse, in "Will the Supreme Court Toss Out a Gun Law Meant to Protect Women?" (NYT).
Research shows that the presence of a gun in the hands of an abuser makes it five times as likely that a female victim will be killed. That inconvenient fact will remain a fact even for a court more attentive to life in 1791 than death in 2023.
1: What does "the research say" about women's safety when a "waiting period" keeps them from being able to buy a guy to protect themselves?
2: What does "the research say" about women's safety when they themselves own firearms?
3: I note that Greenhouse does not even ATTEMPT to claim that the restriction is actually Constitutional. Just that she politically prefers it
God these people are pathetic
tim maguire said...
Would Linda Greenhouse be so blithe with a right she liked?
Linda's side believes that they have all the power, and therefore there are NO "rights" that they like.
because all "rights" do is get in the way of the gov't doing something. And since the Left assumes they will be the gov't, and the ones doing, no fights matter.
Douglas B. Levene said...
Upholding this law should be a no- brained for the Court. I’m predicting 6-3 or 7-2 to uphold the law.
Douglas shows once again that he has no brain
Douglas B. Levene said...
@Bruce Hayden: If one party gets an ex parte TRO, the object of that TRO can challenge it at a hearing for a preliminary injunction, a hearing at which the allegedly abusive husband or boyfriend can present evidence that he’s not really abusive. I’m not seeing any kind of due process problem with this system.
Hmm, let's see, you lose your rights for months, then YOU have to "prove" that you should get your rights back, rather than the other party having to prove that you deserve to lose them?
This is your idea of "due process"?
yes, you have no brains, no morals, and no human decency. Thank you for displaying that so clearly, Dougie
In most cases, ex parte TROs only last for a couple of weeks at the most. Then there has to be a hearing on a preliminary injunction. At that hearing, the party seeking the preliminary injunction has the burden of proof.
As usual, you have no idea what you are talking about.
Douglas B. Levene said...
In most cases, ex parte TROs only last for a couple of weeks at the most. Then there has to be a hearing on a preliminary injunction. At that hearing, the party seeking the preliminary injunction has the burden of proof.
****************
Is the hearing on a preliminary injunction also ex parte?
If not, does the person against whom the TRO will be issued against have a right to counsel? If so, fine.
But if not---even though he risks losing a constitutional right---that sounds like a lack of Due Process.
IOW a civil process that can cost a person a Constitutional right seems manifestly unfair.
Are there any other areas of law that permit this?
Enlighten us, will you?
Two Douglas B. Levene in one:
"@Bruce Hayden: If one party gets an ex parte TRO, the object of that TRO can challenge it at a hearing for a preliminary injunction, a hearing at which the allegedly abusive husband or boyfriend can present evidence that he’s not really abusive. I’m not seeing any kind of due process problem with this system."
And
"Then there has to be a hearing on a preliminary injunction. At that hearing, the party seeking the preliminary injunction has the burden of proof."
Argue amongst yourself.
“In most cases, ex parte TROs only last for a couple of weeks at the most. Then there has to be a hearing on a preliminary injunction. At that hearing, the party seeking the preliminary injunction has the burden of proof.”
But likelihood of success on the merits is only one equitable factor to weigh. What about preserving the status quo, when the status quo is neither party being shot, esp given Linda’s BS statistics?
But the more important Due Process criticisms are in the article I linked to, and partially quoted. The judge doesn’t even need to bother with an evidentiary hearing, if they include the boilerplate not to do anything illegal in her decree. The respondent has no right to an attorney, nor to have one appointed, if they can’t afford one. And in TX, where the case apparently started, there is a one way fee shifting statute. Winning petitioners get their attorneys’ fees paid, while respondents don’t. Moreover there is no requirement that the judge inform the respondent that he will lose his 2nd Amdt rights if he agrees (to not do anything illegal, besides owning guns). Again, burden of proof is by a preponderance of the evidence, instead of the standard (for deprivation of rights) by clear and convincing evidence.
My prediction is 6-3, likely severing the 2nd alternative, that imposes this draconian remedy after the judge merely includes the prescribed boilerplate, and doesn’t, at a minimum, conduct an evidentiary hearing. We shall see.
The Second Amendment extremism of the current court is nothing compared to that of the crazy bastards who wrote the Amendment.
"...present evidence that he’s not really abusive."
Husband: Your honor, I am innocent. I have never been abusive to my wife.
Judge: Innocent you say? Prove it.
"I’m not seeing any kind of due process problem with this system."
I sure as hell do.
"In most cases, ex parte TROs only last for a couple of weeks at the most. Then there has to be a hearing on a preliminary injunction. At that hearing, the party seeking the preliminary injunction has the burden of proof.
As usual, you have no idea what you are talking about."
