Posted on 11/09/2004 7:51:23 AM PST by TERMINATTOR
A Pennsylvania appeals court upholds an order to search an alleged abuser's home.
In a decision that pits the rights of gun owners against domestic abuse victims, the state Superior Court has ruled a judge acted properly when he ordered law enforcement to search an alleged abuser's home and seize his weapons and those belonging to another family member.
The controversial 2-1 ruling, issued Thursday, also extends the ability of authorities to seek weapons of an alleged abuser. Previously, a judge could order weapons to be turned over, but did not have the authority to direct a search to ensure compliance.
The ruling was based on a Montgomery County case, but will have statewide impact because it expands the interpretation of the state's Protection From Abuse Act.
Ellen Harris, executive director of the Domestic Violence Service Center in Wilkes-Barre, applauded the decision.
"Of the number of women, children and men killed as a result of domestic violence, more than half are killed by gunfire. It's important to protect lives before we protect guns."
At issue was a ruling on Oct. 13, 2003, by a Montgomery County judge in the case of James C. Mueller Sr., and his son, James Jr., who lived in the same home.
The junior Mueller's girlfriend had obtained a protection-from-abuse order against him after he allegedly pointed his father's loaded handgun at her and threatened to kill her.
Part of the order required Mueller to turn over that weapon and others. But when sheriff's deputies went to Mueller's home, he denied having any weapons. That led the judge to issue a separate order directing a search of Mueller's home and seizure of the weapons by force, if necessary.
In their appeal, Mueller and his father argued they were subjected to unreasonable search and seizure. They noted the state's Protection From Abuse Act does not specifically authorize the search of a home. They also argued the judge violated the father's rights.
The majority opinion, supported by Judges Patrick Tamilia and Correale Stevens, acknowledged the PFA act does not authorize searches. But, in what the judges admitted was "an extraordinary case," they ruled county judges must be provided with flexibility to ensure the safety of domestic abuse victims.
The majority also acknowledged Mueller's father had committed no offense, but said the judge here had to include the father's weapons since the junior Mueller lived with him. "If a court cannot reach weapons located wherever an abuser resides, it nullifies the preventive thrust of the most critical section of the act, that is, to disarm the abuser," Tamilia wrote.
In a dissenting opinion, Judge Justin Morris Johnson said he believed the ruling went far beyond the bounds of the PFA Act and equated to a "gross infringement on a constitutional right."
What Second Amendment?
that judge will be found as the target of those who believe that we are still ruled under the COnstitution of the United States.
that "judge" (aka scumbag lawyer!) needs to be immediately arrested by FEDERAL officers (since he has broken federal law) tried, convicted and hanged by ..... until dead.
BULL$*@^!!!!!
I'm not going to take the side of an abuser and scream 2nd Ammd ... 2nd Ammd.
If you want to keepy your guns, as I intend to keep mine:
#1 Don't beat your wife/gf, and
#2 If your kid beats/threatens his lady, then kick his sorry a$$ to the curb (and out of your domecile)
It's an easy equation.
This is not as much about gun rights as it is about some dumba$$ who thinks its ok to threaten his lady - with a gun. An irresponsible and dangerous owner is the problem in this case. It is irresponsible and dangerous owners who are the ones creating problems for those of us who own, train, and mantain our rights responsibly.
Look at the genesis: If he wasn't abusing his gf there would be no problem. Solution - don't be a punk coward who gets off on threatening/abusing women. And I, for one, will NOT defend said loser in any way, shape, or form.
[/soap box]
More security-by-confiscation bovine excrement. An abusive person will abuse without guns; he will hurt people without guns; he can certainly kill without guns.
So, if I allege your abusing your spouse, your not concerned by this ruling?
If you are acquited .. you get them back, if you are convicted you are felon ... and the 2nd no longer applies.
I see no conflict.
We may have to agree to disagree, but I will say again:
I will not stand by the side of someone abusing his lady - period.
We ought to be glad this yahoo is disarmed.
Hmm...this is one of those threads that will:
1. Get the RKBA folks up in arms because someone took away someone else's firearms.
2. Get a lot of posts deleted by the AM.
3. Ignore completely the fact that people who abuse spouses are buttheads who shouldn't own firearms of any kind. Instead, they should be cooling their heels in prison for a long, long time.
4. Let us all discover who thinks all women are out to get them, and that all women are just looking for a way to get back at men.
Sorry, but spouse abusers are criminals. Arrest 'em and hold 'em without bail until their trial, then, if they're found guilty, lock 'em up for many years. If they're found innocent, give 'em their firearms back. Oddly enough, the percentage of convictions in spousal abuse cases is pretty darned high, at least the ones that make it to court. Lots of these buttheads plead out, though, and save the taxpayers some money.
No sympathy for spouse abusers here.
I agree with most of what you're saying, but I'm going to point out one detail. As long as there were guns in the home, within access of everone there, the woman an her abuser were on equal footing provided she had the will to pick one up and use it. Now that's changed, and I don't think it's to her advantage.
Lessee now, she went to visit him and he threatened to kill her with a gun. So she's going to go back and visit him after the guns are gone because she knows he loves her and they will live happily ever after.
Or
They are living together in his father's house and she doesn't have a job and can't support herself.
I think the courts have far more important cases to resolve than to encourage the girl to live in a war zone, knowing it will only be a matter of time before they will have to issue a restraining order against her boyfriend's fists.
Do you know this to be true, and if so, do you have a link? I don't believe a protection from abuse order involves a subsequent trial -- so there is no aquittal or conviction necessarily involved.
Also, it's not uncommon for the government to confiscate property from alleged drug offenders (before they are convicted of anything), and then to refuse to return said property even if there is an acquittal. There's plenty of precedent for the government to seize property of the merely accused and not give it back.
No due process at all, just an allegation. Now the father and stepdaughter are disarmed. How is this good? The alleged abuser will still find plenty of weapons lying around the house, and the stupid girlfriend and the father, have had their guns taken away.
This isn't a 2nd Amendment issue. It's an assault issue.
This guy is dangerous.
What if the alleged abuser attended a church that advocated strict harsh domination and control by hubsands of their wives? Would the judge have the guts to violate the 1st amendment the way he violated the 2nd amendment by ordering a confiscation of all those church's religious materials in his home?
Allegedly threatened. All we have is her assertion that she was threatened. There has been no court trial. No finding of fact. I could make the same assertion against you. Go to the cops and say, "BlueNgold, pointed a gun at me and threatened me." Then file for a restraining order. Would you support a judges ruling to turn over all of YOUR weapons in that case?
Some of you need to learn the difference between an assertion and a fact.
Due process does not require that a conviction be obtained before any loss of liberty is permitted. Otherwise, arresting someone would be unconstituitional.
Firearms are much more useful as weapons than other devices. If you think this guy is so dangerous since he still has "plenty of weapons lying around the house," then why do you own firearms if you can find plenty of weapons lying around the house, hmm?
The issue of cohabitation - the father's firearms being taken - is slightly less clear, although the fact that the son presents a clear and present danger to society militates towards requiring certain measures - seizing the father's arms, or mandating that he store them in a manner such that the prohibited person cannot obtain them. With the right to own firearms comes the responsibility (oh that horrible word!) to ensure that unauthorized persons cannot use them inappropriately.
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