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Noel v. James – 2022 UT App 33 – civil stalking injunction

Noel v. James – 2022 UT App 33

THE UTAH COURT OF APPEALS

MICHAEL EARL NOEL,

Appellee,

v.

WILLIAM THOMAS JAMES,

Appellant.

Opinion

No. 20200565-CA

Filed March 10, 2022

Sixth District Court, Kanab Department

The Honorable Marvin D. Bagley

No. 190600053

William Thomas James, Appellant Pro Se

Frank D. Mylar, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES JILL M. POHLMAN and RYAN D. TENNEY concurred.

HAGEN, Judge:

¶1        To obtain a civil stalking injunction, a petitioner must establish by a preponderance of the evidence that the alleged stalker’s “course of conduct . . . would cause a reasonable person: (a) to fear for the person’s own safety or the safety of a third person; or (b) to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2021); see id. §§ 78B­7-102(21), -701(1), -701(5). In this case, the district court granted a stalking injunction against Appellant William James, but it made no finding as to whether James’s course of conduct would have caused a reasonable person in Appellee Michael Noel’s position to fear for his safety or suffer emotional distress. Because the basis for the injunction is not apparent in the record, we vacate the injunction and remand for additional proceedings consistent with this opinion.

BACKGROUND[1]

¶2        Noel sought a stalking injunction after he and James were kicked out of a Kanab City Council meeting. Noel is an experienced public official who previously served as a state legislator for sixteen years and now serves as the executive director of the Kane County Water Conservancy District. James is a member of a local conservancy group. Both had attended the meeting to give public comment on a controversial permitting issue.

¶3        Noel “got up and got in line” once the comment period opened. James then “got up from the corner” and joined Noel in line. As Noel later testified, “[James] came right at me in kind of a burly manner . . . requiring me to move over for him to get by in an intimidating way. . . . I’m not saying I was fearful, but he came at me and forced me” to move aside. “If I wouldn’t have moved, he would have banged into me.”

¶4        While waiting in line, Noel decided he wanted to be the last person to address the council. Accordingly, he left his place in line and moved to the back. James, however, “wanted to prevent [Noel] from having the last word on [him]”—so he, too, gave up his spot and moved to the back of the line. Noel eventually gave up waiting in line altogether. But when he turned to leave, James stood in his way “to stop [Noel] from getting behind” him once again. And so Noel and James “jockeyed” for a few moments, with Noel unable to get past James and James unwilling to let Noel through. Noel testified, I wanted him to get out of the way, and he was blocking me, and it did anger me to do that. But I was also wondering if there was going to be a confrontation here. I was actually fearful that he might, you know, . . . take a shot at me.

¶5        Noel called James “a worthless piece of garbage.” James, in turn, shouted to the audience, relaying what Noel had just called him. At this point, law enforcement intervened and asked both men to leave the meeting. Noel went home, and James was arrested after he refused to comply. At the encouragement of the chief of police, Noel later petitioned for a civil stalking injunction against James.

¶6        The district court held a full-day evidentiary hearing on the petition. At the hearing, James sought to admit videos of both the city council meeting and a chamber of commerce meeting earlier that day through a witness who had attended both meetings. The videos had not been previously disclosed.

¶7        When the issue first arose, the court and counsel for both parties were under the impression that there were only two videos—one of the chamber of commerce meeting recorded by the witness herself and one of the city council meeting recorded by a videographer hired by the conservancy group. Noel stipulated to the admission of the first video, but he objected to the second video because the videographer was not present to lay foundation. Specifically, Noel’s counsel explained, “If there’s a woman here [who] says she videoed this on her camera, and it accurately depicts what she videoed on her camera, and she was there at the meeting, and she’s subject to cross-examination, and she made the video, I think that that’s proper. But the other one I don’t.”

¶8        But when the witness was called to testify, she explained that there were actually three videos: one video from each of the two meetings that she recorded with her personal cell phone, and a third video from the city council meeting recorded by the videographer. At that point, Noel’s counsel objected to the admission of all three videos because they had not been disclosed and he was “surprised” that they were being offered as evidence. James’s counsel did not dispute that the videos had not been disclosed in advance but claimed that, when the matter was discussed earlier, Noel “had stipulated to anything that [the witness] had personally recorded.” In response, Noel’s counsel argued that he had merely stipulated to the chamber of commerce video: “That’s all we were discussing at the time.” The court agreed with Noel’s counsel that the stipulation was limited to the chamber of commerce video. And because Noel “didn’t make the objection before about not having [the chamber of commerce video] in advance,” the court held him to that stipulation. The court received the chamber of commerce video into evidence per the stipulation, but excluded the other two based on the objection.