But the above does NOT track with the words YOU used,"the allegedly abusive husband or boyfriend can present evidence that he’s not really abusive."
That clearly says the burden of proof is on the husband or boyfriend. If you misstated the situation in the earlier post just own up to it.
"At that hearing, the party seeking the preliminary injunction has the burden of proof."
Disparate impact applies here. Those who cannot afford a lawyer will not be appointed one. If the government wishes to strip away important rights granted by the constitution, it should charge and convict of a crime. Then the defendant will be guaranteed legal representation who can competently argue to the judge that the party seeking the preliminary injunction has the burden of proof.
Douglas B. Levene said...
"In most cases, ex parte TROs only last for a couple of weeks at the most. Then there has to be a hearing on a preliminary injunction. At that hearing, the party seeking the preliminary injunction has the burden of proof.
As usual, you have no idea what you are talking about."
All the more reason for the lady to aquire a firearm.
More people are murdered my fists and feet than guns.
But we all admitt, gun laws are just window dressing. Safety is NEVER the reason, just a fabricated excuse.
The fact that the proponent of a preliminary injunction bears the burden of proof does not eliminate any need for the opponent to present evidence. If the proponent offers evidence that the opponent is a wife beater who likes to threaten people with guns, and the opponent offers no evidence, the opponent will lose.
. If the government wishes to strip away important rights granted by the constitution,
The Constitution does not grant rights. It acknowledges the rights of man."Endowed by our creator with certain inalienable rights". The Constitution Bars the Government from taking specific actions
Douglas B. Levene said...
The fact that the proponent of a preliminary injunction bears the burden of proof does not eliminate any need for the opponent to present evidence. If the proponent offers evidence that the opponent is a wife beater who likes to threaten people with guns, and the opponent offers no evidence, the opponent will lose.
The fact that a proponent of a preliminary demand that a man lose his 2nd Amendment rights is only required to win on the "preponderance of the evidence", and that they win over 90% of the time, means that the system is garbage.
Anything less than "beyond a reasonable doubt" is unacceptable. Allowing it in an ex-parte hearing is unacceptable.
You defending both those things shows us that you are a monster
Douglas B. Levene said...
In most cases, ex parte TROs only last for a couple of weeks at the most.
Ah, so you're only stripped of your Constitutional rights, including your right of self defense, for "a couple of weeks at the most" before you need to spend $10,000 to defend your rights at a hearing where the judge has every incentive to rule against you, and faces a minimal "burden of proof" to do so.
And you find this perfectly reasonable
When it comes to "no brainer", you are indeed teh champ.
So an abuser gets an ex-parte TRO to disarm his wife, and then goes in next week and kills her, because now she no longer has a gun with which to defend herself.
THIS is what Douglas B. Levene calls "justice"
Transcript from today's argument:
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_6jgm.pdf
JUSTICE ALITO: Well, we are told in some of the amicus briefs that there are situations in which the family court judge who has to act quickly and may not have any investigative resources faces a he/she -- a he said/she said situation, and the judge just says: Well, I'm going to issue an order like this against both of the parties. Do you agree that that occurs?
GENERAL PRELOGAR: No. I think that that is largely a mischaracterization of what is happening in the -- the state courts day in and day out. With respect to mutual protective orders in particular, the vast majority of states -- we cite a source that counts 48 of
them -- either prohibit outright or substantially restrict the entry of those kinds of mutual protective orders.
And then I think the account is basically trying to suggest or insinuate that these state courts are nevertheless entering protective orders that are not justified by the facts and the law, and that just flies in the face of the presumption of regularity that this Court applies in this context.
So, she understands that state courts ARE doing this, but demands that SCOTUS pretend they aren't.
That would be how "the presumption of regularity" would be applied here
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_6jgm.pdf
Alito goes for the Jugular:
JUSTICE ALITO: One more question. In response to my question about the provision that prohibits the possession of a firearm by someone against whom an order prohibiting violence has been entered and the provision doesn't on its face require a finding of dangerousness, as I recall, your answer was that state laws generally do require that and anyway, equitable principles require that. Now suppose someone is later prosecuted for violating that provision. Could -- would it be a defense for that person to say that the state law in question did not require such a finding and, in fact, there was no such finding in my case?
GENERAL PRELOGAR: I don't think that that would provide a basis to collaterally challenge the entry of the protective order in
the federal prosecution. And we don't think that this -- that there should be a system of as-applied challenges in this context, because I think that what we know is that Congress is entitled to make categorical judgments, predictive judgments of dangerousness based on history and tradition even in -- if there are really edge cases where that predictive judgment wasn't actually necessary to guard against a danger there.
IOW, all previous claims that this isn't a rights violation are a lie
Thank you Liz
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