Posted: Sunday, 19 March 2006 1:58PM
Serious Flaws Exist with CA Restraining Order Law
SANTA ANA (AP) -- Nearly one-third of all restraining orders issued in California aren't served and hundreds aren't entered into a state database because of delays and inconsistencies in the way the law is applied and enforced, according to a newspaper report.
Moreover, none of California's 58 counties enforce a law that requires those served with restraining orders to surrender their guns, The Orange County Register reported Sunday.
Nearly 5,000 orders issued last month didn't even include the mandatory firearms restriction, according to the paper, which published a two-part investigative series on the issue.
Eleven counties also require the person seeking the order to give advance notice to the person from whom they are seeking protection. That warning can be the final trigger point for an abusive spouse or lover, potentially leaving the person unprotected as the order is processed.
In other instances, orders that are supposed to be processed in one day can take several days because of contradictory and confusing rules or delays at the courthouse.
"There are good laws that have been on the books for many years that aren't being adequately enforced," said Attorney General Bill Lockyer, who assembled a task force to look into the problem. "It's life-threatening for victims."
Lori Jean Smith died while waiting for a restraining order to be processed, the Register said.
Smith applied for an order against her husband, Gary Wayne Smith, on Dec. 27, 2004, just days after she filed for divorce. Her husband's love, she felt, had turned to obsession. He refused to accept the divorce and began drinking heavily and threatening suicide, according to court records.
Smith made a simple mistake _ she filed her paperwork for the order at a courthouse in Temecula. Court officials put it on hold and forwarded it to the Riverside courthouse because Temecula usually handles traffic and small-claims cases.
That night, she was killed with a 12-gauge shotgun, police say. Her husband is now awaiting trial and has pleaded not guilty.
In California, those who are subjected to a restraining order are required to turn in any firearms to police within 24 hours _ but no one enforces it and the state has no formal procedure for doing so, the newspaper said.
Court officials and law enforcement say the problem comes because the law doesn't specify which agency is responsibly for checking for guns and confiscating them.
Judges often tell defendants to turn over weapons but have no way of checking to see if they have done so or find out if they're telling the truth when they say they have no weapons.
"I don't think the law specifies at all who's responsible," said Riverside County Presiding Judge Sharon Waters. "We view that as law enforcement's responsibility, but I don't know if they view that as their responsibility."
Lucy Nash believes that loophole cost her 14-year-old Evan Nash his life,
Just hours after she filed a restraining order against his father, William Hoffine, on her son's behalf, Hoffine shot his boy 14 times with a .45-caliber pistol, authorities said. After a 10-hour standoff, he committed suicide, the paper said.
"I sure as hell didn't know they were not going to take the guns," said Lucy Nash. "No one should have to go through this. There was no reason we had to."
The Register also found that nearly one-third of civil restraining orders aren't served _ and are therefore invalid.
Hundreds _ perhaps thousands _ more aren't entered into a state database. That means they're also invalid. If the order isn't in the database and the victim doesn't have a copy of it, police can't arrest a person for violating it.
In a report last summer, Lockyer found that 17 counties weren't properly entering restraining orders into the state database. The report prompted a state Assembly hearing to address the problems identified by the group.
In addition, California Supreme Court Chief Justice Ronald M. George convened a 15-member statewide task force to improve the handling of domestic violence cases. The work includes ways to improve court access for those seeking restraining orders and to ensure that orders are entered into the state database.
Eight months after Lockyer's report, however, concrete changes have been slow.
"It leads to a loss of any hope that the system is there to help them," Paul Seave, former director of the Attorney General's Crime and Prevention Center, said of victims.
Abusers could stop taking restraining orders seriously because of the problems, he warned.
"They'll think: She got an order, but the likelihood of the order being perfected and enforced is practically zero," Seave said.
You know what's complete bullshit is, restraining order or not, a person determined to do bodily harm will do so with or without one in force or delayed. KFWB is totally anti-gun and it shows.
In both these cases the restraining order hadn't even been in effect yet. Enforcing confiscation would've done NOTHING. KFWB is just using these incidents to write an anti-gun editorial to be passed off as news.