Divorcing Our Gun Rights, by Cheryl Todd
Are we divorcing our gun rights away? A friend recently speculated to me that one of the surest ways to lose your guns rights, may be in the process of divorcing one’s spouse. This came up in the course of a conversation about how people may inadvertently be endangering their gun rights – (my husband Danny and I are fine – just celebrated our 31st Wedding Anniversary – so, to all our friends – no worries, we aren’t doing research for ourselves).
My friend said he had heard it rumored that it is almost a regular course of action that when a couple is getting a divorce that their lawyers will advise them to place restraining orders against one another. It is my understanding that when a person has a restraining order filed against them they must give up their firearms. So, while perhaps not probable, it is possible and conceivable that we have scores of people who are being forced to give up their Second Amendment rights, and being disarmed by the maneuvering of divorce attorneys and emotional soon-to-be ex-spouses.
I decided to ask-the-experts. I am blessed to know some wonderful people who specialize in areas of the law that relate to firearms ownership. In this article I will introduce you to Attorneys Michael Kielsky and James K Marovich, and author and gun-rights expert, Alan Korwin.
Below is our conversation:
Cheryl: Please comment on what happens when a restraining order is placed on a person who is a gun owner?
Michael: In Arizona, these things are called Orders of Protection. They may or may not include allegations that the person against whom the order is sought possesses and could misuse firearms. If the Order is issued, it remains in place for one year after it is served. It does not have to, and often does not, include an order to surrender firearms to a police agency for the duration of the order.
James: Unless the petitioner asks for a restriction on firearms, that does not have to be included. It is not automatic. Usually it is included if or when the petitioner claims that there has been domestic violence.
Cheryl: It is encouraging to hear that this has not become an automatic part of un-coupling a marriage, but in the event an Order of Protection is filed by one or both of the divorcing parties, how can the restraining order can be lifted or contested?
Michael: The target of the order has the right to request one and only one hearing to challenge the order. It is the burden of the petitioner to show that the order was properly issued, and the defendant has the right to present testimony and evidence to challenge the claims. In the most common Order of Protection cases, once there is a hearing, and if the order is upheld, the defendant becomes a prohibited possessor for the balance of the order, even if the request never mentioned firearms — that is a serious risk when challenging this kind of petition.
James: The respondent can ask for a hearing. At the hearing, the respondent can request that the order be modified or, if justified, lifted in its entirety.
Cheryl: Do you have any knowledge of whether or not this has become a common practice in divorce maneuvering?
Michael: This is NOT a routine practice, although it happens a lot if there is a proper basis (and evidence) to claim there have been acts of domestic violence or there was conduct which would create a serious risk of domestic violence unless the order issues.
James: A preliminary injunction, which is a court order gives the divorcing couple a list of dos and don’ts, is issued in all divorce actions when a case is filed. Sometimes a party might see the preliminary injunction as not enough protection. If so, that party might seek a protective order, also.
Note the paragraphs below, excerpted from the Superior Court of Arizona “Petition for Dissolution” preliminary injunction form, which has a variety of instructions, including prohibitions against physical abuse, harassment and threats, but does not mention firearms:
REQUIREMENTS OF BEHAVIOR: That both parties are enjoined from molesting, harassing, disturbing the peace, or committing an assault or battery on, the person of the other party or any natural or adopted child of the parties.
ACTIONS FORBIDDEN BY THIS ORDER: From the time the “Petition for Dissolution” (Divorce) or “Petition for Annulment” or “Petition for Legal Separation” is filed with the court, until the judge signs the Decree, or until further order of the court, both the Petitioner and the Respondent shall not do any of the following things: You may not hide earnings or community property from your spouse, AND You may not take out a loan on the community property, AND You may not sell the community property or give it away to someone, UNLESS you have the written permission of your spouse or written permission from the court. The law allows for situations in which you may need to transfer joint or community property as part of the everyday running of a business, or if the sale of community property is necessary to meet necessities of life, such as food, shelter, or clothing, or court fees and attorney fees associated with this action. If this applies to you, you should see a lawyer for help, AND Do not harass or bother your spouse or the children, AND Do not physically abuse or threaten your spouse or the children, AND Do not take the minor children, common to your marriage, out of the State of Arizona for any reasons, without a written agreement between you and your spouse or a Court Order, before you take the minor children out of the State. Do not remove, or cause to be removed, the other party or the minor children of the parties from any existing insurance coverage, including medical, hospital, dental, automobile and disability insurance. Both parties shall maintain all insurance coverage in full force and effect.
Cheryl: Thank you for clarifying that filing an order of protection is not in the checklist included in a Petition for Dissolution, and not necessarily an automatic step on the road to dissolving a marriage partnership. However, divorce is a messy process and brings out our most intense emotions of anger, distrust, fear, and retribution. It doesn’t seem a far-fetched notion that in this win-at-any-cost world, defaming one’s soon-to-be ex-spouse, or “punishing” him or her by attempting to take away their Constitutional Rights could be achieved by simply filing an order of protection. And, it could be a sneaky way for an angry or vengeful ex-spouse who wants to be sure their intended victim is unable to defend him or herself…file a restraining order and then attack the person once you are sure they, as a law-abiding citizen, have complied with the law. What are your thoughts?
