Searching for weapons going too far in PA?

[Township75]

Pa. court's decision on seizure of guns to protect the abused

Monday, November 15, 2004

By Nate Guidry, Pittsburgh Post-Gazette

The state Superior Court issued a ruling earlier this month that delighted victims' rights advocates and is likely to enrage gun enthusiasts.

The decision upheld a Montgomery County judge's ruling that because James C. Mueller Jr. had a protection-from-abuse order served against him, both his weapons and a gun belonging to his father could be taken away.

The court ruled 2-1 that when a PFA order is issued, authorities can conduct searches for weapons, including in residences and vehicles that do not belong to the person accused of abuse, and confiscate anything they find.

Full story here:
http://www.post-gazette.com/pg/04320/412008.stm

[Tandalayo_Scheisskopf]

1. I have a scanner.

I can hear police departments in PA and NJ. I have heard several calls involving PFA violations and guns. One guy ended up being shot in the head and killed when he was threatening his wife with a gun and she was finally able to pull her own gun and literally blow his head off. At least most of it. They had to call in a crime scene reclamation crew. That means it was pretty messy.

If there had not been guns in this situation, things might have ended differently. He is dead and she is in jail, facing trial.

There are children in this mix.

PFAs are usually emotionally charged. Where there are guns available, the potential is high for tragedy. I think surrendering guns for a period of time may just be prudent, considering the things I have heard.

[Jack_DeLeon]

12. Why is the woman in jail?

sounds like self defense to me.

Hopefully she gets off.

[yellowcanine]

2. Amazing that gun rights supporters would defend this guy. They are going

to lose in the court of public opinion. They say "focus on the behavior - not the guns". Well, someone who points a loaded weapon at another person without just cause has lost his right to have a gun if he is not even going to show up in court to defend his actions. Doesn't matter if his father owns the guns. If his father is going to allow someone with a PFA order against them access to the guns he loses also.

[el_gato]

5. Quit dreaming this is about taking people's guns that don't even belong

to the person in question.

From the article:
"including in residences and vehicles that do not belong to the person accused of abuse"

It's your freedom you are losing.

[TX-RAT]

7. Standard search warrant in this case.

All residences where he lives.
All vehicles at those residences.

[TX-RAT]

3. Texas has had this for years.

Even a Peace Officer can have his weapons removed as long as a protective order is in effect.

[DoNotRefill]

16. the problem with this...

is that it authorized a search and confiscation of property that didn't belong to the person with the restraining order on them.

That's like imprisoning somebody for crimes committed by their spouse or parents or children.

[iverglas]

20. oh yeah

Having your bang-bang stick taken away temporarily is like being imprisoned.

And of course what it's really like is being shot dead by your estranged husband ...

Seems like, as TX-RAT said, daddy had a choice. Evict the problematic husband/son from the homestead, or acquiesce in the removal of firearms from his reach. Très simple. Housing someone banned from possessing firearms carries a little consequence. A really very little one.

The court order prohibited the estranged husband from something that amounted to having firearms in the household where he resided, and he apparently chose to reside in a household where there were firearms. Well, maybe it would have been better all round if the cops had removed him, rather than the gun, from the house. Gosh, I wonder whether they might even have offered that option ... not having been there, I couldn't say.

I wonder. If the cops had had an arrest warrant for him, could they not have searched daddy's house to find him?

[DoNotRefill]

28. How about having your right to be free....

from unreasonable searches and seizures violated because of a houseguest?

Where was the need to search the father's vacation home and car?

That shit wouldn't fly down here. It wouldn't matter if it was guns, adult sex toys, drugs, or whatever.

I think if this case involved anything other than guns (say, for example, if it was a drug case), you'd be pissed as hell that the father's rights were violated.

[TX-RAT]

25. search and confiscation of property that didn't belong to the person

The officers serving the warrant don't have any idea who the weapons belong to. The warrant could say all weapons at his residence and all residences where he may reside. If he's living with his father, then thats his residence.

[DoNotRefill]

27. How many residences did the guy have?

They apparently went through ALL of the father's property (two houses, a car), NOT just the house that the person lived at.

Down here at least, there's no way what they did in PA would fly. If the guy lived at his parent's house, they could search common areas and his room, but not the entire house, and certainly not another house that the guy didn't reside at.

[TX-RAT]

29. Down here ? Where would that be?

Whats to keep the boy from going to the other property and retrieving another weapon? Whats to keep him from going into his fathers room and getting a weapon? I served search warrants that allowed us to search every vehicle on the property, including peoples vehicles, that were visiting at the time the warrant was served. One of those warrants turned up 14 stolen guns and 3lbs of marijuana, that was in the trunk of a vehicle that was visiting. Talk about being in the wrong place at the wrong time!

