Guns

Protective Orders, Due Process, and the Second Amendment

"While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case."

|The Volokh Conspiracy |

From yesterday's Tennessee Court of Appeals opinion in Luker v. Luker:

In November 2017, Petitioner and Respondent were in the midst of divorce proceedings. The two continued to reside together in the marital residence, albeit in different rooms. Following the signing of the marital dissolution agreement, the divorcing couple had consensual sexual relations some number of times.

The event giving rise to this appeal occurred on November 14, 2017, when Petitioner alleges she was raped by Respondent. The two parties put forward contrasting accounts of what happened. Respondent's theory of the case throughout has been that there was no rape and that Petitioner and her sister conspired to set him up. In Respondent's account, he and Petitioner had consensual sex and afterward, when Respondent denied Petitioner's request for money, she flew into a rage and accused him of rape. According to Petitioner, she did not want to have sex with Respondent on this occasion and expressed this to him, but he proceeded to rape her.

The trial court issued a temporary protection order, and scheduled a full hearing for a month later, based in part on the husband's request for a delay so that his lawyer could conduct discovery (otherwise the full hearing would have happened two weeks after the temporary order). At the full hearing, the court found in the wife's favor, finding that the husband had raped the wife; but the court of appeals reversed and sent the case down for further hearing.

In the process, the court of appeals rejected the view that ordinary discovery was generally unavailable in protection order cases:

Nothing in our research supports the [wife's] proposition that discovery under the Tennessee Rules of Civil Procedure is prohibited in order of protection cases. The Trial Court had the discretion to manage discovery but did not exercise its discretion. Rather, the Trial Court concluded summarily that Respondent had no right to conduct discovery pursuant to the Tennessee Rules of Civil Procedure, which we hold was error…. While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case.

And the court particularly faulted the court's scheduled decisions that created "a rushed hearing" and barred the husband's lawyer from reviewing the evidence that he had obtained:

Perhaps the most illustrative problem with this case is that Respondent's counsel had two hours before the hearing to review a one and a half hour recording [(consisting of the parties speaking after the incident], along with call logs produced pursuant to the subpoena duces tecum. We believe it impractical to expect a lawyer to review call logs and listen to a one and a half hour recording two hours before a hearing and be adequately prepared for that hearing. What if the recording or call logs opens additional lines of inquiry? What if there is a problem with the audio, requiring multiple attempts to hear? This simply was not meaningful discovery….

Seems correct to me.

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  1. “While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case.”

    That judge is going to get retired as soon as the democrats take over again – – – – – –

    1. Longtobefree: Do you have any specific reason to believe that, if the Democrats “take over” in Tennessee, they are going to mount a campaign to get a Court of Appeals judge defeated in a retention election — something that very rarely happens — simply because that judge supports Second Amendment rights or due process rights in protective order cases?

      1. Prof, I believe Longtobefree was just expressing general cynicism and/or gently trolling. This is the internet remember.

        1. And that kind of low-key pushback is often a great way to deflate that particular practice; or at least reveal it.

          1. Seemed obvious on its face what it was, and it makes the professor look kind of pedantic. But if you think it keeps things more civil, okay.

            1. Well, maybe this is kind of pedantic, but I think that hyperbole about Bad Things The Other Side Is Planning To Do is counterproductive. It makes it harder to work across the aisle, it’s offputting to people in the middle, and it tends to throw off one’s own judgment and ones’ allies. Even if it’s intended as hyperbole, and perceived that way by many, I think it does tend to affect people’s substantive judgment.

              There are plenty of bad things that people (on the other side and one’s own) are actually doing, or likely would do if they had a chance. Better focus on those things, I think, rather than inventing things that they supposedly would do but actually almost certainly wouldn’t.

              1. Well, you are sentimentalist then. Can’t complain I guess.

                https://www.youtube.com/watch?v=IBJGHvt7I3c

  2. ” and a review of the record as a whole, the Court finds by a preponderance of the evidence that on the
    morning of November 14, 2017 Husband committed an act of sexual assault on Wife”

    I’m wondering why the husband wasn’t arrested, rendering the protective order moot. Is it that the evidence supports a preponderance standard, but the prosecutor doesn’t think it can meet the beyond reasonable doubt standard?

    1. Quite possibly — in a well-functioning legal system, one would expect cases where the evidence against the defendant is above the preponderance of the evidence mark, but well below proof beyond a reasonable doubt (say, somewhere in the 51% to 90%+ range). And cases in which there is a swearing contest between the only two witnesses are likely to fall within that category.

      1. Between conventional protection orders and the new Extreme Risk protection orders, it seems like we’ll have to decide what level of proof is required to remove a right, and for what length of time. It seems odd that you’d get a BARD standard for a minor misdemeanor with a minimal penalty, but a lesser standard for a lengthy, or even lifetime, removal of a full blown enumerated right.

        Is this a new topic, or is there existing related caselaw?

      2. Even if it does not appear initially to reach beyond reasonable doubt, that’s what a criminal investigation is for. The preponderance of evidence standard exceeds the amount required for probable cause, and probable cause is all that is needed for an arrest or grand jury indictment.

        1. It’s true that a police officer can arrest someone based on probable cause. But he can also anticipate that the prosecutor isn’t going to be interested in a case that is highly unlikely to involve proof beyond a reasonable doubt. And while it is a good idea to investigate to see if such proof is possible, that investigation often doesn’t require an arrest.

  3. I really don’t see how you get a “preponderance of evidence” where the evidence is just contradicting testimony by two people. Doesn’t that just leave you at 50%?

    Well, unless some (genders of) animals are more equal than others.

    1. You can get preponderance of evidence if one person’s testimony is more believable than the other. The problem is investigators that imagine that they are human lie detectors and don’t seek actual evidence as to which one is lying – and that they nearly always grossly overestimate their ability. Not to mention that a psychopath can lie utterly convincingly.

      There are effective and objective ways to weigh conflicting testimony: internal consistency, and consistency with physical evidence and other known facts. E.g., a family member who is an “anti-social personality type” (in other words, a stupid, lazy, and cowardly psychopathic parasite) could lie convincingly, but if you kept him talking, he’d be telling a different story in 10 minutes. Or the woman who claimed she had been gang-raped on a broken glass table, but wasn’t hurt enough to see a doctor… In a rape case, if the accuser claims “I didn’t touch that woman”, DNA may convict him or clear him. (And if the accuser waited until it was impossible to collect DNA before lodging the accusation, her credibility drops.) If he claims it was consensual sex, it might be impossible to get past 50-50, but sometimes proof beyond a reasonable doubt is easy – e.g., in the Mike Tyson rape case when the ER doctor testified that the victim not only showed signs of rape (or very rough sex), but had been brutally beaten. But an investigator that imagines he can just tell who is lying may not bother to collect such evidence…

  4. ===We believe it impractical to expect a lawyer to review call logs and listen to a one and a half hour recording two hours before a hearing and be adequately prepared for that hearing. What if the recording or call logs opens additional lines of inquiry? What if there is a problem with the audio, requiring multiple attempts to hear?===

    What if even the best TV lawyer with a writer behind them might struggle to make a meaningful analysis in real-time?

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