Courts Struggle With Gun Seizure Process In Domestic Abuse Cases

States across the political spectrum have turned recently to a new kind of gun control measure, known as red flag laws or extreme risk protection orders. They allow for the seizure of guns from potentially dangerous people.

There are red flag bills in committee in the Ohio House and Senate right now.

But in domestic violence cases, protection orders already allow for the seizure of guns. The hard part is enforcing the order. 

“We’re talking about making our community safer and one of the ways we do it is make sure people who are much more dangerous when they have guns don’t have access to them,” said Darren Mitchell, a legal expert on domestic violence and firearms, during a recent Cleveland Metropolitan Bar Association forum.

“But really the critical piece, and I know you talked about it earlier and someone brought it up earlier when they talked about their challenges, is that followup,” said Mitchell during his presentation on the legal options for seizing guns from domestic abusers. “Great, you’ve entered a surrender order, but what happens next?” 

The law already allows for gun seizures in certain cases. But there’s not a clear process in Cuyahoga County for where the guns go, who stores them or what happens if the accused or convicted domestic abuser doesn’t comply.

These are the problems facing Diane Palos, the domestic relations judge at Cuyahoga County Common Pleas court, where about 850 people come each year for a protection order.

According to Palos, there’s a significant number of cases that go through her court where the accuser is sure there’s a gun, but it’s never seized.

“For example, when they serve somebody they don't go in the house,” said Palos. “So unless somebody voluntarily turns it in, it’s not going to happen. Then it’s, ‘Well, I gave it to my brother.’”

And, according to Cleveland Municipal Court Judge Michelle Earley, there’s also a constitutional problem.

“You know, I can say to you - you can’t have one,” said Earley. “I’m then saying you have to turn it over. I don’t even know if you have one. And if I ask that question, you have a constitutional right not to respond. So then it's almost like that provision means nothing.” 

Judge Earley told the story of one defendant in a domestic violence case who denied having a gun.

“And then there was a video that was produced that showed the defendant with a gun wearing the same exact clothing that he was arrested in,” said Earley. “At that point there's kind of a - there’s a gun. Where's the gun?” 

He didn’t produce it and all she could do was hold him in jail for the maximum time allowed.

“The court would rather have the firearm, right? But how else do we get the gun? We just could not do that,” said Earley.

To address that hurdle, Palos is trying to bring to Cleveland a process used in other courts around the country, including in Miami and Seattle.

The accused has to fill out a form under oath stating what guns they have. Then they have to prove to the court that the guns were turned in.

But that poses another problem, said Judge Palos. Who takes the gun when it’s turned in?

“The sheriff should do it, but it's very difficult - you don't want someone walking into the Justice Center with guns,” said Palos.

Under Palos’ proposed system, once the court starts using the forms to establish the presence of firearms, the next step will be signing up someone in Cuyahoga County to take those guns when they’re turned in.

“An option would be to get the police to do it. An option could be to hire an independent agency. An option could be to get a gun range to do it, something creative like that,” said Palos.

The judge hopes in the near future there will be a countywide system for gun seizures and a clear process that’s the same for every case.

“Think about how difficult this is,” said Palos. “Because as you know most people who have firearms have more than one so you might have someone bringing in 15 or 16 weapons,” 

And then there’s another problem five years down the road. When the protection order expires, someone is going to have to give the guns back.

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