its_kathie said:
The police can arrest when an RO is violated. The DOJ registration is the only means we have at this time to monitor weapons.
However, an arrest requires probable cause to believe that a crime has been committed and that the suspect has committed a crime. Your belief that he has the weapons - even if supported by a DOJ record - is not sufficient for probable cause. if the crime were that he not have a record of any firearms registered to him with the DOJ, he'd be done dead to rights.
The two issues here are (1) do they have enough to get a search warrant in an attempt to locate the weapons at his house and mom's, and (2) are they willing to go through those hoops.
I'm gonna guess that "2" plays a large part in this equation. But, I have serious doubts that a judge would sign a search warrant based solely on the DOJ printout.
Question: If they did conduct a search of his house, and they did not find the weapons, what would you want them to do next? They can't possibly obtain and serve search warrants on the homes of everyone's home where he might have hidden the guns. And, since this a misdemeanor, it is not a very prudent expenditure of resources ... especially since to do so might lead the way for EVERY restraining order applicant to receive the same level of investigation. Frankly, my agency could not afford to do it - I don't have the manpower. Larger agencies certainly face the same limitations.
Perhaps, if he was facing a criminal charge involving the use or threats to use a firearm, this would be prudent. But for a misdemeanor court order violation, sorry, it's not.
they didn't know the DA can file contempt without a police report,
Did he? Mine wouldn't. In fact, I don't know of any DAs that would. But, they can if they want.
and the police can arrest on simple violation.
WITH probable cause. The DOJ printout is NOT sufficient to show that he possesses or owns the firearm.
But when "he" tells the officers one firearm is at his "mom's" and the DOJ registration shows he is the owner, well, that's possession and control.
No, it's not. It might be OWNERSHIP, but it is neither possession nor control. Yes, ownership is forbidden pursuant to a DV TRO, but, whether your DA will file on this is another question entirely. he could just as easily get a citation.
Also, the suspect's statement - by itself - is not proof of the offense. Unless they can find the firearm or otherwise confirm it's presence at mom's AND the defendant's ownership, the elements of the offense are tenuous.
A very similar case happened in San Diego about a year ago. San Diego wasted no time. The restrained was arrested, charged, and jailed. Simply holding these men accountable of the court order is not an unreasonable request.
Certainly. But they had probable cause to make the arrest, I'm sure.
Oh, I used to work down there and I received my DV training from the San Diego Regional Academy - one of the nation's leading instructional institutions on the topic.
The police do not have to kick the door down. They have the law behind them to arrest when there is any violation.
Again, the issue of proof - and probable cause - comes to the fore.
It was up to my ex to clear up his record; he failed, now hold him accountable.
Legally, he does not HAVE to "clear" his record. The state has to prove his guilt.
If, at his hearing, he is unable to provide proof of the sale of any owned firearms to the court, the court can take action based upon that failure to provide proof. The initiation of action on failure to provide the court with proof is with the court in this matter. You can certainly speak to the DA or contact the court and see if they are willing to take action based upon his failure to provide the required documentation within 72 hours. It has been my experience that they usually wait until the scheduled court hearing.
I am frustrated, to say the least. I have the facts, the proof, and even my ex's own statement, yet still no one is responding.
Understand that law enforcement is weary of DV related issues. Some 8 out of 10 victims change their mind and refuse to cooperate almost immediately - many risk jail themselves to help keep their attacker out of trouble. With so many domestic violence related calls and alleged court order violations, we cannot possibly conduct detailed investigations o every allegation. I have limited manpower and resources. We just cannot investigate misdemeanor offenses to the level you might want them to be done. Again, perhaps if the firearms were an element of a criminal offense for which he has been charged, but when it is arguably a family court matter, then it is not going to be high on the monitor.
This clearly is my lot – I am not asking the law to stand guard. I am demanding, however, they follow through on what information is available to them, instead of attempting to brush me aside.
Unfortunately, there is no legal requirement that they follow-up on it in the manner you wish them to do ... or, even follow-up at all. it all comes back to priorities and resources.
I brought this up as a case and point to the poster that stated law enforcement cannot be sued. If you will recall, I never said they lost; I said there was a law suit filed. If the law suit wasn't filed, there would be no settlement or judgment (just a play on words), my intent wasn't to imply there was a judgment.
And the point of my reply was that prior to this case there had been no case ever left standing that indicated that the policy had an affirmative duty to protect. Had this case been moved forward, it is likely that the plaintiffs would have to have modified the matter to be about racial discrimination (which is part of what they alleged), or, to have had it kicked out due to ample precedent on the duty to protect issue.
We will never know what the opinion was for it never made court. Therefore, our "thoughts" are just speculation.
Based upon multitude of case law in CA and up to the USSC on this subject it is VERY likely that the matter would have been modified or dismissed as above.
I do not speak for myself alone. There are too many women dying, suffering, and in pain. Not only the women, but the children, the extended family, and the community.
And until they change the issues surrounding search and seizure, probable cause, and mandate priorities for law enforcement outside the level of the offense, the movement toward any change will be limited.
Don't misunderstand, I am against DV and all for prosecuting the offenders. However, there are great difficulties with prosecuting someone based on the paucity of evidence you speak about in this matter. COULD it be done? Maybe. Does the DA have the stones to pursue it? Probably not. This is something you will have to ask him or her since it is ultimately that DA that would have to take a case to court with whatever evidence (or lack thereof) they have in their possession.
- Carl
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