¶9        At the conclusion of the hearing, the district court determined that James had engaged in a course of conduct directed at Noel, as required under the civil stalking statute. The court found that the course of conduct consisted of two component acts, each committed at the city council meeting: (1) when James approached Noel “in a kind of burly manner,” and (2) when James “blocked [Noel] from going back to his seat.” The court did not make an express finding that James’s conduct would cause a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Nonetheless, the court granted the requested stalking injunction.

ISSUES AND STANDARDS OF REVIEW

¶10 James now appeals, contending that the district court erred in imposing a civil stalking injunction against him.[2] James primarily argues that his course of conduct would not have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Although the question of whether “a reasonable person would suffer fear or emotional distress” under the circumstances “is a question of fact that we review for clear error, we review the district court’s interpretation [and application] of the underlying legal standard for correctness.” Ragsdale v. Fishler, 2021 UT 29, ¶ 16, 491 P.3d 835; see also Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (“The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusion.” (cleaned up)).

¶11 James also challenges the district court’s decision to exclude video evidence of the city council meeting. Specifically, he contends that the “videos met the [parties’] stipulation for new video evidence” and that, therefore, the district court erred by excluding them. “The scope of a stipulation presents a question of fact, which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (cleaned up).

ANALYSIS

I. Civil Stalking Injunction

¶12 To obtain a civil stalking injunction, the petitioner “must prove by a preponderance of the evidence that ‘an offense of stalking has occurred.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (quoting Utah Code Ann. § 77-3a-101(7) (LexisNexis 2017)).[3] “The crime of stalking consists of two elements. First, a person must ‘intentionally or knowingly engage in a course of conduct directed at a specific person.’” Id. (cleaned up) (quoting Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2017)). By statute, a “‘[c]ourse of conduct’ means two or more acts directed at or toward a specific person.” Utah Code Ann. § 76-5-106.5(1)(a) (LexisNexis Supp. 2021) (listing several examples of qualifying acts). Second, the respondent “must ‘know or should know that the course of conduct would cause a reasonable person’ to ‘fear for the person’s own safety’ or ‘suffer other emotional distress.’” Ragsdale, 2021 UT 29, ¶ 25 (quoting Utah Code Ann. § 76-5­106.5(2)). A “reasonable person” is statutorily defined as “a reasonable person in the victim’s circumstances.” § 76-5­106.5(1)(d).

¶13      Although the district court recited both elements, it made findings on the first element only. It identified an intentional course of conduct consisting of two acts: approaching Noel in a “burly manner” and later blocking Noel from returning to his seat. But the court did not make a factual finding on the second element, that is, whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. “When confronted with questions of fact, this court will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” See Baird v. Baird, 2014 UT 08, ¶ 29, 322 P.3d 728 (cleaned up). Otherwise, “remand is appropriate” to allow the district court to make that determination. See id.

¶14      Noel acknowledges that the district court never addressed the second element on the record, but he argues that James failed to preserve the issue for appeal. We disagree. To issue a stalking injunction, “the district court necessarily had to consider whether [Noel] had established each element of a stalking offense.” See id. ¶ 20. Thus, the court had an opportunity to rule on whether the statutory elements were met, and that issue is “adequately preserved” for appeal. See id. In any event, James specifically argued to the court that “[t]his [was] not a situation where a reasonable person . . . in [Noel’s] position” would have been “afraid of physical harm or . . . in emotional distress.” And he moved “essentially for a directed verdict” on that basis. Therefore, we are confident that James presented this issue “to the district court in such a way that the court ha[d] an opportunity to rule on it.” See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).

