Restraining order vs. CCW - Page 2

Restraining order vs. CCW

This is a discussion on Restraining order vs. CCW within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by a_kayaker We all keep yelling "get a lawyer", but let's be honest. Lawyers are expensive and if he is getting divorced then ...

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Thread: Restraining order vs. CCW

  1. #16
    Senior Member Array Musketeer's Avatar
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    Quote Originally Posted by a_kayaker View Post
    We all keep yelling "get a lawyer", but let's be honest. Lawyers are expensive and if he is getting divorced then he probably has his funds tied up with one.
    If he already has one call him. If he doesn't then given her willingness to lie already it will be even more expensive if he DOESN'T get one.

    Look at it this way, you are already paying for half her lawyer, might as well pay for half of yours (since the remaining money will probably be split up).


  2. #17
    Distinguished Member Array BIG E's Avatar
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    Quote Originally Posted by Musketeer View Post
    If he already has one call him. If he doesn't then given her willingness to lie already it will be even more expensive if he DOESN'T get one.

    Look at it this way, you are already paying for half her lawyer, might as well pay for half of yours (since the remaining money will probably be split up).

    Very good point.
    Don't hit at all if it is honorably possible to avoid hitting; but never hit soft!

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  3. #18
    Member Array soundwave's Avatar
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    There is an option on restraining orders that allows the filer to state that they believe that the firearms should be taken away. If she has not checked this option, then the firearms should be fine. If she has there should be an option on the copy you receive that states you can contest the order. As someone already said, it's only a temporary order until it can be set in stone which requires both parties to argue in front of a judge.

    You can do this yourself (e.g. no lawyer needed) and you should state that having the firearm is a vital part of your job, etc., etc., etc. Also be sure to mention your concealed weapon permit and that you completed state-approved weapons courses, successfully completed a background check, that your permit is still valid because there were no convictions of domestic violence. Be sure to point out that this is the first instance that she has reported abuse and the possibility that she was lying on the restraining order out of spite. The judge might see things clearly after that.

    Judges see this more often than you think and know what's involved. Law enforcement officers sometimes have vindictive wives that do the same thing during a divorce and it usually backfires on them because the LEO is often found to be more of a fit parent simply because of their job and the obligation to uphold the law. Good luck.
    "The most foolish mistake we could possibly make would be to allow the subjected people to carry arms; history shows that all conquerors who have allowed their subjected people to carry arms have prepared their own fall." Adolf Hitler

  4. #19
    Member Array top_gizmo's Avatar
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    I had a restraining order AGAINST someone and was told by the judge that I had to turn in my CCW, I didnt have one at the time. And they prohibited my from even purchasing a gun until it expired.
    Semper Fi!

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  5. #20
    Distinguished Member Array Chooie's Avatar
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    Quote Originally Posted by top_gizmo View Post
    I had a restraining order AGAINST someone and was told by the judge that I had to turn in my CCW, I didnt have one at the time. And they prohibited my from even purchasing a gun until it expired.
    That seems kind of back-***wards to me.

  6. #21
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    Like RR says..Lawyer up...asap

  7. #22
    VIP Member Array Janq's Avatar
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    Lawyer up!

    As well next time you have any discussions with her make sure to record the conversations be they in person or over the phone. She's proven herself per her own statements to be a snake in the grass so you've got to protect yourself.

    In MA and VA if you have a protection order against you then boom, your CCW license is automatically revoked _and_ if you try to reapply in those states and many others then having had such an order against you (you are required to truthfully state yea or nay to having had one filed against you) is an eliminating factor and you'll have to explain the details of why it was filed by the 'victim'.

    Good luck. :(

    - Janq
    "Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy

    "A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing

  8. #23
    Senior Member Array cockedlocked01's Avatar
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    I think QKShooter made some great points & suggestions. It all depends on how far this really went already.
    "Use human means as though divine ones didn't exist, and divine means as though there were no human ones." Baltasar Gracian
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  9. #24
    Member Array 1911shooter's Avatar
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    Lawyer up and nail her. i'm going through it now jus no restraining order, it sucks it will show on a backround check and you could lose your ccw.
    When the dust settles only the prepared will survive.

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    remember the only thing common about common sense is that its not that common

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  10. #25
    VIP Member Array packinnova's Avatar
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    Sorry about your troubles friend, but like everyone else said...Lawyer up. As much as I hate to say it...It's much better to be in debt to a lawyer for a LONG time, then to have your remaining family have to be in debt for your funeral if you should loose your CCW.

