Ohio appellate court: Ban on firearms in restraining order may violate Second Amendment

Many civil protection orders, especially in domestic violence cases, ban the target from possessing guns. Courts generally uphold these as permissible restrictions, at least when the order is based on a finding that the target had committed a violent act or had threatened violence; see, e.g., U.S. v. Bena (8th Cir. 2011). But the matter is not entirely clear, especially since such orders can often be entered on just a finding of preponderance of the evidence, following relatively truncated procedures where the defendant doesn’t have a lawyer. (This makes them different from felony convictions or even violent misdemeanor convictions, which require proof beyond a reasonable doubt, and in which the defendant generally has been represented by a lawyer.)

Here’s an illustration of a possible right-to-bear-arms limit on such orders, from Cee v. Stone (Ohio Ct. App. Nov. 27, 2017):

On January 6, 2017, [Alexa] Cee filed a petition for an ex parte CPO [civil protection order], which was granted by the trial court. A full hearing on the petition was held on January 18, 2017. Following the hearing, the magistrate granted the CPO, which included restrictions on Stone’s right to possess a firearm and to consume alcohol. Stone filed objections to the magistrate’s decision, arguing that the magistrate erred in granting the CPO, erred in restricting his right to possess a firearm, and erred in restricting his consumption of alcohol. On April 13, 2017, the trial court overruled the objections regarding the granting of the CPO and the restrictions on the right to possess a firearm. However, the trial court granted the objection regarding the restriction on the consumption of alcohol and amended the CPO to reflect the change….

A petitioner for a domestic violence CPO must show by a preponderance of the evidence that the petitioner or the petitioner’s family members are in danger of domestic violence. “Domestic Violence” is defined in pertinent part as “the occurrence of one or more of the following acts against a family or household member: (a) Attempting to cause or recklessly causing bodily injury; (b) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of [R.C. 2903.211 or 2911.211, which ban ‘menacing by stalking’ and trespass with the purpose to cause or threaten physical harm.]” The statute defines a girlfriend, who is or has cohabitated with her boyfriend, as a “person living as a spouse” and thus, is a household member….

Cee testified that on multiple occasions, [Brett] Stone had caused physical injury to her. At the time of the injuries, she was residing with Stone. Cee testified that when she tried to leave Stone, he became angry and started throwing her things outside, so she went to Stone’s brother’s home. When Cee refused to come out and talk to Stone, he started striking her vehicle, denting it and breaking the windshield.

 

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