Lawyers, guns and money
The concept was simple enough. Somebody claimed judges issuing relief from abuse orders refused to turn weapons over to police due to a lack of storage space. Thus H.735, the so-called "fee bill," would establish a fee to create more space. The bill arrived in the Senate Finance committee with two sentences about a fee charged for each weapon stored. Unfortunately, it also included four pages of judicial policy and procedure that stripped away constitutional rights by automatically requiring placement of all weapons in state custody. Judicial policy is not the realm of Senate Finance; it’s the realm of Senate Judiciary. As vice-chair of Senate Judiciary, my antenna went up.
I am not a gun owner or a member of the NRA. However, I have 30 years practicing law in relief from abuse and domestic assault cases, having represented both perpetrators and victims. I’m a charter member of the Caledonia County Task Force on Domestic Violence and the immediate past chair of Vermont’s Human Rights Commission.
Relief from abuse cases begin when someone files a petition alleging abuse. The accused has no notice and is not present in court. If approved, a temporary order is issued which can lead to a defendant’s weapons being removed.
The court is supposed to hold a final hearing within 10 days at which the accused is present, but this can get continued for various reasons, such as parties trying to retain a lawyer. Presently, no fees are charged.
While all domestic violence cases involve power and fear, the level of violence, the threat of future violence and the level of a victim’s fear can vary dramatically in each case. Judges are traditionally vested with the responsibility and authority to fashion final orders to fit the circumstances of each case. Under H.735, that judicial discretion is severely curtailed. An accused’s property is turned over to the state, for a fee, whether they are guilty or not. In a case involving numerous weapons, that fee could add up to thousands of dollars before the accused has had their day in court. This diminishes those constitutional protections that have served us all since 1791.
So Senate Judiciary recommended allowing judges the discretion to place weapons with an agreed-upon third party. That party would sign an affidavit acknowledging receipt and accepting responsibility, under threat of contempt, to keep those weapons from the defendant until that defendant’s due process rights are fulfilled. The judge would have to be convinced the plaintiff would be safe.
In the event the weapons are placed with law enforcement, there would be no fee charged until after a full merits hearing. Language in the final order would require automatic return of weapons upon expiration of the order, thus eliminating the need for yet another hearing. Hopefully this strikes a proper balance between the needs of the victim and the rights of the accused.
If our proposed language does not survive, some future defendant will no doubt spend lots of money on a lawyer to get their guns back.
Joe Benning is a senator representing the Caledonia-Orange District.
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