The Volokh Conspiracy
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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."
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.
