Category Archives: False Allegations To Obtain A Colorado Restraining Order

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case

Colorado Domestic Violence Gun Ban Law

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Colorado Domestic Violence Gun Ban Law

Colorado Domestic Violence Gun Ban Law

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case – A San Diego man, Daniel Chovan, was angry that a misdemeanor domestic violence conviction from 1996 deprived him of his second amendment right to bear arms.  He filed suit in the ninth circuit federal court challenging the constitutionality of a federal law making it illegal for a person convicted of misdemeanor domestic violence to ever bear arms under the second amendment again for life.

The law in question and under constitutional attack was (and still is) United States Code 18 U.S.C. § 922(g)(9). The federal law, passed by Congress in 1996 to “combat” domestic gun violence has resulted in millions of citizens losing their right to bear arms.

United States Code 18 U.S.C. § 922(g)(9)

Under 18 U.S.C. § 922(g)(9), persons convicted of misdemeanor domestic violence crimes are barredfrom possessing any firearm for life. Section 922(g)(9) establishes two exceptions under which the statute will no longer apply:

(1) “if the conviction has been expunged or set aside”;

or

(2) if the offender “has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” 18 U.S.C. § 921(a)(33)(B)(ii).

History of United States Code 18 U.S.C. § 922(g)(9)

Originally passed to bar gun possession ONLY by those convicted of violent felonies, the law was amended and extended in 1996 to cover misdemeanor convictions of domestic violence.

Unlike Colorado, which has no method to seal – expunge a misdemeanor state conviction for a domestic violence “tagged” crime, Californians can get their convictions erased after they have completed their sentences AND persuaded the courts that they have “lived an honest and upright life” for a sufficient period of time.

The Facts of Chovan Are Simple and Familiar

The federal domestic violence gun ban was challenged by a San Diego man, Daniel Chovan, who was convicted in 1996 of assaulting his girlfriend in their mutual home. After more than a decade he attempted to buy a gun and was denied the right. Later, a new dv “complaint” was filed against him, the police went to investigate and they found several guns which they seized from his home.  He appealed.

Another case, decided in a 2008 U.S. Supreme Court ruling, held that “law-abiding, responsible citizens” have a constitutional right to possess and use guns in the home for self-defense. In that case, District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense.

The Holding Of Chovan And The Damage It Has Done To Second (2d) Amendment Rights

In a lengthy and complex decision, the Ninth Circuit Court of Appeals held, post Heller, that even a one-time perpetrator of domestic violence may no longer be considered the type of “law-abiding, responsible citizen” entitled to possess guns, based on evidence presented by the government.

The Court relied on “studies” showing that those who are considered “domestic abusers” have high rates of re-offending and often use firearms when committing their crimes and that if an invidual has been convicted of misdemeanor domestic violence assault, he or she is” likely to commit acts of domestic violence again and that, if they do so with a gun, the risk of death to the victim is significantly increased.’

A Colorado Criminal Lawyer’s View – H. Michael’s Take

Criminal attorneys in Denver, Colorado, have been criticizing the decision. This criminal lawyer in Denver believes that a federal lifetime ban on gun ownership for domestic violence misdemeanants violates the Second Amendment and that the Chovan court’s decision flies in the face of the Heller decision.

It is well known to experienced criminal attorney’s in Colorado and across the nation that when estranged wives and girlfriends call the police alleging threats of domestic violence- they are many tines false and motivated solely for reasons of vindictiveness.

Section 922(g)(9) was passed with good intentions… that guns were be kept away from domestic abusers, but the Court’s holding that the government interest extending the law to lifetime convictions – (and ignoring Heller). thus denying the right to prove an individual convicted of domestic violence can change and attain rehabilitation, is just wrong.

The important government interest of preventing domestic gun violence is not served by denying good citizens the right to bear arms, in Chovan’s case, more than 15 years after a misdemeanor conviction for dv.

