Brady Act Invoked to Prohibit Divorcees From Owning Guns

TheTimesOnline of Northwest Indiana ^ | July 31, 2002 | Bob Kasarda

[Selmo]

Surprise discovered in local divorce cases

Agreements could strip away the right to own a gun

VALPARAISO -- Porter Superior Court Judge Thomas Webber dug around his desk and pulled out a single-page notice likely to come as a surprise to some recently divorced individuals and their attorneys.

The official-looking document announces in capital letters and bold type that as a result of specific wording used in divorce agreements to protect one or both parties from harm, the federal Brady Act has been invoked. The result is the potential offender loses his or her right to possess a firearm and is required to turn over all weapons.

This triggering of the federal law only recently was discovered by Webber and Porter County Magistrate Katherine Forbes while they were implementing state-mandated changes involving the use of protective orders. The changes, which took effect July 1, limit the use of protective orders to cases involving domestic and family violence, sexual assault and stalking.

The Brady Act is triggered by specific language and conditions commonly made part of divorce agreements in Porter County, said Webber. The first of the three triggers occurs when the person is subject to a court order that restrains him from "harassing, stalking or threatening an intimate partner," according to the notice prepared by Webber.

The final two triggers occur when there is an order prohibiting the use, attempted use or threatened use of physical force, and the order is issued after the person has had an opportunity to be heard.

While some attorneys intentionally may seek to trigger the Brady Act, Webber said others likely are to be surprised by the news. It is on behalf of this latter group, Webber has decided to attach notice of the act to applicable divorce agreements. He also is including a suggestion for alternative language that can be used in the agreement without triggering the Brady Act.

"We are now suggesting lawyers take a closer look at standard language," he said.

A different approach has been taken by Christina Miller, a Lake County Circuit Court magistrate who served on the Protective Order Committee, which recommended the changes to the state's protective order law.

When those rules took effect July 1, she began separating protective orders from divorce agreements. Now, each is handled as its own order, she said.

It is important to be careful when triggering the Brady Act, she said, particularly when it involves police officers, security guards or others who must carry a gun for a living.

"We've seen it," Miller said.

The use of two separate orders is the recommended approach in divorce and paternity cases, said Jeffrey Bercovitz, director of juvenile and family law at the Indiana Judicial Center and staff attorney for the center's Protective Order Committee.

"We think it's cleaner," he said.

Porter County's decision to continue including the protective language within the divorce agreement, however, is a valid approach, said Bercovitz.

Webber was aware of the recommendation for separate orders, but said it has not been pursued in Porter County because it would create too much additional work for the county clerk's office and there would be no financial reimbursement. Filing fees cannot be charged for protective orders, he said.

While the concern about the Brady Act is coming to light only in Porter County, Bercovitz said the threat was around long before the July 1 changes to the protective order law. Counties have just been responding at different speeds.

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Bob Kasarda can be reached at bkasarda@howpubs.com or (219) 462-5151, Ext. 345.

[phasma proeliator]

Well - WTF?
Yet another way to take away guns?
Ping!

[dead]

This also adds incentive for an angry spouse of a gun owner to exact revenge by falsely claiming they were subjected to threats or abuse.

That will really make for less messy and vindictive child custody cases, won't it?

"For the children."

[Ancesthntr]

While some attorneys intentionally may seek to trigger the Brady Act...

No kidding! Of course it is used intentionally. Mary and John Smith are having a really bad divorce, though no violence or threats have ever been made either way. John owns some guns, and Mary knows that he values them and his 2nd Amendment rights. Now suppose that John and Mary have a big disagreement on some piece of property, or on the terms of the custody agreement. Tell me - what lawyer wouldn't use Brady against John? Not one.

The solution, at least until the Lautenberg amendment gets repealed (if ever), is to move to the jurisdiction of the 5th US Circuit Court. The Emerson decision offers protection against this nonsense.

[Freedom_Is_Not_Free]

Very interesting article! Unless I misread it, the Webber is trying to insure that divorce lawyers do not inadvertently trigger the Brady (puke) Act for divorces not involving abuse or violnece. He appears to be trying to make sure they don't accidently lose their RKBA rights.

[dead]

Yeah, Webber is the good guy here.

But by pointing out the unintended consequences of this crappy law, he will undoubtedly inspire some unscrupulous lawyers (redundant redundant) to exploit it.

[lideric]

This sounds like the type of case that needs to go to the supreme court so this stupid law can be struck down. That is, if this is really true.

[middie]

Judges in Florida frequently require participants in adversarial dissolutions of marriage (divorce in most states) to divest themselves of all firearms. When individuals are involved in emotional situations like these it often makes very good sense to remove the temptation to give in to a very bad--albeit transitory--impulse. One of my parnters does domestic cases and is very happy when the judge orders the parties to surrender their guns until the stressful period subsides and they are not tempted to cause harm to an adversarial spouse or the lawyer(s).

[weegee]

Better grab their cars too or they may use them to run over their ex-spouse. Better take away their phones too as they may use it to call a hit man.

[Kaisersrsic]

You partner must not have been there on the day the rest of us swore to uphold the Constitution.

[nothingnew]

Better grab their cars too or they may use them to run over their ex-spouse.

Or their soon to be ex-spouse, who might run over them 3 times and then park the beamer on top of them...who knows?...it could happen.

FMCDH

[buffyt]

When my sister divorced her first husband she slept with a gun under her pillow, because he was wacko and had a BAD temper. She moved to another state and remarried. But thank God she kept that gun by her side at night. She did find her ex-husband sneaking around her house one night after they separated, looking in the windows. Later he said he was making sure she didn't have another man there -- she didn't! But he knew she had a gun, maybe that is why she is still alive and happy 12 years later! He was 6'5" and she is about 5'4" and without a gun he could have beaten her up pretty badly. He had punched his fist into walls and a door, when he was high and angry. I hope he recovered from all of his problems too! We don't keep in touch.

[buffyt]

There is a lot more to that dentist killer case. Now in Houston they are saying the mistress was part of a Lesbian ring that stalks rich men and uses them for their money. Dr. Harris was not a smart man.

[buffyt]

Well you can take her gun but if she still has a Mercedes she can still kill you.

[SUSSA]

The Brady Act is violence. It is a violent assault on our basic right to be armed. Any court or juror who would uphold Brady is advancing tyranny pi$$ing on our Bill of Rights.

[mercy]

Gentlemen ignore this at your peril. If you know that you are soon to be divorced or you want to dump the lady ... run out and file a restraining order FIRST. Because she will certainly file one on you as it comes in real handy with the judge. Better yet, don't marry at all. It's a suckers game.

[Draakan]

This is all old news. This was snuck in the Brady after the Brady Bill was passed by Socialist Clinton, and the ant-gun cronies. What is surprising is that more people didn't raise hell when it happened, and some people still don't know about it.

[nickcarraway]

ping

[Shooter 2.5]

"It is important to be careful when triggering the Brady Act, she said, particularly when it involves police officers, security guards or others who must carry a gun for a living.

Nothing new here. We know that a police officer would never lay a hand on their spouse.

[parsifal]

This kind of crap might go over in California, but it won't happen in Arkansas. parsy.