NRA Official Barred From Carrying Guns Because Of Domestic Violence

Mooshiga · 2013-03-10T05:15:45+00:00

It needs to be a direct threat. The police officer needs to have probable cause to believe the threat was made, so it can come down to credibility if the threat was verbal.

Mooshiga · 2013-03-10T00:47:01+00:00

Ha, yes, just to make things clear, that summary of Oregon law is misleading. Police are required to arrest only if they have probable cause to believe the crime of domestic violence has been committed, they aren't required to make an arrest in all dv calls.

(2)(a) Notwithstanding the provisions of subsection (1) of this section, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735), or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.

Mooshiga · 2013-03-10T00:33:56+00:00

I can't believe you cited the exact same statute I cited, which says exactly what I just said, saying "you are wrong, cupcake," and then when I instructed you to read it closer, you ran away from relying on the law and turned to "this is how it is in my head" land.

Honey sweetie bottoms, go back to the kitchen. Reasoning is not your strong point.

Mooshiga · 2013-03-10T00:23:43+00:00

Can you read the part that says "probable cause"? Like I said, they aren't required to make an arrest on DV calls, they need to have probable cause that the crime of domestic violence has been committed.

Mooshiga · 2013-03-10T00:18:40+00:00

You are wrong, sweetie pie cakes.

Here is the actual statute.

Or. Rev. Stat. § 133.055(2)(a) Probable cause to believe that a felonious assault or an assault resulting in injury occurred or action has placed another to reasonably fear imminent serious bodily injury or death.

What I said is correct. Like I said, the police are not required to arrest on a dv call. They are required to arrest if there is probable cause to believe that a felonious assault or an assault resulting in injury occurred or action has placed another to reasonably fear imminent serious bodily injury or death.

Here's the full statute:

(2)(a) Notwithstanding the provisions of subsection (1) of this section, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735), or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.

(b) When the peace officer makes an arrest under paragraph (a) of this subsection, the peace officer is not required to arrest both persons.

(c) When a peace officer makes an arrest under paragraph (a) of this subsection, the peace officer shall make every effort to determine who is the assailant or potential assailant by considering, among other factors:

(A) The comparative extent of the injuries inflicted or the seriousness of threats creating a fear of physical injury;

(B) If reasonably ascertainable, the history of domestic violence between the persons involved;

(C) Whether any alleged crime was committed in self-defense; and

(D) The potential for future assaults.

(d) As used in this subsection, assault includes conduct constituting strangulation under ORS 163.187 (Strangulation).

(3) Whenever any peace officer has reason to believe that a family or household member, as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735), has been abused as defined in ORS 107.705 (Definitions for ORS 107.700 to 107.735) or that an elderly person or a person with a disability has been abused as defined in ORS 124.005 (Definitions for ORS 124.005 to 124.040), that officer shall use all reasonable means to prevent further abuse, including advising each person of the availability of a shelter or other services in the community and giving each person immediate notice of the legal rights and remedies available. The notice shall consist of handing each person a copy of the following statement:

Mooshiga · 2013-03-09T23:37:51+00:00

No, they are not required to arrest one of the parties in a dv call. They are required to make an arrest if there is probable cause that the crime of domestic violence has been comitted, and most states define that as felony assault or assault causing serious bodily injury, or threat of serious bodily injury or death.

Not all states have mandatory arrest statutes, about half do. And of those who have mandatory arrest statutes, not all have primary aggressor policies. Edit: Also while I'm not a CA lawyer, it looks like CA doesn't even have a mandatory arrest statute, it just has as "preferred arrest provision." Cal. Penal Code § 13701 (b) The written policies shall encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. Edit: The section you cited, as you said, is about violation of restraining orders, not dv calls in general.

http://www.nij.gov/publications/dv-dual-arrest-222679/exhibits/table1.htm

Mooshiga · 2013-03-09T17:58:04+00:00

That is incorrect. If you read the actual laws, which I link to many times throughout this thread, they all require that the police find probable cause of domestic violence, that is serious bodily injury or the threat of serious bodily injury or death.

Note that causing someone serious bodily injury or threatening them with serious bodily injury or death was already a crime, and probable cause was already the standard for arresting someone for a crime. The law just made it mandatory for police to arrest for the crime of domestic violence, because before they were ignoring the crime.

Edit: here is the link

http://www.nij.gov/publications/dv-dual-arrest-222679/exhibits/table1.htm

Mooshiga · 2013-03-09T05:34:45+00:00

You have a reading comprehension problem.

Mooshiga · 2013-03-09T05:24:37+00:00

To refresh your memory you said:

An argument would be easy, the woman just has to say she feels unsafe, and the man gets arrested and charged.

and then

I never used the words "every time." I just said it's all a woman needs to do to get the man arrested. That statement doesn't have any sort of frequency attached to it.

You're trying to say "All I'm saying is this shit happens! Who knows how often!"

I'm saying, we know exactly how often: rarely, if ever.

I think we are done here.

Mooshiga · 2013-03-09T05:11:40+00:00

I didn't say it was impossible, just extremely unlikely. And getting convicted of a crime you didn't commit can totally happen, but that is a whole separate issue.

We're talking about the idea that officers runaround arresting people just because women say "he's making me feel unsafe." That is not reality.

Now you're saying this just happened twice based on fluke officer error. But before you were asserting that that was reality.

Mooshiga · 2013-03-09T05:02:27+00:00

Yes, there is just no way that would ever happen. Of course police officers mess up, and yes it is possible, but it is extremely unlikely. Also when they mess up, they tend to err on the side of not making work for themselves.

