Restraining Order LTC Question

[Rob Boudrie]

Again, MA can't compel you to do something with property that you own lawfully in another state.

MA can compel you to pay a civil judgement or child support using funds held in an out of state bank.

So, now that I have proven your statement false, the only question is what MA can compel with regards to out of state property.

 

[dcmdon]

You are too freaking clever Rob.

And yes, your question is well said.

Len - so you agree that if you were to move firearms out of state, the moment you got back after a DUI arrest, for example, BEFORE your local issuing authority had a chance to revoke your LTC, then MA LEOs would have no claim to them? I say no.

Another example. Lets say that I have a residence in another state. One that does not require any licenses to possess firearms. Would their claim on my firearms that I moved there after the disqualifying event, but before the revocation of the LTC be any more or less valid than on the firearms that I kept at that residence??

I'm trying to establish common ground before we delve into the stuff we disagree on.

 

[drgrant]

Seems like once the restraining order is gone, the suspension is gone.

Depends on the prick/douche factor of your issuing authority. Some of the really bad ones try to deny after any RO activity. Some try to deny even based on an ancient, but vacated, RO.

-Mike

 

[drgrant]

Again, MA can't compel you to do something with property that you own lawfully in another state.

It's cute that you think that, but Lautenberg (any DV RO) crosses state lines per federal law. This isn't a "stay off my lawn" type of RO. That will not extend. We had a member here who had an ex in MA that had a custody dispute with his ex, so she pulled a 209A on him, they issued it, and more or less got served by proxy at his residence in NH (her town cops ratted him out to the PD up there) and got his shit taken away from him because he didn't see it coming. Now granted, if he had gotten the guns out of his NH house, into someone else's possession (or at least in a way that he could articulate he didn't have control of the guns) different story...

-Mike

 

[drgrant]

Len - so you agree that if you were to move firearms out of state, the moment you got back after a DUI arrest, for example, BEFORE your local issuing authority had a chance to revoke your LTC, then MA LEOs would have no claim to them? I say no.

In MA since first offense DUI is functionally a felony = still federally prohibited person while under indictment = still potentially vulnerable to confiscation. Now if we were talking "police chief killed LTC because of administrative reasons/pure suitability" ... that's a different story, and that chief is going to be shit out of luck in terms of getting the remote to confiscate because he has no legal authority to get a remote to pull a search warrant on you. Of course in the case of a DUI if the remote PD is obstinate they might still be hesitant to do it, a lot more hesitant than a Lautenberg deal, which is pretty much an automatic 50 state job.

ETA: Of course, bear in mind... the locals have to know where you stored your shit, etc. If they're clueless, or they already got the guns they know you have... not much they can do about it. Obviously if someone can (somehow) prove you still have access, that = potential problems with FIP/PP.

-Mike

 

[drgrant]

You don't have to hand them stuff not in MA, but the MA PD may contact the PD in the other state and request it be confiscated. Other than 209A ROs (actually Fed Law) no other reason demands confiscation in most other states and thus the non-MA PD may tell the MA PD "thanks for letting us know, but we aren't going to confiscate anything". You will have done what the law (or current interpretation) demands and that's all.

What if the person is under indictment for a felony? (or functionally in MA, a misdafelony).

I agree that a remote will likely balk at anything that doesn't involve a DV RO or a violent felony, though. (eg, assault, rape, or heavy duty drugs etc) Particularly if their laws are much more lenient than MA's laws on the particular issue.

-Mike

 

[Len-2A Training]

Mike you answered Don's and your own question.

 

[dcmdon]

It's cute that you think that, but Lautenberg (any DV RO) crosses state lines per federal law. This isn't a "stay off my lawn" type of RO. That will not extend. We had a member here who had an ex in MA that had a custody dispute with his ex, so she pulled a 209A on him, they issued it, and more or less got served by proxy at his residence in NH (her town cops ratted him out to the PD up there) and got his shit taken away from him because he didn't see it coming. Now granted, if he had gotten the guns out of his NH house, into someone else's possession (or at least in a way that he could articulate he didn't have control of the guns) different story...

-Mike

He is a Federally prohibited person in that case. I would expect another state's police to act that way.