The Restoration Of Gun Rights And Colorado Domestic Violence Cases

As noted above, Colorado does not have a method to restore gun rights in domestic violence convictions unless the conviction was for a municipal code domestic violence conviction.

The civil rights restoration exception under § 922(g)(9) provides legal mechanisms for which both misdemeanants and felons can qualify for restoration of their gun rights. These include pardon, expungement, and the setting aside of convictions.” In California, not Colorado, there exists a state based restoration process of civil rights that meets the requirements of the federal ban under 922(g)(9) and that process has been upheld by the Supreme Court as constitutional

In short, the fastest way to restore gun rights under federal law – would be to enact legislation in Colorado to give Colorado citizens the right to try to seal – expunge domestic violence and all other misdemeanor and felony convictions for that matter through a procedure that places in the hands of competent and elected officials the right to reverse and seal ALL misdemeanor and felony convictions more than 10 years old. Contrary to the Chovan court.

What Women Want – Why Colorado Domestic Cases Should Be Dismissed In Favor Of Evaluation And Fair Treatment Modalities

Why Colorado Domestic Cases Should Be Dismissed

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Why Colorado Domestic Cases Should Be Dismissed
Why Colorado Domestic Cases Should Be Dismissed

Why Colorado Domestic Cases Should Be Dismissed  – Experienced Colorado criminal defense lawyers who practice in the courts of Colorado are only too well aware of the problems that have arisen out of the “one size fits all” approach of Colorado Domestic Violence Laws.

When a woman (or a man – in the minority of cases) has been the alleged victim of an assault or some form of harassment, they will call the police for help. What they receive, because of a lack of education, is not help – but the destruction of their family or their relationships.

Mandatory Arrest Laws Make No Sense

Restoring the discretion of the police to separate serious acts of domestic violence from the spat that often accompanies difficult marriages or relationships, is what the police used to do when I first started as a young Colorado county prosecutor in the early1980s, Colorado domestic violence cases were treated no differently than all other misdemeanor and felony prosecutions.

What a married couple or anyone in a long term relationship well knows – the police are most often called to “settle” threats to: abscond with the children – resolve accusations of infidelity, mediate issues related to financial pressures and the resulting frustration.

But when the police or other authorities are called to break up the typical “family fight” in Colorado  – “someone is going to jail” and the alleged assailant is mindlessly arrested on an what is typically an assault or harassment charge.

No Room For “Making Up”

Every case today requires an arrest and a “no bond” hold until a judge can enter a restraining order in open court – even if the victim wants to drop the charges. For the last twenty plus years couples in Colorado are given no opportunity to just cool off and  “make up” without the impact of an immediate and mandatory arrest. Later, the alleged victims are forcefully “counseled” by both the police or the DA “victim” advocate – to obtain permanent civil restraining orders that prevent all future contact. This makes no sense.

Why Colorado Domestic Cases Should Be Dismissed – Mandatory Arrest And Prosecution – Destroys Relationships – Mediation Is Key

One of the chief rationales for mandatory arrests and no contact restraining orders  – is that these procedures “take the burden off” victims. The idea is”pro-prosecution” approaches  “remove responsibility” from the alleged victims for the decision to move forward. The truth is – by taking ALL control away from women in the criminal justice system, women then suffer the social or economic consequences of the impact of jail on their significant other and the ultimate destruction of the fabric of the entire social lives with little to show for it.

A judge in one of New York’s largest counties put it best:What these women want most is for their men to get help with their problems.”

That help, in my opinion after 30 years in Colorado courts on BOTH sides of the issue as a prosecutor and as a defense lawyer  –  is mediation and counseling, not prosecution.

What Ultimately Happens To The “Victims” – ‘Coerced Prosecution’

Forcing a woman victim of a relatively minor domestic violence “argument” into a “coerced prosecution” makes her a hostile witness. It also doubles the sheer number of cases of domestic violence that cannot be resolved without a trial. It is a meat hook approach to a delicate set of issues.

