483
you are viewing a single comment's thread
view the rest of the comments
view the rest of the comments
this post was submitted on 07 Nov 2023
483 points (99.2% liked)
News
22907 readers
3879 users here now
Welcome to the News community!
Rules:
1. Be civil
Attack the argument, not the person. No racism/sexism/bigotry. Good faith argumentation only. This includes accusing another user of being a bot or paid actor. Trolling is uncivil and is grounds for removal and/or a community ban.
2. All posts should contain a source (url) that is as reliable and unbiased as possible and must only contain one link.
Obvious right or left wing sources will be removed at the mods discretion. We have an actively updated blocklist, which you can see here: https://lemmy.world/post/2246130 if you feel like any website is missing, contact the mods. Supporting links can be added in comments or posted seperately but not to the post body.
3. No bots, spam or self-promotion.
Only approved bots, which follow the guidelines for bots set by the instance, are allowed.
4. Post titles should be the same as the article used as source.
Posts which titles don’t match the source won’t be removed, but the autoMod will notify you, and if your title misrepresents the original article, the post will be deleted. If the site changed their headline, the bot might still contact you, just ignore it, we won’t delete your post.
5. Only recent news is allowed.
Posts must be news from the most recent 30 days.
6. All posts must be news articles.
No opinion pieces, Listicles, editorials or celebrity gossip is allowed. All posts will be judged on a case-by-case basis.
7. No duplicate posts.
If a source you used was already posted by someone else, the autoMod will leave a message. Please remove your post if the autoMod is correct. If the post that matches your post is very old, we refer you to rule 5.
8. Misinformation is prohibited.
Misinformation / propaganda is strictly prohibited. Any comment or post containing or linking to misinformation will be removed. If you feel that your post has been removed in error, credible sources must be provided.
9. No link shorteners.
The auto mod will contact you if a link shortener is detected, please delete your post if they are right.
10. Don't copy entire article in your post body
For copyright reasons, you are not allowed to copy an entire article into your post body. This is an instance wide rule, that is strictly enforced in this community.
founded 1 year ago
MODERATORS
You're wrong.
What do you think the legal test for this is? It's nothing more than someone claiming they are in fear.
Most jurisdictions will issue a restraining order solely on the claims of the filer. But if you want to save yourself some time verifying this, just look up state of California (biggest jurisdiction in the US). Word of the accuser is all it takes. Then go look up the state of California guide for bench judges which requires judges to also revoke gun ownership rights for anyone who is the subject of a restraining order.
The restraining order process can be (and regularly is) weaponized, without evidence, by people who just want to make life a living hell for their ex who pissed them off, with no repurcussions for false accusations.
Some people actually believe you shouldn't have your rights trounced without due process of a trial.
I'm an attorney who has represented clients seeking restraining orders and those opposing them. I assure you I'm not.
In my jurisdiction, a filer has to complete an affidavit and appear before a judge. At that point a temporary order can issue for no more than 10 days. That allows time for the Defendant to be served and appear for a two party hearing. After that the temporary order can be extended for up to one year, dissolved, or allowed to expire.
The Defendant will be heard within 10 days. I'm not sure how you'd better balance the competing interests. If an order isn't issued, someone could be seriously harmed or killed.
You're saying that judges are instructed to remove the guns of someone who is determined to be a reasonable threat to harm another or cause serious bodily harm? Fantastic!
How often do you imagine that restraining orders are weaponized, versus the number of times they're issued because of need? Not to mention that affidavits have to be sworn under the pains and penalties of perjury, that can include years in prison.
State population of California is roughly 39 million. State population of Florida is roughly 22 million. That alone covers 18% of the US population.
For California: see California Family Code, Chapter 2, Section 6250, Paragraph (A) here: https://studentaffairs.fresnostate.edu/survivoradvocate/documents/CA Victim Protection Statutes.pdf
Excerpt from the 'requirements' section:
For Florida: see 2023 Florida Statutes, Title XLIII (43) Domestic Relations, Chapter 741, Section 740.30. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0741/Sections/0741.30.html
Relevant excerpt describing the requirements and process:
In both states, all it takes is the unsubstantiated claim of the accuser on a sworn petition to 'claim they feel afraid'. Funny that you lead with "I'm an attorney" when the process doesn't even require an attorney in Florida. I'm not going to waste my time looking this up for each and every state, but I'll assert that Florida is not alone on the lack of requirement for an attorney to file the motion. I'll also assert that neither California nor Florida are alone in the fact that neither require any evidence beyond the say-so of the accuser claiming they feel threatened. But since you do claim to be an attorney, I invite you to read those state statutes, tell me I'm wrong, and assert that the process cannot be weaponized by the accuser just to make life a living hell for the accused. When was the last time you even heard of someone suffering any consequences at all for filing a falsified petition for restraining order? I'll bet never. I've witnessed several instances of this happing with zero consequences, not against me, but against friends and family) and even after being proven false later in an actual court proceeding, there were zero consequences for the falsified petition even when the financial and reputational damage caused to the accused was substantial.
If you really are an attorney, you must practice in a jurisdiction with stricter requirements. Lucky you. The topic we are discussing is a national issue, not a local-to-you one, so you must consider the reality that not all jurisdictions are like yours.
Yes, the terms used in those statutes are substantially similar to the terms used in my jurisdiction. I'm not sure what your point is?
What does substantiated mean to you? People are routinely convicted of crimes (beyond a reasonable doubt standard) on testimony and circumstantial evidence alone. Restraining orders are civil and only require a preponderance of the evidence standard.
Attorneys aren't required for any cases (except corporations outside of small claims). Family law, small claims, and restraining orders typically use a simplified structure to allow for easy access by the general public.
Regardless, the issuance of a restraining order still has elements that need to be met, and they need to be proven to a preponderance of the evidence.