¶15      Alternatively, Noel contends that we can affirm on appeal because the district court “had evidence to determine that James acted in a threatening manner that would have made a reasonable person fearful or suffer some emotional distress over the two encounters.” When the district court does “not explicitly make a necessary finding,” we may still affirm “if the evidence and statements contained in the record make the evidentiary basis for this finding sufficiently clear.” See Sheeran v. Thomas, 2014 UT App 285, ¶ 8, 340 P.3d 79 (cleaned up); see also State v. Bingham, 2015 UT App 103, ¶¶ 28–29, 348 P.3d 730 (explaining that a reviewing court may “assume that the [district] court found the facts in accord with its decision,” unless “the ambiguity of the facts makes this assumption unreasonable” (cleaned up)). But here, the evidentiary basis for finding that Noel satisfied the second element is not sufficiently clear from this record.

¶16 To determine whether the petitioner has met the second element required for a civil stalking injunction, we apply “an individualized objective standard.” Baird, 2014 UT 08, ¶ 26. Under this standard, the “subjective effect of the respondent’s conduct on the petitioner is irrelevant.” Ragsdale, 2021 UT 29, ¶ 45. Instead, the relevant question is whether the conduct would have caused fear or emotional distress to “a reasonable person in the petitioner’s circumstances.” Id. (quoting Baird, 2014 UT 08, ¶ 25). “In applying this standard, courts must consider the entire context surrounding a respondent’s conduct” and “must consider the conduct cumulatively, accounting for the facts and circumstances of the individual case.” Id. (cleaned up).

¶17      Our supreme court has suggested a non-exhaustive list of factors that may be relevant to this assessment. Those factors include “the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking and its proximity to the victim’s children, if any, and the cumulative effect of defendant’s repetitive conduct.” Baird, 2014 UT 08, ¶ 27 (cleaned up). “Furthermore, under an individualized objective standard, a court may consider whether the defendant had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim’s vulnerability.” Id. (cleaned up).

¶18 Under this standard, it is far from obvious that a reasonable person in Noel’s circumstances would have feared for his safety or suffered emotional distress, given the context in which James’s conduct took place. See Utah Code Ann. § 76-5-106.5(2)(a)–(b) (LexisNexis Supp. 2021). The encounter occurred in a public place—a city council meeting—and in full view of a room packed with witnesses. Law enforcement officers were stationed at the meeting and ready to intervene. And Noel is an experienced public official accustomed to dealing with members of the public. See Baird, 2014 UT 08, ¶ 27 (indicating that the individualized objective standard considers “the victim’s background”). Although Noel testified that James was “a loose cannon” and “a different guy than [Noel had] dealt with in [his] years of public service,” the district court made no finding that a reasonable person in Noel’s circumstances would have found James particularly threatening. And even though James was ultimately arrested, his arrest was based not on his conduct toward Noel, but on his refusal to comply when law enforcement ordered both men to leave the meeting.

¶19 Noel argues that a reasonable person would fear for his safety under these circumstances. He suggests that the district court’s finding that James approached in a burly manner “could mean that James was acting tough or flexing his muscles or puffing his chest in a manner that would suggest physical aggression.” Perhaps it could, but we have no findings to that effect. Nor do we have a finding that such a display would cause a reasonable person to fear for his safety in the context in which it occurred—a well-attended, public meeting, with law enforcement officers standing by.

¶20 Noel also argues that the evidence supported a finding that James’s conduct would have caused “some emotional distress,” but that is not the standard. The stalking statute defines “emotional distress” as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” See Utah Code Ann. § 76-5-106.5(1)(b) (emphasis added). Noel has pointed to no evidence in the record that would have clearly supported a finding that James knew or should have known that his course of conduct would cause a reasonable person in Noel’s circumstances to suffer “emotional distress,” as defined by statute.

¶21      If the district court applied the correct legal standard and implicitly found the second element satisfied, the evidentiary basis for that ruling is not clear on this record. Although the interaction that occurred at the city council meeting was certainly uncivil, it is not the type of conduct that would ordinarily cause a reasonable person to fear for his physical safety or experience “significant mental or psychological suffering”—at least not without other contextual facts not apparent from the record. See id.

¶22 Having heard the evidence firsthand, the district court is in an advantaged position to make factual findings as to whether Noel has proved the second element by a preponderance of the evidence. We ordinarily rely on the district court to make those kinds of assessments, because it has “personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties.” Baird, 2014 UT 08, ¶ 30. “This is particularly true in a case like this one where the record consists almost entirely of evidence presented at an evidentiary hearing.” See id. Therefore, we vacate the injunction and remand for the district court to determine whether Noel has proved the second element under the legal standard explained in this opinion.

