Standard injunctions routinely imposed in family cases in Texas can make cause our clients to violate “The Brady Bill”, 18 U.S.C.A. § 922(g), which states:
“It shall be unlawful for any person-…
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; ..”
The mutual injunctions used in place in divorce cases in Texas include standard language prohibiting the use or threatened use of violence by one party to the divorce case against the other party. Therefore, it would appear that anyone subject to such an injunction in a divorce case is prohibited from possessing a firearm, even if no domestic violence has ever occurred or been threatened.
In U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), the husband, Dr. Emerson, appeared pro se at a temporary hearing in his divorce case. His wife, testified mostly on financial matters, but also testified about a threat by Dr. Emerson to kill Mrs. Emerson’s boyfriend. The divorce court issued standard temporary injunctions, including:
“2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.
4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.
5. Threatening Petitioner or a child of either party with imminent bodily injury.”
When the temporary orders were entered, Dr. Emerson owned a pistol, which he had purchased a year earlier. Dr. Emerson never got rid of the pistol and federal grand jury returned a five-count indictment against him. Four of the counts were eventually dismissed, but,”Count 1 . . . alleged that Emerson on November 16, 1998, unlawfully possessed ‘in and affecting interstate commerce’ a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g)(8).”
The district court ultimately dismissed Count 1 of the indictment on Second and Fifth Amendment grounds, and the government appealed.
The Fifth Circuit followed a literal reading of the statute, which states only that the Court must explicitly forbid the use of threats or violence against a spouse or minor child. The court refused to read into the statute a requirement that there be a finding of abuse or danger of abuse. The Court of Appeals reversed the trial court’s dismissal and remanded the case to the lower court for prosecution.
The Fifth’s Circuit interpretation of 18 U.S.C. § 922(g) makes clear that it a federal criminal offense to possess a firearm while under an injunction, issued after notice and hearing, which contains the standard violence/harassment language which is included in almost all of the mutual injunctions and temporary orders in divorce cases. Given that almost half the households in Texas contain at least one gun, this decision is one all family lawyers must bear in mind when drafting temporary orders.
Here is what Lynn Kamin wrote about the Emerson case in an article for the State Bar Paralegal Division:
First, it should be noted that the [Emerson] Court makes it clear that the law does not apply to an individual served with an ex parte temporary restraining order. The Emerson Court makes a point of clarifying that an August 28, 1998, temporary restraining order which was served on Dr. Emerson was “not the order alleged in the indictment, and in any event it is not within the terms of § 922(g)(8)(A) which requires that the order have been ‘issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.’ ” Id. at 211 & n2.
However, if injunctions are put in place as a result of a temporary hearing or after a temporary hearing occurs, the party possessing the firearm is in violation of the federal statute. It would appear that this would be the case even if the parties waive a hearing and enter into agreed mutual injunctions or agreed temporary orders which include the “magic words” regarding threats or violence. Moreover, there are no statutory exceptions included in 18 U.S.C. § 922(g), so it would appear that once the injunction is in place, the ban on possession is absolute, until further order of the Court.
This ruling places on the family law practitioner the duty to explain the ramifications of the boilerplate injunction language. While previously, mutual injunctions could generally be agreed to with a minimal amount of controversy, now the lawyer must clarify whether or not his client possesses any firearms before agreeing to any injunctions containing such language. Should the client own a gun, it will be necessary to eliminate the language from the injunctions which would trigger the applicability of 18 U.S.C. § 922(g).
In a scenario where your client owns a gun and the other side is insisting on including the injunctions against violence or threats in any injunctions, you have little choice but to seek a hearing, unless your client agrees to voluntarily relinquish his firearms during the pendancy of the suit. At the hearing, it will be critical for you to spell out specifically for the Court your concerns regarding the applicability of 18 U.S.C. § 922(g) and the reasons why your client’s right to keep his firearms should outweigh the other side’s equitable right to an injunction. Should the Court issue an injunction anyway, you should ask the Court to specifically order a date and place by which your client must turn over his weapons, and include language regarding his right to retrieve those weapons upon the expiration of the order. Furthermore, to avoid future complications, once the case is resolved, it may be worthwhile to request the Court to enter an order dissolving the temporary injunctions and specifically authorizing your client to re-gain possession of his weapons.
For clients whose occupations require that they be armed, such as law enforcement officers, avoiding having such an injunction imposed by the Court obviously takes on much greater significance. If your client has engaged in behavior that would appear to make him a clear and present danger to the other party or the child, your chances of avoiding the “magic words” from the Court would appear to be slim. If, however, your client’s behavior has not risen to such a level, the fact that the imposition of such an injunction would basically strip him of his livelihood should be enough to prevent the Court from making such a draconian ruling, so long as you make it clear to the Court what the consequences of such a ruling would be, in light of the Emerson decision. If the Court chooses to enter such an injunction anyway, it would appear that mandamus would be the most applicable remedy to pursue.