Michael: Yes, potentially that could happen. In reality however, I have heard of no case where a person who was disarmed by means of one of these orders was then attacked (in a way that would require a firearm for self-defense) by the person who had requested the order. It’s conceivable, and it may have happened, but I don’t personally know of anyone ever planning it out that way.
James: Although that is a cynical way of looking at things, there might have been occasions where a soon-to-be ex-spouse has had that intent. Hurtful behavior is common in divorce actions. In my experience, when a spouse has been threatened and has become afraid of domestic violence, or violence of any kind, from the other spouse wherever it may occur, that spouse seeks as much protection as she/he can get.
Cheryl: This has been an interesting and enlightening conversation. I feel encouraged knowing that losing one’s Second Amendment Rights has not become a normal part of divorcing after all. What other ways can people inadvertently lose their gun rights? (Perhaps possession of a medical marijuana card, seeking mental health counseling, what else?)
Michael: Those two you mentioned, as well as renouncing one’s citizenship, committing a felony (though not usually inadvertent, but could be).
James: Because my knowledge of 2nd Amendment law is limited (my practice focuses on criminal law, specifically the law of justification), I will leave this answer to those who know more. To make a guess, committing a crime that is more than a misdemeanor will do it. The two that you mentioned do not ring any bells; for example, merely getting counseling will not cause loss of the right to carry a firearm. Millions of people get counseling for all kinds of reasons – sometimes to help them through a divorce. The question about medical marijuana is a good one; it is legal under state law but the feds do not approve. That raises some interesting constitutional issues, but I am not up on that law so I cannot comment.
Alan: “I recently attended a Panel Discussion to examine the implications of the Miranda case, which is celebrating its 50th anniversary. And the “take-away” is that Miranda is working just fine, it’s people who are the problem. People are their own worst enemy. Even after they have been read their rights by the arresting officer they insist on trying to ‘explain’. And, even repeat offenders who should know better, and know the routine ‘explain’ themselves right into jail.”
We have all likely heard the Miranda Warning in movies and on television police dramas: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” But, few know the history of the Warning.
The background and history of Miranda Rights, is an interesting story, and are so named because of the last name of the defendant in a case back in the 1960s. A Supreme Court decision, found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for armed robbery, kidnapping, and rape of a mentally handicapped young woman. (Miranda was subsequently retried and convicted.) Source: Miranda Warning
From the MirandaRights.org website: Miranda Rights were created in 1966 as a result of the United States Supreme Court case of Miranda v. Arizona. The Miranda warning is intended to protect the suspect’s Fifth Amendment right to refuse to answer self-incriminating questions. It is important to note that Miranda rights do not go into effect until after an arrest is made. The officer is free to ask questions before an arrest, but must inform the suspect that the questioning is voluntary and that he or she is free to leave at any time. The answers to these questions are admissible in court.
Alan: “I wrote a book on the topics of explaining yourself into jail and inadvertently giving up your rights, called “After You Shoot”. In this book I discuss the problem with 911 calls and the information people give over a recorded phone conversation to authorities. These calls do not fall under protected information. By doing the natural thing of calling for help people may inadvertently incriminate and convict themselves, especially on the 911 calls they are encouraged, but not required, to make.
Cheryl: Gentlemen, Michael, James, and Alan, thank you for offering us your time and your expertise. Each one of you brings an important aspect to the legalities of firearms ownership and how to handle involvement by the authorities.
Firearms ownership, whether for the purpose of Conceal Carry, home protection, or simply a hobby comes with incredible responsibilities. We must be aware of the pitfalls and the legal implications of our actions, so that we don’t “divorce our gun rights” Alan Korwin’s books are filled with invaluable information that every gun owner should know, from the importance and history of the DC vs Heller Court Case that affirmed our individual rights under the Second Amendment to the state-by-state gun laws guides that Alan updates every year. James Marovich offers self-defense legal services and encourages every gun owner to develop a professional relationship with an attorney, such as himself, before you purchase your first firearm. We live in a litigious society and, as an insurance policy of-sorts, it is wise to have retained council who you can all at any time, day or night, prior to becoming armed. Michael Kielsky offers a proactive measure as well – a business card that may be handed to the authorities should you encounter an issue involving the police. On the back of Michael’s business card that I keep in my wallet are the words: “I want my attorney. I invoke my right to remain silent. I do not consent to a search of any kind, not of me, my effects, premises, immediate location, or vehicle. I hereby invoke all rights, including but not limited to those in the 4th, 5th, 6th, 9th, & 14th Amendments to the US Constitution and the Declaration of Rights in our State Constitution. I want my attorney present before and during any questioning and before discussing any waivers.” Being armed with this kind of knowledge (and training), and the forethought to know our rights in advance of dealing with a problematic situation will help us all to not “divorce our gun rights”.