Now, lets split some hairs. As a new MA resident, its my understanding that first you "pull" the 209A, then there is a hearing.

I assume MA police will attempt a gun grab at the first filing.

Was this members stuff taken out of his residence in NH before or after the hearing?? Once there is a hearing, we have due process, and taking the stuff becomes, if not reasonable, at least lawful considering he's a PP at that point.

Re getting a LTC back, if you file mutual protective orders, again, its my understanding that the judge must find a "primary aggressor". Is this right? Does the COP see that order and take into account whether or not you are the primary aggressor?

Do MA courts always list the male as the primary aggressor?

 

[dcmdon]

I'm still looking for agreement that if you move the guns out of state after an alleged disqualifying offense, but before the revocation, you are clean with respect to 129D.

 

[Len-2A Training]

MGL REQUIRES confiscation upon issuance of the ex-parte temporary RO. Most other states have laws that give both parties their day in court BEFORE confiscation is mandated (by Fed Law).

Will another state confiscate when a MA PD contacts them about a temporary RO? My bet is that the MA PD would NOT tell them it is merely an ex-parte temporary RO so that the non-MA PD operates on the assumption that they must confiscate per the Lautenberg Act.

I doubt that a MA judge would authorize mutual ROs. I know that in 99% of the cases the MA PDs operate as the only one to blame is the male party. From what I hear, the judges do the same but I have no proof (numbers) to back either belief up. You could spend a day sitting in a probate court in MA and draw your own conclusions.

 

[firestorm]

MGL REQUIRES confiscation upon issuance of the ex-parte temporary RO. Most other states have laws that give both parties their day in court BEFORE confiscation is mandated (by Fed Law).

Will another state confiscate when a MA PD contacts them about a temporary RO? My bet is that the MA PD would NOT tell them it is merely an ex-parte temporary RO so that the non-MA PD operates on the assumption that they must confiscate per the Lautenberg Act.

I doubt that a MA judge would authorize mutual ROs. I know that in 99% of the cases the MA PDs operate as the only one to blame is the male party. From what I hear, the judges do the same but I have no proof (numbers) to back either belief up. You could spend a day sitting in a probate court in MA and draw your own conclusions.

The trick will be plausible deniability. If all your things are out of mass, and not in your hands (Such as at some friend's home out of state, not your out of state residence) you can be truthful saying to the out of state PD that you do not have the items in question.

If it is just a LTC issue, you can still use them as you are not prohibited, simply not able to have them in MA. If a RO and thus a fed PP until it is resolved you can't have anything to do with them, but ownership shouldn't matter as long as you never take possession of them until after it is resolved.

 

[dcmdon]

What does Fed law say as far as being a PP because of a protective order? Must they go to a Licensee or the Police or can they go to a friend?

Must they be "transferred" per the ATF definition, or must they just not be in your possession.

There is also a practical aspect of this with respect to the cops and their expectations.

If I sell a firearm I purchased on a FA10 out of state, the cops will still think I have it and will want it. There is no legal requirement that I maintain documentation of the sale.

Conversely, if I move to MA with firearms, the state will not have any record of their possession. Neither will the feds in some cases, even if they do a trace from the manufacturer on down.

 

[42!]

What does Fed law say as far as being a PP because of a protective order? Must they go to a Licensee or the Police or can they go to a friend?

Must they be "transferred" per the ATF definition, or must they just not be in your possession.

There is also a practical aspect of this with respect to the cops and their expectations.

If I sell a firearm I purchased on a FA10 out of state, the cops will still think I have it and will want it. There is no legal requirement that I maintain documentation of the sale.

Conversely, if I move to MA with firearms, the state will not have any record of their possession. Neither will the feds in some cases, even if they do a trace from the manufacturer on down.

You seem to be asking two questions. 1) what does the law say 2) what am I likely to get away with. I would not be comfortable withholding firearms simple because they were not specifically asked for. Simply because they could be giving you enough rope to hang yourself, or they may find out later, and you'd be screwed.

Regardless of what the law says, I would expect the PO will want all firearms that have not been legally transferred to another individual. Could be an individual or FFL but there will need to be paperwork, not just someone "holding" them for you. And if they have knowledge of a gun and you claim it was sold out of state, you better have proof, because they are very likely to just arrest you and let it get sorted out later.