    Good luck.
    "My God David, We're a Civilized society."

    "Sure, As long as the machines are workin' and you can call 911. But you take those things away, you throw people in the dark, and you scare the crap out of them; no more rules...You'll see how primitive they can get."
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  11. #26
    Member Array soundwave's Avatar
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    Quote Originally Posted by top_gizmo View Post
    I had a restraining order AGAINST someone and was told by the judge that I had to turn in my CCW, I didnt have one at the time. And they prohibited my from even purchasing a gun until it expired.
    This is something a lot of people don't know... A restraining order is a court order that is against both parties, despite the fact that you were the one that filed it. While it's generally accepted that you are the person it is being used to protect, the court is ordering both of you to stay away from each other, so essentially it's two orders in one -- one for both parties. If the option is used to remove the firearms, it applies to both parties. If you and the defendant are found with each other, even if it was consensual, you can both be arrested for violating a court order.

    Cheers.
    "The most foolish mistake we could possibly make would be to allow the subjected people to carry arms; history shows that all conquerors who have allowed their subjected people to carry arms have prepared their own fall." Adolf Hitler

  12. #27
    Distinguished Member Array SonofASniper's Avatar
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    Lawyer up... period.

    No other advice from me, nor should you take it from anyone else. Opinions are like navals, everyone has them and they are all fuzzy. Lawyer up immediately before you do anything more including your posting here. Consult with your lawyer about it all.
    I will support gun control when you can guarantee all guns are removed from this planet. That includes military and law enforcement. When you can accomplish that, then I will be the last person to lay down my gun. Then I will carry the weapon that replaces the gun.

  13. #28
    Distinguished Member Array fed_wif_a_sig's Avatar
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    I'll make this clear, after 20 years in law enforcement, the advice about getting a laywer is one you had better listen to.

    The first is a TRO or Temporary Restraining Order, this is good for a period of time till a hearing can be held. You MUST be served with the TRO to put it into effect and what ever you do, no NOT miss the hearing date, or a Restraining Order will be issued in abstencia.

    A Restraining Order or Protective Order are the two most powerful pieces of paper in exsistance. The difference is that if you violate a Restraining Order all LEOs can do is file it with the judge and its a criminal charge once the judge says so. If its a Protective Order, an LEO can arrest immediatly if they feel it has been violated.

    Either one will rip away your right to own, possess, carry or work in a field that requires firearms. It is a federal law, called the Lautenberg Amendment, (Title 18 U.S.C. Section 922(g)(9)).

    No matter what you think about her, or how angry you are, do NOT make any contact with her.....doing so will hurt you more than anything.

    Get yourself an attorney and get one that knows what they are doing. My personal opinion, is if the attorney answers their own phone, hang up. If they can't afford to hire a secretary then business isnt as good.

    Good luck. I've seen alot of cops who got stupid, didnt take this stuff seriously, and later, were not only served with a RO or PO and it cost them their guns as well as their jobs.
    Steve
    "Respect all ... Fear none!!!

  14. #29
    Senior Member Array cagueits's Avatar
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    I had to go through something similar, so here is my advice:

    Contact an attorney. Meanwhile, read up on this:

    http://www.womenslaw.org/MT/MT_how_to.htm

    It is more oriented towards women, however it somewhat describes the general process of getting an order in Montana, from start to finish.

    If you have any kind of joint accounts in a bank/credit union/etc, withdraw all money from it, deposit it on an account under your name only (open one if you don't have one). Joint credit cards/lines of credit, close/cancel them - now. Do not use the money, you may be ordered by the court to split it or surrender it in whole.

    Be ready for her to show up with a deputy to pick up clothing and stuff she needs. Secure in advance (preferably on a storage unit out of the premisses of your house) any valuables you don't want taken - if she shows up with a deputy you won't be allowed to question what she takes/goes through.

    Be ready to be ordered to leave your house and for her to stay on it (read as get anything valuable out of the house into a storage unit until after you get a divorce/file an eviction order/resolve child custody). Most states permit alleged battered spouses to stay in the house while the case is seen by the courts.

    Do not destroy anything! - it will be see by the court as an act of aggression on your behalf.

    Get a PO BOx and file a change of address with the USPS, so they start forwarding your mail to your new PO Box - if you don't want her going through your mail. Notify everyone of your change of mailing address, as mail does tend to get around to your old mailing address every once in a while.