[DoNotRefill]

30. Virginia.

what's to keep that same boy from breaking into a neighbor's house and getting the guns kept there?

Punish the perpetrator, not his family. Pretty simple.

[el_gato]

4. the ever present slippery slope

Here's the main issue:

"including in residences and vehicles that do not belong to the person accused of abuse"

[TX-RAT]

6. Sounds like he needs to move out of his dads house.

At least his dad will get his weapon back.

[JeebusB]

8. The lesson to be learned here is...

Always have a plan.

If you are a gun owner, make arrangements to get rid of your guns should in the event you find yourself in such a turbulent situation. Is there a friend or relative you would trust to buy your guns for $1.00, then sell them back to you once things have settled down? Think about off-site storage.

In Texas, at least, there's supposed to be a hearing before someone is put under a protective order. The subject is supposed to be able to defend himself and the person seeking the order is supposed to show cause for the order. I don't know how often these hearings actually take place. When I got divorced in '87 there was no such hearing. I was slapped with a protective order and was highly insulted about it since I'd never raised my hand against her. My atty. told me it was just boilerplate and most lawyers file the motion as a matter of course when filing the divorce papers. (shrug)

In the Emerson case, Emerson lost his 2nd Amendment argument because the district court said that since he'd had the opportunity for the hearing, that his 2nd Amendment Rights were being adequately safeguarded. Perhaps Tx-rat can shed some light on whether or not these hearings actually take place or if it's just all a big lie.

[iverglas]

9. oh dear!

"When I got divorced in '87 there was no such hearing. I was slapped with a protective order and was highly insulted about it since I'd never raised my hand against her."

You mean ... that profile you used to have available, saying that you were female ... was ... not true??

And so when you called me and another woman on this board "gurl", you really were just being a rude, patronizing misogynist man?

Just asking.


"Is there a friend or relative you would trust to buy your guns for $1.00, then sell them back to you once things have settled down? Think about off-site storage."

You could think about all that, but wouldn't it all be just a tad ... illegal? Off-site storage is possession, it would seem to me. As is a sham transfer to a proxy. Even if by "once things have settled down" you did mean "when the order is no longer in effect".


"My atty. told me it was just boilerplate and most lawyers file the motion as a matter of course when filing the divorce papers. (shrug)

Gosh, perhaps even back then there was an intuitive sense on the part of family law lawyers of what has now been empirically established: that women are at most risk in the time surrounding the termination of a relationship. And of course that many abused women don't expressly report abuse.

A client of mine in a non-family law matter was shot dead by her sister's estranged husband. I had no idea that there was any marital conflict in the household. You can bet that after that I would never, as matter of professional competence, have assumed that any client of mine was not at risk.

How awful, though, that you should have temporarily lost access to your toys on the theory that some woman somewhere was in a position of heightened vulnerability to murder, and in fact the certain knowledge that some woman somewhere was going to be shot dead by an estranged husband, but since she could not be readily identified and protected, there being no way to predict the future, it might be a good idea to make a small imposition on everyone's liberty in order to protect a life or several.

More important, surely, that you should not have been denied access to those toys for an instant.

[TX-RAT]

10. Always have a plan? Hide your guns, thats your plan.

(In Texas, at least, there's supposed to be a hearing before someone is put under a protective order.)

Sounds like there was one. Your wife or her attorney, has to apply through the District or County Attorney.
Threat of violence isn't the only reason for protective order. Transfer or disposal of property, visitation of a child,child support,even mandatory counseling.

(My atty. told me it was just boilerplate and most lawyers file the motion as a matter of course when filing the divorce papers. (shrug))
A person who has a divorce pending is eligible for a protective order.

(Perhaps Tx-rat can shed some light on whether or not these hearings actually take place or if it's just all a big lie.)
You won't be invited to any meeting between your wife or her Attorney when they go to apply for a protective order.

Didn't you say you were a DPS Trooper? I so you should have known.

[JeebusB]

11. I never said any such thing.

"Didn't you say you were a DPS Trooper? I so you should have known."


Link???

Edit to add:

I've never been a LEO, nor have I ever claimed to be. I have trained with quite a few, but only when we were attending the same courses at various facilities around the country. Perhaps that's where the confusion lies.

[TX-RAT]

13. Sorry, couldn't do search

[iverglas]

14. as I recall

Lab technician/technologist of some sort in the military, ergo with military experience with firearms, is how it went.

But not a gurl after all. :(

[TX-RAT]

15. I thought he was a female state trooper

Boy did i miss.