It may not follow the law but the cops will assume you are lieing and err on the side of caution....unless you have connections.

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[dcmdon]

I specifically want to know if Federal law requireds you to transfer (per federal definition) firearms out if you are a temporary prohibited person. (like with a protective order) Or if simply giving them to someone to hold.

I'm looking for the actual text of the reg or law. I'm looking to see if it uses the words "transfer" or "possess".

Don

 

[Len-2A Training]

I specifically want to know if Federal law requireds you to transfer (per federal definition) firearms out if you are a temporary prohibited person. (like with a protective order) Or if simply giving them to someone to hold.

I'm looking for the actual text of the reg or law. I'm looking to see if it uses the words "transfer" or "possess".

Don

Google "Lautenberg Act". The answer should be in that law.

 

[TayNinh_66]

I specifically want to know if Federal law requireds you to transfer (per federal definition) firearms out if you are a temporary prohibited person. (like with a protective order) Or if simply giving them to someone to hold.
I'm looking for the actual text of the reg or law. I'm looking to see if it uses the words "transfer" or "possess".
Don

Federal law is silent on TRO. (Although many states have enacted regs to cover it)
See text at [FONT=&quot]18 U.S.C. § 922(g)
[/FONT]Summary (in english) at https://www.atf.gov/file/58781/download

I suspect any judge could easily sidestep the law. Ex files for TRO Mon AM, Judge schedules hearing for Tue PM and mails out notice Mon PM. Tue PM judge enters RO and you are PP. You were notified and never showed up. You would win on appeal but guns are long gone.

Note that if you become a PP then simply giving them to someone to hold could be construed as constructive possession. a no no.
http://www.rip.uscourts.gov/rip/supervision/firearmpossession/FirearmPossessionProhibition.pdf

 

[42!]

I think what you will find is that there is no distinction between an ex parte TRO an RO with a review/experation date or a permanent RO. To add to the confusion in MA there are 209a domestic violence RO which make you PP and 208 no contact RO which have no affect on guns. Clear as mud.

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[Rob Boudrie]

Federal law is silent on TRO.

Federal law states a restraining order issued after one has been given a chance to appear in court to defend against the issuance of said RO. The issue is not the "temporary" nature but if it is ex-parte.

I think what you will find is that there is no distinction between an ex parte TRO an RO with a review/experation date or a permanent RO.

The only difference (and one without a distinction in the DPRM) is that an ex-parte order does not trigger FEDERAL prohibited person status. The Feds require at least the illusion of due process and the ability to defend one's self ... a pesky detail that is of no concern to the MA legislature or courts.

 

[Tyrantresister]

MGL REQUIRES confiscation upon issuance of the ex-parte temporary RO. Most other states have laws that give both parties their day in court BEFORE confiscation is mandated (by Fed Law).

Will another state confiscate when a MA PD contacts them about a temporary RO? My bet is that the MA PD would NOT tell them it is merely an ex-parte temporary RO so that the non-MA PD operates on the assumption that they must confiscate per the Lautenberg Act.

I doubt that a MA judge would authorize mutual ROs. I know that in 99% of the cases the MA PDs operate as the only one to blame is the male party. From what I hear, the judges do the same but I have no proof (numbers) to back either belief up. You could spend a day sitting in a probate court in MA and draw your own conclusions.

Hahaha, no.....

They will tell them that it is a temporary order (they have to forward them the paperwork anyway) and the out of state PD won't care, and will follow MA orders to confiscate anyway...

I live in NH over the border from MA. Was dating a girl in a certain scummy MA city not too far from the border. MA girl gets mad during our break up, also happens to work for some social justice org right across the street from the courthouse..... Now ex GF was told by her scum bag SJW coworkers that the way to REALLY get back at me was to file a RO and get all of my guns taken.... She then proceed to waltz across the street to the court house, file RO (making sure to tell them that I owned DOZENS of guns, MANY OF THEM AR15s (yes, this was actually HAND WRITTEN on the RO by the court staff).