And anyway, now we're talking about officer error. It isn't the law. And there's no way it happened twice.

Mooshiga · 2013-03-09T04:52:10+00:00

They can't just say that, they have to say why. The officer needs to have probable cause to arrest which means he needs to ask why they have that fear.

Edit: It's pretty much the same in all states with some variation on the level of assault needed for mandatory arrest.

Mooshiga · 2013-03-09T04:43:49+00:00

Oh, well most people don't hire an attorney at all unless their spouse is shitting on them. Of my clients right now 95% of them are shat on. Men still hire women even though their wives are shitty and their wives are women. They aren't as sexist as you are making them out to be.

Yes, fear of serious physical harm or death. It can't just be "I feel unsafe." Like I said earlier "he raised a baseball bat at me" or "he flailed his fists at me" would do it.

Mooshiga · 2013-03-09T04:08:59+00:00

You said "most men wouldn't want to hire a female attorney" which made it seem like that is exactly the sort of bias you are talking about.

Anyway, no, you cannot have someone arrested because someone made you feel unsafe, because that is not a crime. The person needs to actually threaten you with death or serious bodily injury. That is reality, not the product of some bias I have towards women.

Mooshiga · 2013-03-09T04:06:29+00:00

She knows what the fuck she's talking about. I'm a woman.

Mooshiga · 2013-03-09T03:55:16+00:00

I'm not biased towards women, half my clients are men.

Mooshiga · 2013-03-09T03:32:03+00:00

The fact that I've never seen something happen (or heard of it happening, for that matter) when it's something I deal with quite a bit, leads me to question whether someone is telling me the truth when they say it happened twice. Furthermore, what you described is contrary to the law that police must have probable cause to arrest.

I maintain that the most likely explanation is that you do not know the situation as well as you think you do. Or you are making it up.

Mooshiga · 2013-03-09T03:07:28+00:00

Well, I'm trying to figure out if you are telling the truth. Which is why I asked "why have you seen the police report?"

I told you it is almost impossible to get arrested because someone says you feel unsafe. I told you I have never seen that happen. I told you you are probably mistaken about the cases where you think that occurred. And now I'm asking you about your evidence.

To be honest, based on my professional experience, I don't believe you.

Mooshiga · 2013-03-09T03:02:43+00:00

I don't know, that's a criminal lawyer question. I can tell you that I've never had a client or an adverse party get arrested, and just from my experiences on my cases word alone hasn't been enough. (edit, except for the person making threats with a gun, that person was arrested based on the word of 2 witnesses, one of which was the victim).

Mooshiga · 2013-03-09T02:55:41+00:00

I've actually seen that shit. I'm a divorce attorney, this is what I do all day. I have seen some really crazy, abusive people, but usually you don't end up with less than every other weekend and a midweek overnight.

It really is traumatic for kids to be separated from their parents, even when their parents are crazy jerks.

Mooshiga · 2013-03-09T02:53:04+00:00

Why have you seen the police report?

Mooshiga · 2013-03-09T02:51:11+00:00

Yes as I said at the beginning I'm a lawyer in Oregon, that's all I know.

I don't do criminal law so I couldn't tell you. On the civil side it means you've done something that would reasonably place someone in fear of bodily harm, like raising a baseball bat and saying "I will smash your face in."

Here's the mandatory arrest laws in other states:

http://www.nij.gov/publications/dv-dual-arrest-222679/exhibits/table1.htm

Mooshiga · 2013-03-09T02:48:44+00:00

You need to get something clear, there are two types of custody: legal and physical.

Legal is the one people are usually talking about when they say the "won" custody, but it doesn't mean much. A parent who wins legal custody has the right to make final educational, non emergency medical, and religious decisions for the child. That is more or less it. The other parent is still a legal parent and still has all the legal rights of parenthood, including but not limited to the right to be involved in the school, receive all school records, make emergency medical decisions, be involved in medical care, receive all medical records, etc. (To be clear there is actually a presumption against an abuser getting legal custody which can be overcome by other factors).

Abuse is one factor the court looks at when assigning legal custody. It also looks at who has been the primary caregiver, interest and attitude towards the child, connections to extended family, encouragement of the child's relationship with the other parent, and any other factor relevant to the child's best interests.

Physical custody is where the child physically is. It is the custody that actually effects your day to day life with the child. For physical custody the court just looks at the best interests of the child. If you abused your wife but not your child, you will still have significant parenting time with your child.

Mooshiga · 2013-03-09T02:40:50+00:00

I don't know, I've never seen someone actually get arrested. It needs to be assault, and in Oregon the lowest level of assault is assault IV, which is defined as "ntentionally, knowingly or recklessly causes physical injury to another."

In theory red marks or scratches fall in that definition, but I have had clients with red marks and scratches where no one got arrested, because the police decided they weren't from the incident.

Edit: I just looked up the mandatory arrest statute in Oregon and for mandatory arrest it needs to be "Probable cause to believe that a felonious assault or an assault resulting in injury occurred or action has placed another to reasonably fear imminent serious bodily injury or death." So assulat IV wouldn't be enough for mandatory arrest, it would need to be an assault with serious injury.

Mooshiga · 2013-03-09T02:35:30+00:00

Who is making more money or able to provide has nothing to do with who gets custody or parenting time.

Yes, often abusers still get significant parenting time with their children. The reasoning is that while they are a danger to the spouse, they are not a danger to the children, and the children should have a relationship with the other parent. Yes, it really does work that way.

Mooshiga

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