    Cease any and all communication with your wife. Do not go to where she is staying/works/exercises/etc. Do not ask to see your son, more than likely the child will be used as a tool to get revenge/hurt you. Also, do not go to your child's school/soccer games/etc, until after you have resolved this matter - you don't need any drama on her part where all that witnesses remember is that she was screaming maddly and you were there (better you are not there so no witnesses place you anywhere near her).

    Here's some legal info for Montana:

    40-15-201. Temporary order of protection.

    (1) A petitioner may seek a temporary order of protection from a court listed in 40-15-301. The petitioner shall file a sworn petition that states that the petitioner is in reasonable apprehension of bodily injury or is a victim of one of the offenses listed in 40-15-102, has a relationship to the respondent if required by 40-15-102, and is in danger of harm if the court does not issue a temporary order of protection immediately.

    (2) Upon a review of the petition and a finding that the petitioner is in danger of harm if the court does not act immediately, the court shall issue a temporary order of protection that grants the petitioner appropriate relief. The temporary order of protection may include any or all of the following orders:
    (a) prohibiting the respondent from threatening to commit or committing acts of violence against the petitioner and any designated family member;

    (b) prohibiting the respondent from harassing, annoying, disturbing the peace of, telephoning, contacting, or otherwise communicating, directly or indirectly, with the petitioner, any named family member, any other victim of this offense, or a witness to the offense;

    (c) prohibiting the respondent from removing a child from the jurisdiction of the court;

    (d) directing the respondent to stay 1,500 feet or other appropriate distance away from the petitioner, the petitioner's residence, the school or place of employment of the petitioner, or any specified place frequented by the petitioner and by any other designated family or household member;

    (e) removing and excluding the respondent from the residence of the petitioner, regardless of ownership of the residence;

    (f) prohibiting the respondent from possessing or using the firearm used in the assault;

    (g) prohibiting the respondent from transferring, encumbering, concealing, or otherwise disposing of any property except in the usual course of business or for the necessities of life and, if so restrained, requiring the respondent to notify the petitioner, through the court, of any proposed extraordinary expenditures made after the order is issued;

    (h) directing the transfer of possession and use of the residence, an automobile, and other essential personal property, regardless of ownership of the residence, automobile, or essential personal property, and directing an appropriate law enforcement officer to accompany the petitioner to the residence to ensure that the petitioner safely obtains possession of the residence, automobile, or other essential personal property or to supervise the petitioner's or respondent's removal of essential personal property;

    (i) directing the respondent to complete violence counseling, which may include alcohol or chemical dependency counseling or treatment, if appropriate;

    (j) directing other relief considered necessary to provide for the safety and welfare of the petitioner or other designated family member.

    (3) If the petitioner has fled the parties' residence, notice of the petitioner's new residence must be withheld, except by order of the court for good cause shown.

    (4) The court may, without requiring prior notice to the respondent, issue an immediate temporary order of protection for up to 20 days if the court finds, on the basis of the petitioner's sworn petition or other evidence, that harm may result to the petitioner if an order is not issued before the 20-day period for responding has elapsed.

    40-15-202. Order of protection -- hearing -- evidence.

    (1) A hearing must be conducted within 20 days from the date that the court issues a temporary order of protection. The hearing date may be continued at the request of either party for good cause or by the court. If the hearing date is continued, the temporary order of protection must remain in effect until the court conducts a hearing. At the hearing, the court shall determine whether good cause exists for the temporary order of protection to be continued, amended, or made permanent.

    (2) The respondent may request an emergency hearing before the end of the 20-day period by filing an affidavit that demonstrates that the respondent has an urgent need for the emergency hearing. An emergency hearing must be set within 3 working days of the filing of the affidavit.

    (3) The order of protection may not be made mutually effective by the court. The respondent may obtain an order of protection from the petitioner only by filing an application for an order of protection and following the procedure described in this chapter.

    (4) (a) Except as provided in subsection (4)(b), evidence concerning a victim's sexual conduct is not admissible in a hearing under this section.

    (b) Evidence of a victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease may be admitted in a hearing under this section only if that sexual conduct is at issue in the hearing.
    (5) If a respondent proposes to offer evidence subject to subsection (4)(b), the trial judge shall order a separate hearing to determine whether the proposed evidence is admissible under subsection (4)(b).

    45-8-321. Permit to carry concealed weapon.

