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Posted: 11/13/2023 10:34:39 PM EDT
[Last Edit: bigbore]
If a guy is going through a divorce and the judge issues a restraining order, keeping him from the home he shared with his wife - - would that disqualify him from buying a gun?
i. Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner? IMO yes, a court issued restraining order is a court issued order. |
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Posted: 11/13/2023 11:06:00 PM EDT
[Last Edit: Bigger_Hammer]
[#1]
Yes.
Please let's not have another ADCO is being Sued threads. Bigger_Hammer 
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Posted: 11/13/2023 11:10:15 PM EDT
[Last Edit: GingerShanks]
[#2]
Are we talking about a Personal Protection Order, or a RO re assets and property?
The former, and you are correct. In Michigan that is a separate action with a different case number distinct from the divorce case. |
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Posted: 11/13/2023 11:15:47 PM EDT
[Last Edit: bigbore]
[#3]
Quote HistoryOriginally Posted By GingerShanks: Are we talking about a Personal Protection Order, or a RO re assets and property? 
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Posted: 11/13/2023 11:16:49 PM EDT
[#4]
Quote HistoryOriginally Posted By Bigger_Hammer: Yes. Please let's not have another ADCO is being Sued threads. Bigger_Hammer It's funny you should mention that. I'll follow up with more hilarity soon 
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Posted: 11/13/2023 11:29:47 PM EDT
[Last Edit: Jodan1776]
[#5]
Originally Posted By bigbore:
restraining order reads "It is further ordered adjudged and decreed the defendant is enjoined from entering the residence located at..." I'm not a 2A lawyer, but my read is that the above wording is NOT "restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner?" |
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Posted: 11/13/2023 11:33:33 PM EDT
[Last Edit: bigbore]
[#6]
Quote HistoryOriginally Posted By Jodan1776: I'm not a 2A lawyer, but my read is that the above wording is NOT "restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner?" I agree 100%, but its still a court ordered restraining order. |
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Posted: 11/13/2023 11:41:53 PM EDT
[Last Edit: AJE]
[#7]
Ohio LE here.... "Protection orders" are what really has teeth with enforcement. Restraining orders are not quite the same. If that's the entirety of the order, it doesn't mention weapons, it just says he has to stay away from the residence. Looks like more of a divorce case and not something he's been arrested for.
This is what a protection order looks like  Or  The next page will have check boxes, one or which restricts the respondent from having access to weapons, and may specify they have to turn over any weapons currently in their possession. |
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Posted: 11/13/2023 11:46:10 PM EDT
[#8]
@LawyerUp
He may have a good opinion. I'd say that the purchase is a no-go. |
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Posted: 11/14/2023 8:22:02 AM EDT
[#9]
Quote HistoryOriginally Posted By AJE: Ohio LE here.... "Protection orders" are what really has teeth with enforcement. Restraining orders are not quite the same. If that's the entirety of the order, it doesn't mention weapons, it just says he has to stay away from the residence. Looks like more of a divorce case and not something he's been arrested for. That's one way to look at it. Let me ask you this. If the guy enters that house and his wife calls 911, would he be treated any differently by the responding officers based on the example I posted of court ordered restraining order VS a court ordered protection order? Would he be removed from the house by force by men with guns either way? |
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Posted: 11/14/2023 8:36:36 AM EDT
[#10]
Originally Posted By AJE: Ohio LE here.... "Protection orders" are what really has teeth with enforcement. Restraining orders are not quite the same. If that's the entirety of the order, it doesn't mention weapons, it just says he has to stay away from the residence. Looks like more of a divorce case and not something he's been arrested for. This is what a protection order looks like https://www.pdffiller.com/preview/0/244/244813/large.png Or https://img.yumpu.com/51387375/1/500x640/form-1002-a-domestic-violence-temporary-protection-order-.jpg The next page will have check boxes, one or which restricts the respondent from having access to weapons, and may specify they have to turn over any weapons currently in their possession. That looks to be a civil matter injunctive order to me. That’s no DV related. |
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Posted: 11/14/2023 8:45:49 AM EDT
[#11]
Quote HistoryOriginally Posted By GingerShanks: That looks to be a civil matter injunctive order to me. That’s no DV related. Can't it be both? The order states it's granting his wife exclusive use of marital residence AND a temporary restraining order. |
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Posted: 11/14/2023 9:24:38 AM EDT
[#12]
Not an Ohio lawyer, but it sounds like your everyday temporary order in a divorce that has zero effect on gun rights. For Ohio questions I ask Chris Wiest out of KY, who is also licensed in Ohio.