II. Scope of the Stipulation

¶23 Because we are remanding for further findings, we must also reach the question of whether the district court properly excluded video of the interaction between James and Noel at the city council meeting. James argues on appeal that the district court abused its discretion by excluding both videos of the city council meeting, because Noel had stipulated to the admission of late-disclosed videos so long as James laid sufficient foundation by calling the person who recorded each one.

¶24 But in excluding the videos of the city council meeting, the district court found that the parties’ stipulation was limited to the chamber of commerce video. James’s counsel asserted that Noel “had stipulated to anything that [the witness] had personally recorded,” but Noel’s counsel pointed out that, at the time of the stipulation, he was unaware of the existence of the third video and that the only thing counsel had discussed was the chamber of commerce video. The court agreed with Noel’s counsel, saying, “That’s the way I understood the stipulation.”

¶25 The district court’s finding that the stipulation was limited to the chamber of commerce video was not clearly erroneous. At the time of the stipulation, the parties were discussing only two videos. Noel stipulated to the admission of the chamber of commerce video taken by the witness and objected to the admission of the city council video taken by the videographer based on lack of foundation. His stipulation to the chamber of commerce video cannot fairly be read as a stipulation to a third video that he did not know existed.

¶26 James has not argued that the videos were timely disclosed, that the disclosure violation could be excused for good cause, or that the failure to disclose was harmless. See Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”). Therefore, he has not established any basis on which to reverse the district court’s exclusion of the city council videos.

CONCLUSION

¶27 James has not established that the district court erred in excluding the late-disclosed videos of the city council meeting, but he has established that the injunction was entered without the necessary findings. Specifically, the district court made no express finding as to whether James knew or should have known that his course of conduct would have caused a reasonable person in Noel’s circumstances to fear for his safety or suffer emotional distress. Because the record does not provide a clear evidentiary basis for the court’s decision, we vacate the stalking injunction against James and remand for additional proceedings consistent with this opinion.


[1] “On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court’s findings.” Sheeran v. Thomas, 2014 UT App 285, ¶ 2 n.1, 340 P.3d 797.

[2] James, a non-attorney, represents himself in this appeal. We hold him “to the same standard of knowledge and practice as any qualified member of the bar,” but accord him “every consideration that may reasonably be indulged.” See State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (cleaned up).

[3] Although the 2018 amendment of the civil stalking statute governs this case, we cite the most recent version of the civil stalking statute for convenience—unless a prior version is quoted by a different source. Regardless of the version quoted throughout this opinion, the statutory language at issue is the same.


Utah Family Law, LC | divorceutah.com | 801-466-9277

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What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?

What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?

Here’s what I would do:

First, remember that merely claiming that the proposed visitation supervisor poses a clear and serious danger to the child’s mental or emotional health without having proof or some highly credible evidence does not simply make for a weak argument, it could call your credibility into question.

  • I would first ask: if you have proof or highly credible evidence that there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s life, safety, or health.
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the life, safety, or health of the other parent or of anyone else?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask: if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s mental or emotional health?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there is anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the mental or emotional health of the other parent or of anyone else?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there is anything about the proposed supervisor that indicates he/she is not available to provide supervision as needed and/or cannot provide supervision responsibly and reliably.
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would likely see no point to objecting to the proposed supervisor because I would have no valid argument against the appointment of this supervisor.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-would-you-do-if-your-childs-father-who-is-only-entitled-to-supervised-visitation-filed-for-a-modification-of-a-court-order-so-a-family-member-you-dont-approve-of-could-supervise-visits/answer/Eric-Johnson-311

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When did you know that divorce was the option you were going to choose?

When did you know that divorce was the option you were going to choose?

First, make sure that if you reach the conclusion that you need a divorce that you really do need a divorce. Clearly, a marriage that, through no fault of your own, threatens your life, health, or safety is a marriage you don’t have wonder is worth staying in another moment. But in every other situation, divorce is not a decision to take lightly.

Some people think they need a divorce when they do not. They mistakenly believe that a divorce will be the solution to problems that the marriage is not causing or a solution to problems the marriage is causing when there are better solutions than divorce (many people have told me after their divorce that they wish they had not taken such drastic measures and had tried harder to save their marriage because they realized that 1) the marriage was worth saving and they didn’t “know what they got till It’s gone” and/or 2) divorce only made matters worse).