    (1) A county sheriff shall, within 60 days after the filing of an application, issue a permit to carry a concealed weapon to the applicant. The permit is valid for 4 years from the date of issuance. An applicant must be a United States citizen who is 18 years of age or older and who holds a valid Montana driver's license or other form of identification issued by the state that has a picture of the person identified. An applicant must have been a resident of the state for at least 6 months. Except as provided in subsection (2), this privilege may not be denied an applicant unless the applicant:

    (a) is ineligible under Montana or federal law to own, possess, or receive a firearm;

    (b) has been charged and is awaiting judgment in any state of a state or federal crime that is punishable by incarceration for 1 year or more;

    (c) has been convicted in any state or federal court of a crime punishable by more than 1 year of incarceration or, regardless of the sentence that may be imposed, a crime that includes as an element of the crime an act, attempted act, or threat of intentional homicide, violence, bodily or serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent;

    (d) has been convicted under 45-8-327 or 45-8-328, unless the applicant has been pardoned or 5 years have elapsed since the date of the conviction;

    (e) has a warrant of any state or the federal government out for the applicant's arrest;

    (f) has been adjudicated in a criminal or civil proceeding in any state or federal court to be an unlawful user of an intoxicating substance and is under a court order of imprisonment or other incarceration, probation, suspended or deferred imposition of sentence, treatment or education, or other conditions of release or is otherwise under state supervision;

    (g) has been adjudicated in a criminal or civil proceeding in any state or federal court to be mentally ill, mentally defective, or mentally disabled and is still subject to a disposition order of that court; or

    (h) was dishonorably discharged from the United States armed forces.

    (2) The sheriff may deny an applicant a permit to carry a concealed weapon if the sheriff has reasonable cause to believe that the applicant is mentally ill, mentally defective, or mentally disabled or otherwise may be a threat to the peace and good order of the community to the extent that the applicant should not be allowed to carry a concealed weapon. At the time an application is denied, the sheriff shall, unless the applicant is the subject of an active criminal investigation, give the applicant a written statement of the reasonable cause upon which the denial is based.

    (3) An applicant for a permit under this section must, as a condition to issuance of the permit, be required by the sheriff to demonstrate familiarity with a firearm by:

    (a) completion of a hunter education or safety course approved or conducted by the department of fish, wildlife, and parks or a similar agency of another state;

    (b) completion of a firearms safety or training course approved or conducted by the department of fish, wildlife, and parks, a similar agency of another state, a national firearms association, a law enforcement agency, an institution of higher education, or an organization that uses instructors certified by a national firearms association;

    (c) completion of a law enforcement firearms safety or training course offered to or required of public or private law enforcement personnel and conducted or approved by a law enforcement agency;

    (d) possession of a license from another state to carry a firearm, concealed or otherwise, that is granted by that state upon completion of a course described in subsections (3)(a) through (3)(c); or

    (e) evidence that the applicant, during military service, was found to be qualified to operate firearms, including handguns.

    (4) A photocopy of a certificate of completion of a course described in subsection (3), an affidavit from the entity or instructor that conducted the course attesting to completion of the course, or a copy of any other document that attests to completion of the course and can be verified through contact with the entity or instructor that conducted the course creates a presumption that the applicant has completed a course described in subsection (3).

    (5) If the sheriff and applicant agree, the requirement in subsection (3) of demonstrating familiarity with a firearm may be satisfied by the applicant's passing, to the satisfaction of the sheriff or of any person or entity to which the sheriff delegates authority to give the test, a physical test in which the applicant demonstrates the applicant's familiarity with a firearm.

    45-8-323. Denial of renewal -- revocation of permit.

    A permit to carry a concealed weapon may be revoked or its renewal denied by the sheriff of the county in which the permittee resides if circumstances arise that would require the sheriff to refuse to grant the permittee an original license.


    Make sure you read up all the info on this par of the Montana Code:

    http://data.opi.mt.gov/bills/mca_toc/40_15.htm

    http://data.opi.mt.gov/bills/mca_toc/45_8_3.htm

    Here's some other useful info:

    http://www.montanacourts.org/library...s/domestic.asp

    http://www.montanacourts.org/library...s/childcus.asp

    http://www.montanacourts.org/library...d_marriage.asp

    http://www.montanacourts.org/library/law_by_top.asp

    Hope it helps.
    Last edited by cagueits; April 29th, 2007 at 09:48 AM.

  15. #30
    Member Array gotammo's Avatar
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    as the others have get a lawyer, if the authorities know you have guns they may confinscate them and pull your permit.

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