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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.
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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.
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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 where your gun rights are in jeopardy!
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