Even if you do not believe that individual counseling or therapy and/or marriage and family therapy will work for you and your spouse (or your whole family, if that’s a concern), you do not want to live with the regrets that come from wondering “what might have been”. Start reading the scriptures and going to church. Seek wisdom, guidance, and help beyond your own abilities (even if you think it’s a stupid idea, try it before you reject it out of hand). Before taking the drastic, painful, scarring, costly, and permanent step of divorce, try to find out whether the problem(s) in your marriage and family lie(s) with something than your spouse. Try to find out if the problem(s) can and should be solved without divorce. If, after taking these steps, you honestly conclude that your marriage cannot be salvaged, that is when you can and should file for divorce confident in your choice.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/When-did-you-know-that-divorce-was-the-option-you-were-going-to-choose/answer/Eric-Johnson-311?prompt_topic_bio=1

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To whom do you turn to when the police won’t protect you from your ex?

I am a domestic relations attorney. With this in mind, and if you are convinced that you don’t have enough evidence to obtain a restraining order, my answer to your question is:

You move.

Easier said than done, I know, but it’s still easier (and less discouraging, futile, and frustrating) than trying to force law enforcement officers to help you.

Even if you obtained a court order (ooooooh, a court order!) that “compelled” law enforcement officers to help you, chances are that the court would not enforce the order, if the law enforcement officers to whom it is directed refuse to help you.* Then factor in the time and effort (and money, if you hire an attorney to help you obtain the order) that goes in to seeking such an order, and it makes more sense to invest that time, effort, and money into doing something that works, something that has a much higher potential for success (if by “success” you mean getting away from your stalker/harasser/tormentor to safety and peace).

*Of course, this kind of law enforcement officer is too smart to blatantly refuse to help you. Instead, you’ll get the bureaucratic/administrative run around and the cops will play dumb (“this is a civil matter, ma’am”), so that they maintain plausible deniability. If that doesn’t work, they’ll threaten to arrest you (“disorderly conduct” and “disturbing the peace” are popular threats, as is “false report”) if you try to insist upon them enforcing your order.

Frequently, the best course of action is not to seek vindication through the legal system, but to extricate yourself from it. No, I am clearly not urging to violate the law, I am showing you that the legal system often disappoints. So if you can help yourself better than the legal system can help you (without being an outlaw, of course), then help yourself.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Who-do-you-turn-to-when-the-police-wont-protect-you-from-your-ex-I-dont-have-enough-evidence-for-a-restraining-order-and-he-is-threatening-me-all-the-time-I-feel-like-all-I-can-do-is-move-house-Do-you-have-any/answer/Eric-Johnson-311

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Can you get a restraining order against a minor if you’re an adult?

Certainly.

Restraining orders are for the protection of the person needing the protection, and if a child is a threat to your life or safety and you can prove that to the satisfaction of the court, you can get a restraining order against that child.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-you-get-a-restraining-order-against-a-minor-when-youre-of-age-yourself/answer/Eric-Johnson-311

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What is the safest way to break up with an abusive partner?

What is the safest way to break up with an abusive partner? I heard many horror stories and afraid I might be next.

While there is no one “proper” way to break up with an What is the safest way to break up with an abusive partner,

Robert McQueeney’s answer on this thread is a good one:

The safest way? When the opportunity presents itself, never put material belongings over your life. Just leave. Don’t waste time packing everything, just take what you need and go, immediately. Grab any important papers, of course.

Ghost your way out of there. Change jobs, change locations, shucks, change states if you have to. Change your phone, ghost your way out of any social media.

Don’t say anything to him, get real devious with your life, it may well depend on it. Don’t try to get any satisfaction of telling your partner to their face that you are out of there. Just leave and do it quickly and expediently.