The Danger Of “Unintended Consequences”

Often what started as a small disagreement in a strained relationship – with some mutual pushing and shoving – following the impact of the Colorado domestic violence machine – leads to enhanced violence when the process has finally ended. When mostly men – humiliated and harassed by an unthinking and unfeeling system are finally released from jail – a major study of domestic violence finds them much angrier and less in control of their emotions than before the arrest…leading of course to either the destruction of their family or relationship – or further disharmony and violence.

Many studies have shown that the loss of employment – often the result of the mandatory jail sentence in these “fast tracked” cases, leads to significantly MORE violence later in time and calls into question the “wisdom” among criminologists, that arresting the alleged abusers is really the best way to protect women from future disputes with their significant others.

The evidence forces us to confront the fact that mandatory arrests in domestic violence cases may cause more violence against women in the long run,” said Lawrence W. Sherman, a criminologist at the University of Maryland

“In communities with high unemployment, the net effect of an arrest policy is more violence,”

Why Colorado Domestic Cases Should Be Dismissed – H. Michael’s Take

Taking away police discretion and flexibility – while politically attractive in Colorado – is a mistake. The police are on the scene and the have the best vantage point to”make the call” give them back their right to decide when to “cool off” the parties and when an arrest and prosecution is really necessary.. trust their judgement as we do in all other spheres of criminal investigation and prosecution. Why Colorado Domestic Cases Should Be Dismissed – because other avenues of mediation and treatment “heal” not destroy families and relationships.

New Push In Colorado Domestic Violence Cases To Obtain Permanent Restraining Orders – Take These Orders Very Seriously

By Colorado Domestic Violence Criminal Defense Lawyer – Attorney – H. Michael Steinberg

The impact of a domestic violence restraining order cannot be understated – this article attempts to educate you – the Colorado citizen – on the issues pressing on the target of such an order

False allegations of domestic violence are common in divorce, legal separation and child custody cases. The strategy of seeking a permanent restraining order is so commonplace today – it is almost expected as standard warfare.

New Push In Colorado Domestic Violence Cases To Obtain Permanent Restraining <a style=alcoholism Orders – Take These Orders Very Seriously” width=”150″ height=”150″ />The Consequences of A Colorado Based Allegation Of  Domestic Violence Are Widespread

False allegations of domestic have BOTH civil and criminal consequences.

The violation of so called  “Protective Orders” in criminal cases often involve incarceration or heavy fines, “no contact” orders entered which may force the alleged perpetrator to vacate the family residence and to have “no contact” with their children.

In Divorce – Dissolution – Child Custody Cases – the “civil” context consequences can be:

  1. A “Presumption” for Custody – If an act of domestic abuse has occurred, the perpetrator may  not win physical placement or physical custody.
  2. There May NOT Be A Mediation of Disputes –  In the context of such allegations – mediation is often suspended and family law disputes are taken out of the civil system.
  3. No Contact Orders – If an act of domestic abuse has been found have occurred, a Judge will enter a civil restraining order prohibiting the target of the order from contacting the alleged victim directly or indirectly, whether through letters, e-mail, phone calls or messages through third parties. In Colorado – a violation of those restraining provisions, irrespective of who initiated the contact is a criminal violation known as a Violation Of A Protective Order (VPO) which can result in jail.
  4. Eviction From The Family Home – The no contact provisions of a domestic abuse restraining order, will evict the target of the order from the family residence. A “civil assist” may be allowed for the target of the order to have the supervised removal of some personal belongings.
  5. Parenting Time Restrictions – A Colorado domestic abuse restraining order will restrict the target’s contact with his own children. This results in limited or the completed cessation of parenting time or it may compel humiliating “supervised” parenting time.
  6. Anger Management Classes May Be Ordered – A Divorce Court may require the target of a permanent restraining order to take anger management classes or other kinds of therapies as a condition of “normalizing contact” with his or her own children.
  7. A Restriction of Civil Liberties Such As Gun – Second Amendment Rights  – The entry of a domestic violence based permanent restraining order is precluded from owning or possessing a firearm for any purpose.