[JeebusB]

18. Neither did I say that - ever.

Boy, you two sure do make a lot of assumptions.

[iverglas]

19. scusi?

I have made no assumptions.

As I recalled it, the profile you had on display in your early life here stated that you were female. This was why I found your addressing me and KarinCaryn as "gurl" ("silly gurl" and "little gurl", respectively, you might recall too) just plain weird, initially. I may be mistaken in my recollection about seeing that profile. Damn, I'm not infallible. How will I stand up?

You could just say that, if you like. I mean, it would actually make sense to say that ... that profile you used to have available, saying that you were female ... is incorrect. It doesn't make much sense at all to call it an "assumption".

It appears that I am mistaken in my recollection regarding occupation. There was another among us -- now, sadly, sleeping with the fishies -- who had (oddly) said: "I am a military medical laboratory technitian <sic>".

So ditto. You just g'head and say Lab technician/technologist of some sort in the military is incorrect. Again, I'd clearly stated that this was as I recalled it, so don't ask me why you'd call it an "assumption". Who the heck would assume that somebody was a lab tech in the military??

How 'bout literotica? You into that?

[JeebusB]

21. "Military lab technician"

Yours is the first mention I've heard of such on DU.

Forgive me if I presumed your assumptions.

And I don't recall using the term "little gurl." Not denying that I may have, I just don't remember it. "Silly gurl" sounds more my style.
;)

[iverglas]

22. ah well

Now you'll just have to take my word for it; the memory bank has been wiped clean:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=91463#91592

Name removed (0 posts)
Wed Oct-27-04 06:38 PM
Response to Reply #31
33. Deleted message

Message removed by moderator. Click here to review the message board rules.


iverglas (1000+ posts)
Wed Oct-27-04 07:10 PM
Response to Reply #33
36. "Domari Nolo"

"Really, little gurl, I don't waste my time wondering about what goes on (or doesn't) inside your head."

Hell, no! Why waste time wondering what the truth is when you can invent something instead??

Lucky I have that copy and paste habit, though.

As for the other, I wouldn't have thunk it up, and I wouldn't have spelled it "technitian":
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=2239889#2243990

[JeebusB]

23. hahaha OK, I guess I did.

My memory isn't infallible either. <shrug>

I'll be sure and ask for your help whenever I need something retreived from the archives. (lol) Say, maybe you could find that post for TX where I claimed to be a DPS trooper!

[iverglas]

24. for everyone's peace of mind

I suspect this is the buried memory in question:


http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=91265#91407

JeebusB (88 posts)
Tue Oct-26-04 01:09 PM
Response to Reply #36

38. Not really surprising.

I think most people think in terms of a single device instead of several. In that case, they tend to select the single most effective one they can think of.

Pepper spray is tremendously underrated and more people should carry it (along with a supply of Sudecon decontaminate wipes). I carry some at all times as well as my handgun. Unfortunately, I'm prohibited from carrying a baton by the DPS. (Note, I did not say "by the law" because the law says I can. It's the DPS's "interpretation" of the law that prevents me from doing so. But oh well.)

At any rate, far too few people are aware of the "force continuum" approach to threat management and very, very few people are trained in it. I'd like to have more training myself. Handgund training is actually easier to come by than this sort.

Read quickly, the statement could be ambiguous.

[JeebusB]

17. And by the way...

You still didn't answer the question. Do these hearings actually ever take place??? If so, then I've never heard of one. If not, then the protection of the 2nd Amendment right that the 5th Circuit spoke of is really non-existant.

Being "eligible" is one thing. Getting slapped with one as a matter of routine is quite another. Simple divorce proceedings is no reason to suspend anyone's rights. The burden of proof should be on the person requesting the protective order, not on the one whose rights are getting pillaged. Nothing like that should be automatic.


And for the record, I'm not advocating violating the law. I'm suggesting an alternate means of compliance. One doesn't have to surrender property to the state in order not to be in possession of it.

I guess it comes down to who you trust. As for myself, I don't trust the state.

[TX-RAT]

26. Do these hearings actually ever take place??? Not before it's issued.

After a PO has been issued you have a right to contest it, He missed that hearing.

(Getting slapped with one as a matter of routine is quite another.)
Both party's don't always agree on divorce, some men have been known to kill their wives rather than divorce. Thats a risk I'm not going to take.

(And for the record, I'm not advocating violating the law. I'm suggesting an alternate means of compliance. One doesn't have to surrender property to the state in order not to be in possession of it.)
Surrendering to the state, is the only way the state can be sure you don't have those weapons in your possession.