Bad news from New Jersey in domestic violence case

Bad news from New Jersey in domestic violence case

This is a discussion on Bad news from New Jersey in domestic violence case within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; I don't have the actual cite to yesterday's ruling. The following was taken from a NJ Law Journal daily news alert. The underlining is mine. ...

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  1. #1
    Member Array gmark340's Avatar
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    Bad news from New Jersey in domestic violence case

    I don't have the actual cite to yesterday's ruling. The following was taken from a NJ Law Journal daily news alert. The underlining is mine. This decision continues the trend in NJ to pay lip service to, but then disregard, due process, all consistent with Lautenberg.

    PREVENTION OF DOMESTIC VIOLENCE LAW HELD CONSTITUTIONAL
    New Jersey's Prevention of Domestic Violence Act, which allows courts to issue restraints without a jury and based on a minimal burden of proof, is constitutional, the state Supreme Court says. Thursday's unanimous, per curiam ruling in Crespo v. Crespo, A-28-09, affirms the Appellate Division's overturning of a trial court opinion that struck down the 19-year old law. The Court agreed there is no constitutional right to a jury in a domestic violence hearing; the preponderance-of-evidence standard does not flout due process; and the specification of court procedures does not violate separation of powers. The Court also agreed with the rejection of a Second Amendment argument: that the act's provision for seizure of guns is inconsistent with the individual right to bear arms recognized by the U.S. Supreme Court in 2008. There is no reason to think the ruling prohibits taking guns way from people who commit domestic violence, the state Court said.

    "There is no reason to think the ruling prohibits taking guns way from people who commit domestic violence..." but this begs the question as to whether the defendant did, in fact, commit domestic violence in the first place or whether this is a "he said, she said" situation. I don't know the case so I don't know how egregious the defendant's behavior was or what level of proof was offered. Bottom line: while this isn't new news, it is a reminder that domestic situations can be and are treated in a different manner to other disputes, with potentially disastrous consequences for a gun owner.


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    VIP Member Array packinnova's Avatar
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    Quote Originally Posted by gmark340 View Post
    I don't have the actual cite to yesterday's ruling. The following was taken from a NJ Law Journal daily news alert. The underlining is mine. This decision continues the trend in NJ to pay lip service to, but then disregard, due process, all consistent with Lautenberg.

    PREVENTION OF DOMESTIC VIOLENCE LAW HELD CONSTITUTIONAL
    New Jersey's Prevention of Domestic Violence Act, which allows courts to issue restraints without a jury and based on a minimal burden of proof, is constitutional, the state Supreme Court says. Thursday's unanimous, per curiam ruling in Crespo v. Crespo, A-28-09, affirms the Appellate Division's overturning of a trial court opinion that struck down the 19-year old law. The Court agreed there is no constitutional right to a jury in a domestic violence hearing; the preponderance-of-evidence standard does not flout due process; and the specification of court procedures does not violate separation of powers. The Court also agreed with the rejection of a Second Amendment argument: that the act's provision for seizure of guns is inconsistent with the individual right to bear arms recognized by the U.S. Supreme Court in 2008. There is no reason to think the ruling prohibits taking guns way from people who commit domestic violence, the state Court said.

    "There is no reason to think the ruling prohibits taking guns way from people who commit domestic violence..." but this begs the question as to whether the defendant did, in fact, commit domestic violence in the first place or whether this is a "he said, she said" situation. I don't know the case so I don't know how egregious the defendant's behavior was or what level of proof was offered. Bottom line: while this isn't new news, it is a reminder that domestic situations can be and are treated in a different manner to other disputes, with potentially disastrous consequences for a gun owner.
    Yeah this is one of the things about our court systems that irritates the bejeebers out of me. It really is a "he said, she said" issue. It comes down to:
    Female "victim: "he hit me"...
    Judge: "Ok restraining order"
    You are now screwed. With no burden of proof, no trial and conviction by a jury of your peers. Just a judge saying you're guilty sans any trial or proof.
    "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."
    -The Mist (2007)

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    Senior Member Array Rob P.'s Avatar
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    Quote Originally Posted by packinnova View Post
    Yeah this is one of the things about our court systems that irritates the bejeebers out of me. It really is a "he said, she said" issue. It comes down to:
    Female "victim: "he hit me"...
    Judge: "Ok restraining order"
    You are now screwed. With no burden of proof, no trial and conviction by a jury of your peers. Just a judge saying you're guilty sans any trial or proof.
    Actually the judge issues a TEMPORARY restraining order. Then a hearing is conducted to see if the TRO becomes a permanent order. The only bad part of all of that is the requirement (by state law) that you cannot possess firearms while the TRO is in force. Once the TRO is lifted, all your rights are restored.

    There is no conflict with your Constitutional rights by this methodology. For ex: When you are arrested it's only the officer's word that you committed a crime. However, you are held until you either post bail or prove that you aren't guilty. Just because you are in jail without proof beforehand doesn't infringe in your right to personal liberty.

    Same deal here. The minimal intrusion against your rights to keep and bear arms is justified by the requirements that the gov protect ALL of society through a judicial process.

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    Senior Member Array press1280's Avatar
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    I'm wondering if McDonald incorporates under the P or I clause if these domestic cases may require a jury trial under the 7th Amendment?
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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    VIP Member Array packinnova's Avatar
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    Quote Originally Posted by Rob P. View Post
    Actually the judge issues a TEMPORARY restraining order. Then a hearing is conducted to see if the TRO becomes a permanent order. The only bad part of all of that is the requirement (by state law) that you cannot possess firearms while the TRO is in force. Once the TRO is lifted, all your rights are restored.

    There is no conflict with your Constitutional rights by this methodology. For ex: When you are arrested it's only the officer's word that you committed a crime. However, you are held until you either post bail or prove that you aren't guilty. Just because you are in jail without proof beforehand doesn't infringe in your right to personal liberty.

    Same deal here. The minimal intrusion against your rights to keep and bear arms is justified by the requirements that the gov protect ALL of society through a judicial process.
    Actually it does. The only defining difference is that we've deemed it a necessary condition for living within "society".
    "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."
    -The Mist (2007)

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    VIP Member Array paramedic70002's Avatar
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    PREVENTION OF DOMESTIC VIOLENCE LAW

    Department of Pre-Crime at your service.
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

    Guns Save Lives. Paramedics Save Lives. But...
    Paramedics With Guns Scare People!

  7. #7
    Senior Member Array Rob P.'s Avatar
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    Quote Originally Posted by packinnova View Post
    Actually it does. The only defining difference is that we've deemed it a necessary condition for living within "society".
    Huh???

    You make absolutely no sense.

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    Member Array wpage's Avatar
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    In the Peoples Republic of NJ. Even a hint of any of this will have your guns removed. Good luck getting them back.

  9. #9
    Senior Member Array press1280's Avatar
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    http://www.ca7.uscourts.gov/tmp/VG142P6Y.pdf

    US v. Skoien-this case is headed for en banc at the 7th circuit. It deals with firearm possession for a guy convicted of a misdemeanor domestic violence. This could help maybe ending these laws that allow for firearms seizure just for an accusation or a BS DV charge (like coughing in someone's direction).
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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