As you can ee – if false allegations of Colorado domestic violence are made, the stakes are very high but getting a permanent restraining order – has never been easier.

Closely Examining And Understanding The Colorado Permanent Restraining Order Process

Although the stakes are high – the actual burden on proving the case in court  – that is – the low burden of proof necessary for obtaining a civil restraining order involving allegations of domestic abuse and the fast track methods used to obtain the order itself -are a scandal in Colorado.

The Low Burden Of Proof For Winning A Permanent Restraining Order

The person seeking a Colorado Permanent Restraining Order need only prove their claim by  a “preponderance of the evidence.” A “preponderance” means that the petitioner must ONLY PROVE that it is “more likely than not” that the type of abuse alleged occurred.

This is the lowest legal standard of proof in the court system.

Judges will often will issue a permanent restraining order very weak and questionable evidence. They will err on the side of caution because of the fear of unwanted attention to their decision should actual violence follow a decision NOT to issue the order.

No Time To Prepare For The Final – Permanent – Restraining Order Hearing

After the temporary restraining order is issued and served – the permanent restraining order hearing is set within 14 days. There is little or no time to prepare. This is true especially for someone who has never been in court. Crowded court dockets require inexperienced respondents to these hearings little time to prepare a solid and just response to false allegations of abuse.

Unfair Limits On The Court Time Allowed To Conduct The Permanent Restraining Order Hearing

Even when the hearing is held, the judge – often with a dozen hearings to conduct – will limit the introduction of testimony and the evidence to help fit all of the pending cases into the Judge’s  busy court schedule. The legal ramifications of the entry of this permanent order may be a lifetime of complications – but the time afforded the defense of false allegations is often less than an hour or two to present the case and since the defendant presents his case after the petitioner presents her case – the time nay be limited even more so.

The Ex Parte Process Imposing A Temporary Order On Little To No Evidence

In Colorado – the issuance of a Temporary Restraining Order – is ex-parte.. that means only the person seeking the temporary restraining order is present in court.

The ex parte restraining order is usually entered with the assistance of a so called “battered woman’s shelter advocate.” Although ex parte relief is supposed to be emergency relief  – the allegations made in court are often gross exaggerations or even outright lies. They are singularly one sided without and without testing or rebuttal by the person who is the accused.

As a result of this one sided submission, most judges issue a temporary restraining order that wreaks havoc on the target’s life. It removes him from the family home, ends contact with his children, and compels the setting of a permanent order or final order hearing in two weeks time.

Your Options At The Final – Permanent Restraining Orders Hearing – What The Judge Will Ask You

At the “return hearing,” the judge will call the case – advise you of the issues to be decided and give you the following options:

(1) Agree to the Restraining Order but with no factual findings that abuse has occurred or

(2) Proceed to final – contested evidentiary hearing to defend against the allegations in the temporary order.

Remember:

(1) In Colorado – unlike many other states – a permanent restraining order is just that – PERMANENT – unless it is later modified by a subsequent court order – and that is VERY difficult.

(2) ANY violation of the restraining order results in a new criminal charges for domestic violence no matter how insignificant the violation. That means mandatory arrest, no bond holds, and can be used in divorce court in later civil proceedings. 

If You Can Afford One – Get A Lawyer Experienced In Defending These Cases

Yes it is expensive but so is the impact on your life if you lose. If you cannot afford a good lawyer then contest the allegations in court and present an aggressive defense. Anyone can be the victim of false allegations of domestic violence in Colorado.

The weak laws defining what abuse is – it is what the judge says it is – and the low burden of proof at the hearings and standards of proof set out in Colorado law – place the target of the restraining order at a considerable disadvantage.  You must be “aggressively proactive” in fighting the charges – do NOT give up and concede defeat.

Denver Colorado Domestic Violence Criminal Defense Lawyer

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author  hmichaelsteinberg@hmichaelsteinberg.com or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.