|
by
Robert Marlett
While they come in several names, the two are essentially
the same in their effect - they prevent you from doing various
things, going various places, or associating with certain
people. In common terms, they are presented basically as
a restatement of the law... "All this does is say you can't
be violent towards (whoever)" but the devil is in the details,
as it so often is. In reality, it revokes your rights under
the First and Second Amendments, and in most cases under
the Fifth, Sixth, Eighth, and Fourteenth Amendments as well.
While it directly impairs your rights to freedoms of speech
and association, and normally your right to own firearms
or other means of defense - the others are hidden treasures
for the state prosecutor that you don't hear about at first.
There is a very serious problem with these orders - they
not only lower the burden of proof needed for a criminal
conviction, they create a presumption that you are violent
- something that would otherwise have to be proven. Many
people think these "restraining orders" or "Injunctions
for Protection" are nothing of importance because they have
no intention of being violent, but the truth is that the
exact opposite is true. It is those people who need to prevent
the entrance of such an order because they might very well
become "violent criminals" as a result of the order whether
they are violent or not. It is for that reason that I write
this article.
How does it happen - the effect of a TRO or Injunction
is to create a presumption that you are a violent criminal.
Before one can be issued, a court has to find "substantial
likelihood" that you have and/or will engage in criminal
acts of violence. If you agree to such a finding - you are
forever a violent criminal in the eyes of the court and
the law, and your rights will not be restored when the Injunction
or restraining order expires.
But it's worse than just the presumption that you have
the ability to commit a crime of violence within your nature.
Much worse than that is the fact that the entry of such
an order against you drastically lowers the burden of proof
needed to obtain a conviction should you ever be accused
of violating the order. The prosecution would no longer
need to prove that a crime was even committed at all - only
that you were present and thus had the opportunity. (or
in the event that the violation was a simple phone call
- your presence need not even be established.) Your presence
alone becomes a criminal act... and an easy one to prove,
whether you are guilty or not. Your rights to force the
prosecution to establish every element of a crime go out
the window with the issuance of an injunction...
You have a right to both procedural and substantive due
process before such an order can take effect - what that
means is simple - 1) procedural due process only means that
you have a right to a hearing at which you have the opportunity
to speak and be heard, and that you have opportunity prior
to that hearing to prepare your defense. 2) substantive
due process means that you have the right to make them prove
their case before the entry of any order against you. This
means, in this context, that they must prove to the court
that there is a substantial likelihood that you will commit
acts of violence, and you have an opportunity to rebut the
evidence raised against you. In the terms of the law, you
must be given a meaningful opportunity to present your case
before a neutral decision-maker. BUT
When you walk into the courtroom, evidence - generally
in the form of a sworn affidavit, has already been presented
against you... until and unless you rebut that evidence,
the court presumes it to be valid, so you really aren't
going before a neutral court... you are walking in with
a presumption of guilt against you because of the evidence
presented... if the affidavit alleges enough facts to support
the issuance of the injunction, IT WILL ISSUE unless you
rebut that evidence.
While each state has differing standards, the common
denominator is that the person seeking the injunction must
prove the substantial likelihood that irreparable harm or
injury will occur. If they have stated sufficient facts
to get the temporary restraining order beforehand (normally
that's you folks find out that an injunction has been applied
for in most states) then you have to assume that the same
evidence would be considered sufficient to get the injunction.
You'd better find some flaw in that affidavit, or the injunction
will most likely issue against you. Many states now are
using these injunctions to permanently take away your gun
rights.
On a few rare occasions, the facts in the affidavit are
not sufficient, they just weren't examined by the Court
prior to issuing the TRO (Temporary Restraining Order) so
the case won't be difficult to defeat most of the time.
However, it is still advisable to launch an attack on the
contents and integrity of the affidavit as a precaution
- primarily to bring that insufficiency to the attention
of the Court. Did they state something they couldn't possibly
know themselves? Is there hearsay in the affidavit? provable
perjury? (the truth doesn't matter - only what can be proven
matters in a court room) {Don't kill me here - moral
integrity and honesty are very important, albeit rare, in
court proceedings - but if they have given sworn testimony
to a fact, it is a fact unless and until you prove it false...
regardless of what the truth is - it's in the record - it's
the truth.}
Typically, the real issues in an injunction hearing are
limited to this: Can the sum of the evidence provided by
the parties sustain a claim that a threat of harm exists?
Is there "substantial likelihood" that harm will occur if
the Court does not intervene?
The Court generally will not allow an all-out attack
on the integrity of the person seeking the injunction -
they generally will allow such an attack on the person responding
to one.
If I were teaching people how to defeat a petition
for an injunction (that's not giving legal advice... its
teaching) I would have to say the following:
Try to attack the evidence- not the person giving it,
when possible. The result is an obvious attack on their
personal integrity... but not a personal attack. Since you
generally don't know what evidence will be presented against
you other than the affidavit - you need to prove that the
affidavit is flawed... that should work miracles, because
it proves that the affiant is not a trustworthy source of
information, and at least to that extent, you'll be allowed
generally to attack the credibility of the person seeking
the injunction... once every flaw has been probed, I'd even
make a comment to that effect... and maybe even seek to
strike the affidavit from the record if there is substantial
flaws that could merit such a move. The court probably won't
strike it - but it will be forced to consider what - if
anything - of merit remains intact of the affidavit on which
to base the case against you. If you've definitely proven
certain flaws, but not really substantial ones - move to
strike those lines from the affidavit. Again this forces
the Court to consider how much provable truth the affidavit
contains, and what has been said simply for its effect but
should not be considered.
Your job in responding to a petition for injunction is
to 1) prove that no threat of harm exists. 2)
prove that even if there appears to be a threat of harm,
that there is no substantial likelihood of that harm (or
that the Courts involvement would not mitigate that threat)
and 3) prove that the evidence presented by the Petitioner
is flawed or false. NOTE: Point Number 2 is dangerous
ground that will often come back to bite you in the rump...
try if at all possible to avoid getting into that territory.
KEY POINTS
*
The burden of proving that a threat exists is on the Petitioner.
*
It is unlawful to use the injunctive powers of the court
strictly for legal strategic positioning.
*
One lie by the Petitioner can be evidence of a lack of credibility,
and making the point several times before saying so can
eliminate the presumption against you when you walked in...
resulting in a fair hearing, or even one tilted in your
favor.
*
If no threat can be proven, no threat exists that merits
the court placing undue restrictions on you Constitutional
rights to travel, to associate, and to arm or defend yourself.
*
Being unresponsive to your spouse's needs, a cheating spouse,
or a lousy lover doesn't make you a violent criminal and
doesn't merit the entry of a civil order restricting rights
that are protected unless and until a criminal conviction
is obtained against you.
* Agreeing to the entry of an injunction would
create presumptions against you if false allegations are
made in the future, and would be a waiver of the full panoply
of Constitutional protections that are guaranteed to the
accused in criminal proceedings - you simply cannot accept
that.
* Agreeing to the entry of an injunction against
you would reduce the burden of proof if future false allegations
are made against you, forcing the state only to prove opportunity
to establish a crime, and not that a crime had even in fact
been committed. You simply cannot waive your due process
rights in that way.
*********************
The author is not an attorney, and is prohibited
by law from offering legal advice. This information is provided
strictly from the research and experience of the author,
and is offered for its educational value. It is not advice
- it's education... so go teach 'em a lesson.
Don't
lay down when your gun rights are in jeopardy!
|