The typical restraining order is for 100 yards, however because of how many guns she told them I owned, they made it for 1,000 yards..... Yes, One Thousand yards, or 3,000 feet. I couldn't be within 3,000 feet of her home, OR her place of business (which was right next door to the court house), OR any place she happened to be at any given time.

Keep this in mind, the 1000 yards was the RADIOUS of each ban circle as I couldn't be within 1,000 YARDS of either of those three places, in any direction. That is 3,141.6 square YARDS of no go zone PER EACH OF THE THREE BANNED AREAS! These three no go zones of 3,141.6 square YARDS effectively banned me from the entire scummy MA city, which was interesting because I had court dates in that scummy city now! Not only that, but how do I know if she happened to be 1000 yards from me even if we are both outside of said scummy MA city, which would have put me in automatic violation of the order???

Because of all the scary firearms, scummy MA city made sure to expedite the RO and gun confiscation orders to my local NH PD. Apparently when MA tells NH to jump, NH only asks “how high”? Local NH PD were only too happy to comply, and had my place staked out in force to confiscate all of my evil guns (multiple officers and cruisers). Normally they would just serve the RO but because she tipped them off about the guns, and how many, they were out in full force to take them all. I wasn't even allowed in my own home while they were ransacking my place, ripping it apart, for all traces of guns, ammo, and even gun accessories (not in the order, but taken anyway).

Long story short, after all of that stress, trauma, and humiliation we go to court (had to pay big $$$ to hire a good attorney). When ex-girlfriend found out I was going in armed for bear, she appealed for and got an attorney from the state herself. Said attorney tried to demonize me as being a racist paranoid gun owner, etc. Luckily, I had an impartial judge who saw it was all BS and had the whole thing dropped, but I could have been in serious trouble. Remember, in a RO case, they don't even have to prove beyond a reasonable doubt (majority of evidence) to strip you of your rights and property, they only have to prove a "preponderance of evidence" (if they think there is even a small chance that you MIGHT be a threat)

Getting the guns back from the local NH PD was another story, after all that work taking them, they don't like to give them back....

The restraining order is the most egregious and unconstitutional violation of rights in this country. Violating not only the 2nd Amendment, but a person's right to due process before having rights and property taken away. Everyone should be allowed due process under the law as constitutionally mandated!!!!

 

[Len-2A Training]

Tyrenatresister, I'm surprised that they didn't violate you on appearing in the courthouse to defend yourself in this case. Your experience is unfortunately typical of what it is like for males in MA when any dispute involving an SO occurs.

 

[Kappa92]

An ex-parte TRO is not a federal disqualifier, but is a state disqualifier.

The federal DQ does not kick in until the restrainee has had a chance to defend against the issuance of the RO in court.

I had a ero for 1 day and never knew about it until I applied at a few local departments roughly 3 years later. I have recently been denied a purchase after being able to buy in the past. Could that be the reason?

 

[Kappa92]

Thank you for the information, I have talked with the department that licensed me they said no issue in MA.
However I have the nics denial saying state issue.

 

[Parker Schreiber]

I think what you will find is that there is no distinction between an ex parte TRO an RO with a review/experation date or a permanent RO. To add to the confusion in MA there are 209a domestic violence RO which make you PP and 208 no contact RO which have no affect on guns. Clear as mud.

There is such a distinction under Federal Law. The language codified by the Lautenberg Act is (emphasis mine):

(8) is subject to a court order that 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, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)(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;

See: 18 U.S. Code § 922 - Unlawful acts

 

[42!]

There is such a distinction under Federal Law. The language codified by the Lautenberg Act is (emphasis mine):

(8) is subject to a court order that 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, except that this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
(B)(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;

See: 18 U.S. Code § 922 - Unlawful acts

Technically 208 orders are pending filing of divorce and are intended to keep either party from hiding/converting assets. But they can contain other conditions as specified by the judge. So they can restrain contact and can prohibit firearms, but they don't inherently do so. And it is NOT considered a domestic violence order, so the Feds don't care.At one point I was under one of these, with a no contact provision but did allow firearms posession. She couldn't get a 209a with the total lack of DV, so this is what the judge allowed. During that time I continued my FFL business, personally bought guns, and renewed my LTC.
So they are treated very differently.