If you want to PM me I'll get you his number. |
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Posted: 11/14/2023 10:04:36 AM EDT
[#13]
Quote HistoryOriginally Posted By LawyerUp: Not an Ohio lawyer, but it sounds like your everyday temporary order in a divorce that has zero effect on gun rights. For Ohio questions I ask Chris Wiest out of KY, who is also licensed in Ohio. If you want to PM me I'll get you his number. Now you are opening a can of beans bringing the state of Ohio into this. If you live in a state where you can legally smoke pot, and do - you are still prohibited. You smoke pot or you don't. You are subject to a restraining order, or you aren't. Wouldn't the same apply here? |
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Posted: 11/14/2023 10:14:10 AM EDT
[#14]
Quote HistoryOriginally Posted By bigbore: That's one way to look at it. Let me ask you this. If the guy enters that house and his wife calls 911, would he be treated any differently by the responding officers based on the example I posted of court ordered restraining order VS a court ordered protection order? Would he be removed from the house by force by men with guns either way? Quote HistoryOriginally Posted By bigbore: Originally Posted By AJE: Ohio LE here.... "Protection orders" are what really has teeth with enforcement. Restraining orders are not quite the same. If that's the entirety of the order, it doesn't mention weapons, it just says he has to stay away from the residence. Looks like more of a divorce case and not something he's been arrested for. That's one way to look at it. Let me ask you this. If the guy enters that house and his wife calls 911, would he be treated any differently by the responding officers based on the example I posted of court ordered restraining order VS a court ordered protection order? Would he be removed from the house by force by men with guns either way? No. If he does that with a protection order in place, he goes to jail. If he does that with a restraining order, HERE, she would be told to call her attorney. That could be different in other jurisdictions. |
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Posted: 11/14/2023 10:46:42 AM EDT
[#15]
ATF Opinion
We are not attorneys to interpret what intentions the judge provided for the court order. As a best practice I would error on the side of caution and exercise your right not to transfer a firearm to this individual, in case a restriction on firearms is included in the injunction. |
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Posted: 11/14/2023 11:00:45 AM EDT
[Last Edit: LawyerUp]
[#16]
Quote HistoryOriginally Posted By bigbore: Now you are opening a can of beans bringing the state of Ohio into this. If you live in a state where you can legally smoke pot, and do - you are still prohibited. You smoke pot or you don't. You are subject to a restraining order, or you aren't. Wouldn't the same apply here? Quote HistoryOriginally Posted By bigbore: Originally Posted By LawyerUp: Not an Ohio lawyer, but it sounds like your everyday temporary order in a divorce that has zero effect on gun rights. For Ohio questions I ask Chris Wiest out of KY, who is also licensed in Ohio. If you want to PM me I'll get you his number. Now you are opening a can of beans bringing the state of Ohio into this. If you live in a state where you can legally smoke pot, and do - you are still prohibited. You smoke pot or you don't. You are subject to a restraining order, or you aren't. Wouldn't the same apply here? What federal law/regulation is referring to is state law domestic violence protective orders. Language ordering some general restraint or prohibition isn't the same thing. I don't think there's any chance the guy is a prohibited person just by virtue of the language shown. DVPOs will be creatures of state law. I think the federal language is generalizing to include these, which could vary between states. Including language to the effect of "neither party will harass the other, etc., etc.," can be common in general family court orders. If people are taking these orders and showing them to dealers or LE, they are probably just causing unnecessary drama. eta: just speaking from the issue of whether he is a prohibited person and not from the POV of FFL compliance, as I don't practice in that area at all. |
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Posted: 11/14/2023 11:00:51 AM EDT
[#17]
It's hard to argue with that.
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Posted: 11/14/2023 11:23:58 AM EDT
[#18]
Quote HistoryOriginally Posted By AJE: It's hard to argue with that. Agree, it just sucks that something like this isn't black or white. If the guy answered no on the 4473 to question 21(i) but actually was under a court ordered restraining order, that could be another civil suit to have to pay lawyers to argue out what we are going back and forth about here. |
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Posted: 11/14/2023 12:33:44 PM EDT
[Last Edit: RenegadeX]
[#19]
Quote HistorySeems it is just a temporary division of assets, while divorce is in progress (stating who lives where) and does not to meet criteria: i. Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner? Obviously there might be a lot more not shown, but that is what I see. ETA: Note the order does not prevent him from seeing his wife. He could spend every day with her and have make-up sex as long as it is not in that house. They could even go to the gun range together. |
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Posted: 11/14/2023 12:38:19 PM EDT
[#20]
Quote HistoryOriginally Posted By AJE: Ohio LE here.... "Protection orders" are what really has teeth with enforcement. Restraining orders are not quite the same. What it is called does not matter for the purposes of a 4473: i. Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner? If it is Court Ordered and restrains you from one of the 3 critiera to one of the 3 subjects - no gun for you. |
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Posted: 11/14/2023 1:13:20 PM EDT
[#21]
I finally spoke to someone who works for the county
According to them the question on the 4473 is asking if you are subject to a court ordered RO. A DR RO is a court order so the buyer needs to answer yes to 21(i) on the 4473 and I should not complete the sale. If the buyer doesn't tell me, and answers no, they are lying on the form. So what if the gun bought by the person in the above mentioned RO was used to kill someone? |
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USA
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Posted: 11/14/2023 1:19:30 PM EDT
[#22]
Originally Posted By bigbore: If a guy is going through a divorce and the judge issues a restraining order, keeping him from the home he shared with his wife - - would that disqualify him from buying a gun? i. Are you subject to a court order, including a Military Protection Order issued by a military judge or magistrate, restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner? IMO yes, a court issued restraining order is a court issued order. Went through this exact scenario. During the RO I was not allowed to posses any firearms and my Conceal Carry Permit was revoke. Once my RO was dismissed in it's entirety my 2A rights were restored. Had to prove that the RO was dismissed in order to even qualify for my CCP again. I have bought many more after without issue. If you have an active RO against you best to just stay away from firearms until you settle your shit. |
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Posted: 11/14/2023 1:52:53 PM EDT
[#23]
Any TPO I've ever served specifically mentioned any firearms prohibition.