Furthermore, I’d add two things:

  1. Don’t expect the legal system to be much, if any, help to you in the process. The legal system was not designed to help you in this situation as well and as fast as you can help yourself. Don’t try to vindicate yourself through the legal system. Work out your problems without involving the legal system any more than you must. It’s slow, expensive, and not consistently fair. Don’t break the law, but don’t expect the legal system to help you. Help yourself.
  2. Be prepared to pay the costs associated with breaking free. You may have to leave personal property behind because it may prove too hard to slip away with the stuff that’s rightfully yours. If you have to change your job and residence, you may take a hit on your pay and end up in crappier lodgings as you re-build. Understand that this is for most the cost of freedom and peace of mind—and that’s worth the cost.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-is-the-safest-way-to-break-up-with-an-abusive-partner-I-heard-many-horror-stories-and-afraid-I-might-be-next

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“No guns in the house until child is 18” order reversed

Family court to father: No guns in the house until child is 18

Washington Post

By Eugene Volokh March 17, 2015

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/17/family-court-to-father-no-guns-in-the-house-until-child-is-18/?utm_term=.ef6b700d1996

But last week’s In re Parentage of M.A.R.R. (Ill. Ct. App. Mar. 11, 2015) reversed the order. Here’s a quick summary:

  1. Andrea and Kurt were never married, but they have a now-2-year-old daughter, M.A.R.R. After the parents split up, the trial court eventually gave custody of M.A.R.R. to Kurt.
  2. But Kurt had a gun collection — four pistols, one shotgun, and six rifles. “The guns are kept in a safe in his bedroom, and the door to his bedroom has a key pad access code on it. He keeps his bedroom door locked when the children are around.”

With regard to Kurt’s gun collection, in its letter opinion the trial court noted that Kurt, Andrea and both of Andrea’s parents testified that guns were kept in a locked safe in a closet and behind a locked door to Kurt’s bedroom. Although Andrea’s father testified that he once saw a gun in the garage, the court found that he had no specific information about this incident and no one else corroborated it.

However, then the court found that it did “not wish to minimize the concern it has for the child’s safety, and finds that it is not in the best interests of a child to have multiple guns and ammunition in a home.” In the judgment order, the court ordered Kurt to remove all guns and ammunition from his home within 24 hours and ordered that guns were not permitted back into the home at any time until the child has attained the age of 18.

  1. Kurt appealed, arguing, in relevant part, that the no-guns order was unjustified and violated the Second Amendment. Andrea appealed, arguing in part that one of the custody factors, “the mental and physical health of all individuals involved, favors her because while there was no expert testimony of Kurt’s mental health, [his gun collection, among other things,] indicates that he has mental health issues and is a risk to M.A.R.R. We are not persuaded.”
  2. The court quickly rejected this argument of Andrea’s, holding that “the fact that he legally collected guns has no bearing on his mental health status.” And it accepted Kurt’s argument that he shouldn’t have been ordered not to possess guns. (Note that the order, in context, seemed to have been a condition of getting custody — if he chose to keep the guns, then presumably the trial court would have given custody to Andrea.)

Kurt’s last argument is that the trial court erred when it ordered him to remove all guns and ammunition from his home within 24 hours and prohibited him from having guns brought back into his home until M.A.R.R. had attained the age of 18. In support of his contention, he claims: (1) there is no evidence in the record to justify this order; and (2) the order violates his Second Amendment right to bear arms.

We need not address Kurt’s constitutional issue because, based upon the evidence presented at trial, we hold that the trial court erred by inserting this clause into the judgment order. See Mulay v. Mulay, 225 Ill. 2d 601, 607 (2007) (as a general rule, courts will address constitutional issues only as a last resort, relying whenever possible on nonconstitutional grounds to decide cases).

In its letter opinion, the trial court noted that extensive testimony was given regarding Kurt’s collection of guns. It acknowledged that Kurt, Andrea, and both of Andrea’s parents testified that the guns were kept in a locked safe in a closet located behind a locked door to Kurt’s bedroom. Although the court noted that Andrea’s father testified that he thought he once saw a gun in the garage, it also said that the father had no specific information about the gun, and that no one else at trial corroborated that incident. Nevertheless, the court went on to find that it was not in the child’s best interests to have multiple guns and ammunition in a home.

Based upon the evidence presented at trial, as well as the trial court’s own specific findings, it was not reasonable for the court to place such a restriction on Kurt’s lawful possession of ammunition or guns without any evidence of danger to the child. Accordingly, we reverse the trial court’s ruling on this issue …

 

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and an intensive editing workshop at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.


Utah Family Law, LC | divorceutah.com | 801-466-9277

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