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Posted: 11/14/2023 2:18:17 PM EDT
[Last Edit: RenegadeX]
[#24]
Quote HistoryOriginally Posted By bigbore: I finally spoke to someone who works for the county According to them the question on the 4473 is asking if you are subject to a court ordered RO. Are they a lawyer, ATF Agent or FFL? Otherwise what makes them SME on what the question asks? Seriously this is not that hard. It is quite clear what the question asks. It has three parts- 1) Must be "subject to a court order" - in your case YES. 2) must be to restrain from "harassing, stalking, or threatening" - in your case NO. 3) Must be specific individuals "child or an intimate partner or child of such partner" - in your case YES. Meet all 3, no gun for you. 1 of 3, or 2 of 3, no problem. Now if this is "asking for a friend", sure he can go buy somewhere. But in your case, this is customer told you he had this CO and apparently showed it to you? Yeah run away (like ATF said) because there is almost certainly more than he is telling you. |
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Posted: 11/14/2023 2:49:49 PM EDT
[Last Edit: bigbore]
[#25]
Quote HistoryOriginally Posted By RenegadeX: Are they a lawyer, ATF Agent or FFL? Otherwise what makes them SME on what the question asks? Seriously this is not that hard. It is quite clear what the question asks. It has three parts- 1) Must be "subject to a court order" - in your case YES. 2) must be to restrain from "harassing, stalking, or threatening" - in your case NO. 3) Must be specific individuals "child or an intimate partner or child of such partner" - in your case YES. Meet all 3, no gun for you. 1 of 3, or 2 of 3, no problem. Now if this is "asking for a friend", sure he can go buy somewhere. But in your case, this is customer told you he had this CO and apparently showed it to you? Yeah run away (like ATF said) because there is almost certainly more than he is telling you. The SME I spoke to was an elected official who is an SME in this area. They all have legal opinions, and next guys may be different. The content/affidavit for the motion that got the order could have included threats of violence which caused the judge to grant the RO which is why an RO is an RO. As was posted earlier, wait until the RO is released ti fill out a 4473. Anyhow, I have the advice wanted. |
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Posted: 11/14/2023 3:02:38 PM EDT
[#26]
Situations like this are why the Rahimi case at the USSC is so important. This looks like a boilerplate order where the parties agree that one is staying in the marital residence and the other is leaving. Zero indication of violence, DV, harassment, stalking, etc... yet fundamental rights are revoked.
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Posted: 11/15/2023 9:27:45 AM EDT
[#27]
Quote HistoryOriginally Posted By Bubbles: Situations like this are why the Rahimi case at the USSC is so important. This looks like a boilerplate order where the parties agree that one is staying in the marital residence and the other is leaving. Zero indication of violence, DV, harassment, stalking, etc... yet fundamental rights are revoked. That doesn't seem to be the case here. I've spoke with a few more legal experts on this situation and they all agree, this person could not honestly answer "no" to that question on the 4473. This RO is over 4yrs old, back when the question on the 4473 was more vague "are you subject to a court order restraining you...." The guy moved out of that house 6 months prior. The injunction includes harassing, stalking, bothering, etc.. The motion requesting the RO speaks of violence that occurred between them. The subject of this RO did buy a gun, lied on the 4473, was given a proceed. The subject of this RO is involved in another case I'm following closely. I wanted to make sure of everything before I post in my other thread. |
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Posted: 11/15/2023 12:44:28 PM EDT
[#28]
Quote HistoryOriginally Posted By bigbore: This RO is over 4yrs old, back when the question on the 4473 was more vague "are you subject to a court order restraining you...." The guy moved out of that house 6 months prior. The injunction includes harassing, stalking, bothering, etc.. The motion requesting the RO speaks of violence that occurred between them. ROFL. Had you mentioned that in the OP, this thread would have had an entirely different set of answers. |
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Posted: 11/15/2023 1:01:43 PM EDT
[Last Edit: bigbore]
[#29]
Quote HistoryOriginally Posted By RenegadeX: ROFL. Had you mentioned that in the OP, this thread would have had an entirely different set of answers. I didn't have that information(injunction/motion) then. |
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Posted: 11/15/2023 5:57:10 PM EDT
[#30]
Ost
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TN, USA
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Posted: 11/18/2023 11:40:21 AM EDT
[#31]
Let’s look at how the statute 18 US Code 922 defines a person subject to restraining orders:
(8) who is subject to a court order that-- (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, 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; |
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